[Cite as State v. Evans,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA16 : vs. : Released: February 24, 2012 : LANDON C. EVANS, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

John A. Bay, Bay Law Office L.L.C., Columbus, Ohio, for Appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. _____________________________________________________________

McFarland, J.:

{¶1} This is an appeal from a Washington County Court of Common

Pleas journal entry sentencing Appellant to maximum and consecutive

prison terms totaling twenty-four years, stemming from his convictions of

involuntary manslaughter, unlawful sexual contact with a minor, tampering

with evidence and gross abuse of a corpse. On appeal, Appellant contends

that the trial court abused its discretion when it sentenced him to a

cumulative prison term of twenty-four years. As we conclude that the trial

court did not err or abuse its discretion in sentencing Appellant to maximum Washington App. No. 11CA16 2

and consecutive sentences, we overrule Appellant’s sole assignment of error.

Accordingly, we affirm the judgment of the trial court.

FACTS

{¶2} On April 5, 2011, Appellant pled guilty to a bill of information

containing the following: 1) one count of involuntary manslaughter, a

felony of the first degree, in violation R.C. 2903.04(A); six counts of

unlawful sexual contact with a minor, all fourth degree felonies, in violation

of R.C. 2907.04(A) & (B)(1); one count of tampering with evidence, a

felony of the third degree, in violation of R.C. 2921.12(A)(1); and one count

of gross abuse of a corpse, a felony of the fifth degree, in violation of R.C.

2927.01(B) & (C).1 These charges stemmed from an unlawful sexual

relationship between Appellant and his minor half-sister which culminated

in the birth, and ultimate death, of their child. Appellant did not request that

the transcript of the plea hearing be made part of the record on appeal; thus,

we are not aware of the facts stipulated to in support of the plea.

{¶3} On May 12, 2011, the trial court sentenced Appellant to the

following prison terms: 1) a definite period of ten years for involuntary

manslaughter; eighteen months on each of the six counts of unlawful sexual

1 The record indicates that Appellant was originally indicted on two counts of aggravated murder with specifications, two counts of unlawful sexual conduct with a minor, tampering with evidence and gross abuse of a corpse, prior to entering into an agreement with the State to plead guilty to the bill of information. Washington App. No. 11CA16 3

conduct with a minor; and five years for tampering with evidence.2 The trial

court further ordered that each of the prison terms be served consecutively to

one another, for a combined sentence of twenty-four years. It is from the

trial court’s May 20, 2011, journal entry that Appellant now brings his

timely appeal, asserting a single assignment of error for our review.

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED MR. EVANS TO A CUMULATIVE PRISON TERM OF 24 YEARS.”

LEGAL ANALYSIS

{¶4} In his sole assignment of error, Appellant contends that the trial

court abused its discretion when it sentenced him to a cumulative prison

term of twenty-four years. In support of his assignment of error, Appellant

contends that the trial court ignored the explicit direction of the sentencing

statutes, namely R.C. 2929.11(A). Appellant specifically argues that the

trial court did not consider the directives of the statute, that the sentence

“does little more to incapacitate the offender and deter him and others from

future crime than a 10 year sentence would[,]” and that the sentence “forfeits

the benefits of rehabilitation” and restitution possible with a lesser sentence.

Appellant also argues budget and prison overcrowding issues. The State 2 The record indicates that the parties stipulated that tampering with evidence and gross abuse of a corpse were allied offenses of similar import and merged for purposes of sentencing. Thus, no sentence was imposed for the conviction for gross abuse of a corpse. Washington App. No. 11CA16 4

contends that the trial court complied with all of the applicable rules and

statutes and did not abuse its discretion in sentencing Appellant.

{¶5} In State v. Kalish,

,

,

, the Supreme Court of Ohio announced the standard for

appellate review of felony sentences. We must employ a two-step analysis.

First, we must “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether

the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If

the sentence is not clearly and convincingly contrary to law, we review it for

an abuse of discretion. Id.

{¶6} If the trial court's sentence is outside the permissible statutory

range, the sentence is clearly and convincingly contrary to law. Kalish at ¶

15. Here, Appellant was convicted of involuntary manslaughter in violation

of R.C. 2903.04(A), which is a first degree felony, and was sentenced to a

definite prison term of ten years. The applicable version of R.C.

2929.14(A)(1)3 provides that “[f]or a felony of the first degree, the prison

term shall be three, four, five, six, seven, eight, nine or ten years.” Thus,

although a maximum sentence, Appellant’s ten year sentence falls within the

statutory range. 3 The current version of R.C. 2929.14 did not become effective until September 30, 2011. The bill of information states that the offense of involuntary manslaughter occurred on June 4-5, 2008. Thus, we apply the prior version of R.C. 2929.14, which has an effective date of January 1, 2008. Washington App. No. 11CA16 5

{¶7} Appellant was also convicted of six counts of unlawful sexual

conduct with a minor in violation of R.C. 2907.04(A) & (B)(1), each fourth

degree felonies. R.C. 2929.14(A)(4)4 provides that “[f]or a felony of the

fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven,

twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.”

Thus, although the trial court imposed eighteen month maximum sentences

on each count, each sentence was within the statutory range. Finally,

Appellant was convicted and sentenced on one count of tampering with

evidence, a third degree felony in violation of R.C. 2921.12 (A)(1). R.C.

2929.14(A)(3)5 provides that “[f]or a felony of the third degree, the prison

term shall be one, two, three, four, or five years.” Again, although the trial

court imposed the maximum five-year sentence, it was within the statutory

range. Thus, each individual sentence imposed by the trial court was within

the permissible statutory range. As such, Appellant’s total combined prison

sentence is within the statutory range for his various crimes and is not

clearly and convincingly contrary to law.

4 The current version of R.C. 2929.14 did not become effective until September 30, 2011. The bill of information charged Appellant with six counts of unlawful sexual conduct with a minor (one in April of 2007, one in May of 2007, one in June of 2007, on in July of 2007, one in August of 2007, and one in September of 2007). Thus, we apply the prior versions of R.C. 2929.14, which were in effect at those times, with effective dates of January 2, 2007, April 4, 2007, and April 5, 2007. 5 As the tampering with evidence offense occurred in the summer of 2008, we apply a prior version of R.C. 2929.14(A)(3) with an effective date of January 1, 2008. Washington App. No. 11CA16 6

{¶8} Appellant also appears to argue that his sentences are clearly and

convincingly contrary to law because the court did not consider the

directives R.C. 2929.11 and R.C. 2929.12. Sentencing courts are “no longer

required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences[,]” State v. Foster,

,

,

, at paragraph seven of the

syllabus; however, they must still consider R.C. 2929.11 and R.C. 2929.12

before imposing a sentence. Kalish at ¶ 13. As set forth above, Appellant

contends that the trial court’s imposition of maximum and consecutive

sentences did not comport with the directives of R.C. 2929.11 with regard to

the issues of deterrence, rehabilitation, and restitution. He also argues the

societal concern of prison overcrowding.

{¶9} Contrary to Appellant’s arguments, however, the trial court

expressly stated that it had considered “the principles and purposes of

sentencing pursuant to Ohio Revised Code Sections 2929.11 through

2929.19[.]” The trial court further stated in its sentencing entry as follows:

“The Court has weighed the seriousness and recidivism factors and has considered the over-riding purposes of felony sentencing to protect the public from future crime by this offender and others, and the purpose to punish this offender, and has considered the need for incapacitating this offender and deterring the offender and others from future crime, and for rehabilitating the offender. Thereupon the Court FINDS that the sentence it is about to impose is reasonably calculated to achieve these purposes, and is commensurate with, and does not demean the seriousness of the offender’s Washington App. No. 11CA16 7

conduct, and its impact upon the victim, and is consistent with sentences imposed for similar crimes committed by similar offenders.” Because Appellant’s combines sentences did not exceed the permissible

statutory range, and in light of the fact that the trial court expressly stated

that it considered the overriding purposes of the felony sentencing statutes,

we find Appellant’s sentences, both individually and cumulatively, are not

clearly and convincingly contrary to law.

{¶10} We must next determine whether the trial court abused its

discretion in selecting Appellant’s sentences. “The term ‘abuse of discretion’

implies that the court's attitude is arbitrary, unreasonable, or

unconscionable.” State v. Kulchar, Athens App. No. 10CA6, 2011-Ohio-

5144 at ¶ 48; citing State v. Adams (1980),

,

. As we recently explained in Kulchar:

“ ‘An “abuse of discretion” has * * * been found where a sentence is greatly excessive under traditional concepts of justice or is manifestly disproportionate to the crime or the defendant. Woosley v. United States (1973),

. * * * Where the severity of the sentence shocks the judicial conscience or greatly exceeds penalties usually exacted for similar offenses or defendants, and the record fails to justify and the trial court fails to explain the imposition of the sentence, the appellate court's [sic] can reverse the sentence. [ Id.] This by no means is an exhaustive or exclusive list of the circumstances under which an appellate court may find that the trial court abused its discretion in the imposition of [a] sentence in a particular case.’ ” Kulchar at ¶ 48; citing State v. Davis, Highland App. No. 06CA21,

, at ¶ 42:

{¶11} In the May 20, 2011, sentencing entry, the trial court found

several prison factors to be present, and also noted several factors which it Washington App. No. 11CA16 8

believed made the crimes more serious than the norm. Specifically, the trial

court found that the injury to the victim was made worse due to the age of

the victim, that Appellant caused serious psychological harm to the victim as

to the unlawful sexual conduct with a minor convictions, and that

Appellant’s relationship with the victim facilitated the offense. The trial

court further noted Appellant’s prior criminal record and that Appellant had

served a prior prison term. Finally, the trial court stated that “[a]though the

Defendant shows remorse as to the sexual assault crimes the Court finds the

Defendant shows no real remorse as to the remaining crimes, instead he

chose to blame the other party.”

{¶12} Based upon the foregoing, we cannot conclude that the trial

court acted in an arbitrary, unreasonable or unconscionable manner when it

selected Appellant’s sentences and then ordered them to be served

consecutively. As such, we overrule his sole assignment of error.

Accordingly, the decision of the trial court is affirmed.

JUDGMENT AFFIRMED. Washington App. No. 11CA16 9

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. and Harsha, J.: Concurs in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.