[Cite as State v. Boyd,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97234

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

SHANNON N. BOYD DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-547328

BEFORE: S. Gallagher, J., Blackmon, A.J., and Kilbane, J.

RELEASED AND JOURNALIZED: April 26, 2012 ATTORNEY FOR APPELLANT

Susan J. Moran 55 Public Square Suite 1616 Cleveland, OH 44113-1901

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Ronni Ducoff Mark J. Mahoney Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, J.:

{¶1} Appellant Shannon N. Boyd appeals the sentence she received for attempted

endangering children. For the reasons stated herein, we affirm.

{¶2} Boyd was indicted on two counts of endangering children in violation of R.C.

2919.22(A). Following plea negotiations, Boyd entered a plea of guilty to Count 1 as

amended to attempted endangering children in violation of R.C. 2923.02 and 2919.22(A),

a felony of the fourth degree. Count 2 was nolled.

{¶3} The transcript reflects that at the time of the incident, Boyd was a single

mother with six children under the age of ten. At the time of the underlying incident, her

youngest two children were six-month-old twins. On the evening of February 6, 2010,

Boyd was cooking dinner. Her six-month-old child S.B. was sleeping upstairs. After a

period of time, Boyd went upstairs to check on S.B. Boyd claimed she discovered S.B.

lying on a heating vent unresponsive. S.B. was taken to the Cleveland Clinic, but was

transferred to MetroHealth Medical Center because of the severity of the burns.

{¶4} The hospital confronted Boyd when it was determined that S.B. had scalding

burns, not contact burns. As such, Boyd’s account of what occurred was not consistent

with the injuries. Boyd claimed she inquired further and discovered that her

seven-year-old daughter tried to give the child a bath with water that later measured 150 degrees. Upon investigation, it was determined that at 155 degrees Fahrenheit, a child

will sustain a scalding burn injury in one-half of one second.

{¶5} Images of S.B. depicted the severity of the burn injuries she sustained to her

buttocks, genital area, back of the thighs, and inner thighs. S.B. will likely have scarring

for the rest of her life and is going to have problems with some normal functions for some

time.

{¶6} Defense counsel represented that Boyd felt horrible about the incident, she

cooperated with the investigation, she has only one prior misdemeanor offense, she has

sought to maintain a relationship with her children who have been removed from her

custody, and she has been compliant with the requests of Children and Family Services.

Defense counsel claimed Boyd is an overwhelmed mother who needs to find help with

her situation. When Boyd addressed the court, she apologized for the incident and

expressed her love for her children.

{¶7} The state argued that it was not until Boyd was confronted at the hospital that

the true nature of the burns was revealed. It further argued such injuries do not occur

from being “overwhelmed.” The state noted Boyd’s prior misdemeanor for endangering

children was for leaving her children home alone. The state further indicated that a

number of resources could have been made available to Boyd if she had chosen to use

them.

{¶8} The primary investigator on the case, Detective Charlie McNeeley, indicated

that the initial report of the child having been burned from a heater was clearly not what happened. He further found that resources were available to Boyd that had not been

taken advantage of for the care of her children. He believed the children were at risk

under her care.

{¶9} The trial court considered the purposes and principles of sentencing under

R.C. 2929.11, as well as the serious and recidivism factors under R.C. 2929.12. The

court reviewed the presentence investigation report and noted Boyd’s prior conviction for

endangering children. The court expressed that the prior conviction should have served

as a wake-up call and that Boyd had failed to avail herself of opportunities and support

with regard to being overwhelmed with the care of her children. The court found that the

injuries sustained by S.B. were severe, “the worst I have seen in my days here on the

bench.” The court considered that this was Boyd’s first felony offense, but found that to

be insignificant because of the level of harm perpetrated on the young child. The court

indicated that “this is certainly one of the worst cases of child neglect that I have seen.”

The court found a prison sentence was necessary to protect the public and not demean the

seriousness of the offense. The court proceeded to impose the maximum sentence of 18

months in prison and included three years of postrelease control.

{¶10} Boyd proceeded to express her belief that she had not harmed S.B. She

placed blame on the child’s father, who she claimed had “stepped out” without telling her.

{¶11} Boyd timely filed this appeal. Her sole assignment of error asserts that

“[t]he trial court abused its discretion by sentencing the appellant to a maximum

sentence.” {¶12} In State v. Kalish,

,

,

, the

Ohio Supreme Court, in a plurality decision, set forth a two-step approach for reviewing

felony sentences. Appellate courts must first “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.” Id. at ¶ 4. If the first

prong is satisfied, then “the trial court’s decision shall be reviewed under an

abuse-of-discretion standard.” Id. at ¶ 4 and 19.

{¶13} In the first step of our analysis, we review whether Boyd’s sentence is

contrary to law as required by R.C. 2953.08(G). As the Kalish court noted, post-Foster

“trial courts have full discretion to impose a prison sentence within the statutory range

and are no longer required to make findings and give reasons for imposing maximum * *

* or more than the minimum sentence.” Id. at ¶ 11, quoting State v. Foster,

,

,

. The Kalish court held that although

Foster eliminated mandatory judicial fact-finding, the trial court still must consider R.C.

2929.11 and 2929.12 when imposing a sentence. Kalish at ¶ 13.

{¶14} R.C. 2929.11(A) provides that

[A] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing[:] * * * to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both. {¶15} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses.

{¶16} The record in this case reflects that the trial court properly considered the

applicable sentencing statutes when imposing Boyd’s sentence. The court stated in its

judgment entry that Boyd’s prison term is consistent with R.C. 2929.11. Further, Boyd’s

sentence was within the statutory range. On these facts, we do not find that the sentence

was contrary to law.

{¶17} We next consider whether the trial court abused its discretion. An “abuse

of discretion” is more than an error of law or judgment; it implies that the court’s attitude

is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶18} We find nothing in the record to suggest that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. As outlined above, a review of the record

indicates that the trial court considered all required factors of the law and found that

prison was consistent with the purposes and principles of R.C. 2929.11. The court

allowed defense counsel the opportunity to advocate for mitigation of any penalty and

also allowed Boyd to address the court. Before imposing sentence, the court discussed

Boyd’s prior conviction for endangering children, Boyd’s failure to avail herself of

opportunities and support for the care of her children, the severity of the injuries sustained

by the young child, and the nature of the offense herein. While Boyd argues that she is an overwhelmed mother of six children, the record clearly supported the trial court’s

determination that this was not an excuse in this case. Further, while Boyd claims the

court was focused on the severity of the injuries to the child, as opposed to her

responsibility for the burns, the record reflects otherwise. The court clearly considered

Boyd’s neglect of her child, finding this to have been “one of the worst cases of child

neglect” the court had seen. Finding no abuse of discretion, we overrule Boyd’s sole

assignment of error.

{¶19} Judgment affirmed.

It is ordered that appellee recover from 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, A.J., and MARY EILEEN KILBANE, J., CONCUR