[Cite as State v. Slack,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No.

OKEY B. SLACK, II

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 11 CRI 089

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 9, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAMONA FRANCESCONI ROGERS TIMOTHY E. POTTS PROSECUTING ATTORNEY GOOD & POTTS, LLC PAUL T. LANGE 10 East Main Street ASSISTANT PROSECUTOR Ashland, Ohio 44805 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No.

2

Wise, J.

{¶1} Defendant-appellant Okey B. Slack, II, appeals his sentence and

conviction on one count of burglary entered in the Ashland County Court of Common

Pleas.

{¶2} Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶3} On the night of August 9, 2011, Kyle Dalkert, a victim in this case, awoke

to discover that someone had stolen his dog. The dog had been leashed in his backyard

and was now missing. Several neighborhood kids located the dog at a nearby house

where Appellant Okey B. Slack, II, and his co-defendant Michael Hudkins were hanging

out. Appellant and Hudkins refused to return the dog to Dalkert and instead asked the

kids to tell Dalkert to come down to the house.

{¶4} When Dalkert did not show, Appellant and Hudkins went to Dalkert's

home. When Dalkert came to the door, the two of them forced their way into the home

and attacked Dalkert and his girlfriend. While Hudkins attacked Dalkert, Appellant

choked his girlfriend, while repeatedly threatening her.

{¶5} Appellant then switched his attention to Dalkert, striking him repeatedly

and biting him on his shoulder. After assaulting Dalkert, Appellant kicked Dalkert's

girlfriend in the chest while she lay on the ground.

{¶6} As a result of the attack, Dalkert suffered a ruptured blood vessel in his

eye, along with various bruises, scratches, and the bite mark.

{¶7} Pursuant to a negotiated plea agreement, the State filed a Bill of

Information charging Appellant with one count of Burglary, a felony of the third degree. Ashland County, Case No.

3

{¶8} On August 25, 2011, Appellant waived his right to a preliminary hearing on

this charge and waived his right to be prosecuted by Indictment.

{¶9} On that same date, Appellant pled guilty to the burglary charge.

{¶10} On September 28, 2011, the trial court sentenced Appellant to five years

in prison.

{¶11} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶12} “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED A MAXIMUM SENTENCE UPON DEFENDANT/APPELLANT PURSUANT

TO OHIO REVISED CODE SECTION 2929.14(A)(3); SAID MAXIMUM SENTENCE

WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF

SAID COURT'S DISCRETION.

{¶13} “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE

AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED

CODE SECTION 2929.13(A).”

I.

{¶14} In his first Assignment of Error, Appellant argues that the trial court

abused its discretion in imposing a maximum sentence. We disagree.

{¶15} In the case sub judice, Appellant was convicted of Burglary, a felony of the

third degree.

{¶16} In a plurality opinion, the Supreme Court of Ohio established a two-step

procedure for reviewing a felony sentence. State v. Kalish,

, 2008- Ashland County, Case No.

4

Ohio-4912,

. The first step is to “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 this

first step “is satisfied,” the second step requires the trial court's decision be “reviewed

under an abuse-of-discretion standard.” Id.

{¶17} As a plurality opinion, Kalish is of limited precedential value. See Kraly v.

Vannewkirk (1994),

,

(characterizing prior case

as “of questionable precedential value inasmuch as it was a plurality opinion which

failed to receive the requisite support of four justices of this court in order to constitute

controlling law”). See, State v. Franklin (2009),

,

,

at ¶ 8. “Whether Kalish actually clarifies the issue is open to debate.

The opinion carries no syllabus and only three justices concurred in the decision. A

fourth concurred in judgment only and three justices dissented.” State v. Ross, 4th Dist.

No. 08CA872,

, at FN 2; State v. Welch, Washington App. No. 08CA29,

at ¶ 6.

{¶18} Nevertheless, until the Supreme Court of Ohio provides further guidance

on the issue, we will continue to apply Kalish to appeals involving felony sentencing.

State v. Welch, supra; State v. Reed, Cuyahoga App. No. 91767,

; State v. Ringler, Ashland App. No. 09–COA–008, 2009–Ohio–6280 at ¶ 20.

{¶19} In the first step of our analysis, we review whether the sentence is

contrary to law. In the case at bar, Appellant was sentenced on a felony of the third

degree. Upon conviction for a felony of the third degree, the potential sentence that the

trial court can impose is one, two, three, four or five years. R.C. §29.14(A)(3). Ashland County, Case No.

5

{¶20} Here, the trial court sentenced Appellant to five years.

{¶21} Upon review, we find that the trial court's sentencing on the charge

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised

Code and advised appellant regarding post-release control. Therefore, the sentence is

not clearly and convincingly contrary to law.

{¶22} Having determined that the sentence is not contrary to law we must now

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v.

Firouzmandi, supra at ¶ 40.

{¶23} In Kalish, the court discussed the affect of the Foster decision on felony

sentencing. The court stated that, in Foster, the Ohio Supreme Court severed the

judicial fact-finding portions of R.C. §2929.14, holding that “trial courts have full

discretion to impose a prison sentence within the statutory range and are no longer

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

more than the minimum sentences.” Kalish at ¶ 1 and 11, citing Foster at ¶ 100, See

also, State v. Payne,

,

,

; State v.

Firouzmandi, Licking App. No. 2006–CA–41,

.

{¶24} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ Ashland County, Case No.

6

13, see also State v. Mathis,

, 2006–Ohio–855,

; State v.

.

{¶25} Thus, post- Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v.

Delong, 4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post- Foster, trial

courts are still required to consider the general guidance factors in their sentencing

decisions.

{¶26} There is no requirement in R.C. §2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and

recidivism or even discussed them. State v. Polick (1995),

;

State v. Gant, Mahoning App. No. 04 MA 252, 2006–Ohio–1469, at ¶ 60 (nothing in

R.C. 2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial

court to set forth its findings), citing State v. Cyrus (1992),

; State

v. Hughes, Wood App. No. WD–05–024, 2005–Ohio–6405, at ¶ 10 (trial court was not

required to address each R.C. 2929.12 factor individually and make a finding as to

whether it was applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006–

Ohio–1342 at ¶ 19 (“... R.C. 2929.12 does not require specific language or specific

findings on the record in order to show that the trial court considered the applicable

seriousness and recidivism factors”). (Citations omitted).

{¶27} Where the record lacks sufficient data to justify the sentence, the court

may well abuse its discretion by imposing that sentence without a suitable explanation. Ashland County, Case No.

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Where the record adequately justifies the sentence imposed, the court need not recite

its reasons. State v. Middleton (Jan. 15, 1987), 8th Dist. No. 51545.

{¶28} In other words, an appellate court may review the record to determine

whether the trial court failed to consider the appropriate sentencing factors. State v.

Firouzmandi, 5th Dist No. 2006–CA41, 2006–Ohio–5823 at ¶ 52.

{¶29} Accordingly, appellate courts can find an “abuse of discretion” where the

record establishes that a trial judge refused or failed to consider statutory sentencing

factors. Cincinnati v. Clardy (1978),

,

.

{¶30} An “abuse of discretion” has also 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),

. The

imposition by a trial judge of a sentence on a mechanical, predetermined or policy basis

is subject to review.

at 143–145. 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 can reverse the sentence.

. 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 sentence in a particular case. State v.

{¶31} In the case at bar, the trial court had the benefit of a pre-sentence

investigation report. We also note that we do not know the specific contents of the pre-

sentence investigation report or victim impact statement as Appellant did not make them Ashland County, Case No.

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a part of the record. See State v. Untied (March 5, 1998), Muskingum App. No. CT97–

0018.

{¶32} Upon review of the record, we find no evidence the judge acted

unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on

impermissible factors, failing to consider pertinent factors, or giving an unreasonable

amount of weight to any pertinent factor. We find nothing in the record of Appellant's

case to suggest that his sentence was based on an arbitrary distinction that would

violate the Due Process Clause of the Fifth Amendment.

{¶33} Appellant’s first Assignment of Error is overruled.

II.

{¶34} In his second Assignment of Error, Appellant argues that the five-year

sentence imposed in this matter creates an unnecessary burden on the State’s

resources. We disagree.

{¶35} Specifically, Appellant argues that essentially the trial court erred by not

complying with the new sentencing law, House Bill 86, which came into effect on

September 30, 2011, two days after Appellant was sentenced. Appellant urges this

court to consider the purposes of the new sentencing reforms in determining whether

his sentence is an unnecessary burden on state and local government resources.

Appellant submits that under the new mandate a court must use the minimum sanctions

to accomplish the purposes and principles of sentencing without imposing an

unnecessary burden on state or local government resources, as set forth in R.C.

2929.11, as amended by 2011 Am.Sub.H.B. No. 86. Ashland County, Case No.

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{¶36} In State v. Ober, Second Dist No. 97CA0019,

(Oct. 10,

1997), the Second District considered this same issue. In rejecting the argument, the

court stated “Ober is correct that the ‘sentence shall not impose an unnecessary burden

on state or local government resources.’ R.C. 2929.19(A). According to criminal law

experts, this resource principle ‘impacts on the application of the presumptions also

contained in this section and upon the exercise of discretion.’ Griffin & Katz, Ohio

Felony Sentencing Law (1996–97), 62. Courts may consider whether a criminal

sanction would unduly burden resources when deciding whether a second-degree

felony offender has overcome the presumption in favor of imprisonment because the

resource principle is consistent with the overriding purposes and principles of felony

sentencing set forth in R.C.2929.11. Id.”

{¶37} The Ober court concluded, “[a]lthough resource burdens may be a

relevant sentencing criterion, R.C. 2929.13(D) does not require trial courts to elevate

resource conservation above the seriousness and recidivism factors. Imposing a

community control sanction on Ober may have saved state and local government funds;

however, this factor alone would not usually overcome the presumption in favor of

imprisonment.”

{¶38} Several other appellate courts, including our own, considering these

issues have reached the same conclusion. See, e.g ., State v. Hyland, Butler App. No.

CA2005–05–103, 2006–Ohio–339,

, ¶ 32; State v. Brooks, 10th Dist.

No. 97APA–11–1543,

(Aug. 18, 1998); State v. Stewart, 8th Dist. No.

74691,

(Mar. 4, 1999); State v. Fox, 3rd Dist. No. 16–2000–17,

(Mar. 6, 2001); State v. Miller, 5th Dist. No. 04–COA–003, 2004–Ohio– Ashland County, Case No.

10

4636,

. We agree with the reasoning of the Ober court and other

courts considering this issue and find no merit to Appellant's argument.

{¶39} Further, R.C. §2929.13(A), in effect at the time of Appellant's sentencing

provided, “[t]he sentence shall not impose an unnecessary burden on state or local

government resources.” However, “[t]he 2011 amendments to the sentencing statutes,

which became effective September 30, 2011, have deleted this sentence.” State v.

Saur, 10th Dist. No. 10AP-1195,

,

, fn. 1. Thus, the

amended version of the sentencing statute does not require the sentencing court to

consider the conservation principle set forth in former R.C. §2929.13(A). Id.

{¶40} Based on the foregoing, we find Appellant’s second Assignment of Error

not well-taken and overrule same.

{¶41} For the foregoing reasons, the judgment of the Court of Common Pleas,

Ashland County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.

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JUDGES JWW/d 0410 Ashland County, Case No.

11

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : OKEY B. SLACK, II : : Defendant-Appellant : Case No.

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of common Pleas of Ashland County, Ohio, is affirmed.

Costs assessed to Appellant.

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JUDGES