[Cite as State v. Reynolds,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96412

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

EDMOND REYNOLDS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-530504

BEFORE: Cooney, J., Stewart, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: February 16, 2012 2

ATTORNEY FOR APPELLANT

Joseph Vincent Pagano P.O. Box 16869 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Erin Stone Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113

COLLEEN CONWAY COONEY, J.:

{¶1} Defendant-appellant, Edmond Reynolds (“Reynolds”), appeals his sentence

for violating probation and community control sanctions. Finding no merit to this

appeal, we affirm.

{¶2} In November 2009, Reynolds was indicted on one count of drug trafficking,

two counts of drug possession, and one count of theft. He pled guilty to one count of

drug possession and one count of theft. The remaining charges were nolled. His

six-month prison sentence was suspended, and he was placed on 18 months of probation. 3

Reynolds was informed that if he violated probation, he could face a six-month prison

term.

{¶3} In addition, Reynolds was sentenced to 18 months of community control

sanctions on the drug possession conviction. The court ordered him to complete an

outpatient drug treatment program, 100 hours community service, random drug testing,

and fulfill case management and reporting requirements pursuant to probation and

community control sanctions. Reynolds was ordered to pay $80 in restitution, maintain

employment, and complete the “Thinking For a Change” program. The court explicitly

warned Reynolds during sentencing that if he violated community control sanctions, he

would receive 12 months in prison.

{¶4} Eleven months later, in January 2011, Reynolds was brought before the trial

court after violating community control sanctions. The court revoked his community

control sanctions and sentenced him to 12 months in prison. Reynolds now appeals,

raising one assignment of error in which he argues that his sentence is contrary to law and

an abuse of discretion. First, we note that his sentence is completed, and therefore his

appeal is moot.

{¶5} Nevertheless, we review felony sentences using the Kalish framework.

State v. Kalish,

,

,

. The Kalish court,

in a split decision, declared that in applying State v. Foster,

, 4

,

, to the existing statutes, appellate courts “must apply a

two-step approach.” Kalish at ¶ 4.

{¶6} 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 this first prong is

satisfied, then we review the trial court’s decision under an abuse-of-discretion standard.

Id. at ¶ 4, 19.

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

to law as required by R.C. 2953.08(G).

{¶8} 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, consecutive or more than the minimum

sentence.” Id. at ¶ 11; Foster, paragraph seven of the syllabus; State v. Mathis,

,

,

, paragraph three of the syllabus. See also

State v. Redding, 8th Dist. No. 90864,

; State v. Ali, 8th Dist. No.

90301,

; State v. McCarroll, 8th Dist. No. 89280,

; State

v. Sharp, 8th Dist. No. 89295,

. The Kalish court declared that although

Foster eliminated mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12 intact.

Kalish,

,

,

. As a result, the 5

trial court must still consider these statutes when imposing a sentence.

citing Mathis

at ¶ 38.

{¶9} 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.

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.

{¶10} The Kalish court also noted that R.C. 2929.11 and 2929.12 are not

fact-finding statutes like R.C. 2929.14. Kalish at ¶ 17. Rather, they “serve as an

overarching guide for trial judges to consider in fashioning an appropriate sentence.” Id.

Thus, “[i]n considering these statutes in light of Foster, the trial court has full discretion

to determine whether the sentence satisfies the overriding purposes of Ohio’s sentencing

structure.” Id.

{¶11} In the instant case, we do not find Reynolds’s sentence contrary to law.

His 12-month sentence is within the permissible statutory range for a community control

violation in connection with his conviction for drug possession, a fifth degree felony.

His six-month sentence is within the permissible statutory range for a probation violation 6

in connection with his conviction for theft, a first degree misdemeanor. The two

sentences were ordered to run concurrently. Thus, we find the sentence is not contrary

to law.

{¶12} Having satisfied the first step, we next consider whether the trial court

abused its discretion. Kalish,

,

,

. “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.”’” Id. at ¶ 19, quoting

Blakemore v. Blakemore,

,

(1983), quoting State

v. Adams,

,

(1980).

{¶13} Reynolds argues that the trial court abused its discretion by imposing a

12-month sentence in accordance with a blanket policy never to impose minimum

sentences, as opposed to considering only the particular facts and circumstances of his

case. However, after a thorough review of the record, we find that the trial court did not

abuse its discretion in imposing a 12-month prison sentence. The transcript indicates

that Reynolds was warned on more than one occasion that based on his recidivism, if he

violated community control sanctions, he would be sentenced to 12 months in prison. In

addition, the court heard from the probation officer who testified that Reynolds had not

reported since February 11, 2010. The probation officer also testified that Reynolds

failed to 1) complete the 100 hours of community service, 2) complete the “Thinking for

a Change” program, 3) submit to random drug testing, 4) pay the $80 in restitution, and 5) 7

complete outpatient drug treatment. When asked if Reynolds had done “anything,” the

officer indicated that Reynolds had done “nothing.” Thus, it is clear that the trial court

imposed a sentence directly related to the specific facts and circumstances of this case and

not pursuant to a policy.

{¶14} Moreover, during both the original sentencing and the subsequent

imposition of sentence after the violations, the court allowed defense counsel the

opportunity to advocate for mitigation of any penalty. The court also allowed Reynolds

to address the court. Before imposing sentence, the court discussed Reynolds’s

extensive criminal history and his repeated violations of probation and community control

sanctions.

{¶15} Thus, we find nothing in the record to suggest that the trial court’s

decision was unreasonable, arbitrary, or unconscionable. Accordingly, Reynolds’s sole

assignment of error is overruled.

{¶16} Judgment affirmed.

It is ordered that 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 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. 8

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

the Rules of Appellate Procedure.

______________________________________________ COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., CONCURS; MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY