[Cite as State v. Foster,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98869

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RONALD FOSTER DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-556414

BEFORE: Rocco, J., Stewart, A.J., and Keough, J.

RELEASED AND JOURNALIZED: May 30, 2013 ATTORNEY FOR APPELLANT

Michael P. Maloney 24441 Detroit Road Suite 300 Westlake, OH 44145

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Katherine Mullin Adam Chaloupka Assistant County Prosecutors Justice Center 1200 Ontario Street Cleveland, OH 44113 KENNETH A. ROCCO, J.:

{¶1} Defendant-appellant Ronald Foster appeals from his sentences for receiving

stolen property, failure to comply with the order of a police officer (“failure to comply”),

and endangering children. Foster sets forth two assignments of error, both of which

allege that the trial court failed to make necessary findings before rendering the sentences.

Finding no merit to either assignment of error, we affirm the trial court’s final judgment.

{¶2} Foster was charged on a multiple-count indictment, and, ultimately, he

pleaded guilty to three of the counts: one count of receiving stolen property, a violation of

R.C. 2913.51(A) and a fourth-degree felony; one count of failure to comply, a violation of

R.C. 2921.331(B) and a fourth-degree felony; and one count of endangering children, a

violation of R.C. 2919.22(A) and a first-degree misdemeanor. The remaining counts

were nolled. The trial court sentenced Foster to a prison sentence of 18 months for

receiving stolen property, 18 months for failure to comply, and 180 days for child

endangerment. The trial court merged the 180-day sentence with the other two sentences

but ordered that the two 18-month sentences would run consecutively to each other, for a

total of 36

months imprisonment.1 It is from these sentences that Foster now appeals,

1 Foster’s appeal stems from Case No. CR-556414. He was separately indicted in Case No. CR-561516, and when he entered guilty pleas in Case No. CR-556414, he also pleaded guilty to certain charges in Case No. CR-561516. The trial court sentenced Foster in both cases on the same day, and the sentences in each case were ordered to be served consecutively. The instant appeal involves only the sentences imposed in Case No. 556414. setting forth two assignments of error for our review:

I. The trial court erred in sentencing Foster, because it failed to make the requisite findings under R.C. 2921.331.

II. The trial court erred in sentencing Foster to maximum consecutive sentences for receiving stolen property and failure to comply.

{¶3} In his first assignment of error, Foster argues that the trial court erred in

failing to make necessary findings under R.C. 2921.331 before sentencing Foster for

failure to comply. Foster is mistaken, because the provision he relies on is inapplicable

in this case.

{¶4} Under R.C. 2921.331(C)(5)(b), the trial court is required to consider a

number of factors in rendering its sentence for failure to comply “[i]f a police officer

pursues an offender who is violating division (B) of this section and division (C)(5)(a) of

this section applies * * *.” Foster was convicted under R.C. 2921.331(B), so the trial

court was required to consider the factors if division (C)(5)(a) applied. R.C.

2921.331(C)(5)(a) pertains to a failure-to-comply violation only if it is a third-degree

felony. Foster was indicted for and pleaded guilty to a fourth-degree felony for failure to

comply. Accordingly, division (C)(5)(a) did

not apply, and the trial court was not required to consider the factors enumerated in R.C.

2921.331(C)(5)(b) before rendering its sentence for failure to comply. Foster’s argument

is wholly without merit, and we overrule the first

assignment of error. {¶5} In his second assignment of error, Foster argues that the trial court erred in

imposing the maximum consecutive sentences for failure to comply and for receiving

stolen property. Foster concedes that on the facts of this case, R.C. 2921.331(D) applies,

which mandated that the trial court impose consecutive sentences for failure to comply

and receiving stolen property. R.C. 2921.331(D) provides that “[i]f an offender is

sentenced pursuant to division (C)(4)2 or (5) of this section for a violation of division (B)

of this section, and if the offender is sentenced to a prison term for that violation, the

offender shall serve the prison term consecutively to any other prison term or mandatory

prison term imposed upon the offender.” (Emphasis added.) Foster argues that,

nonetheless, the trial court was required to make findings under R.C. 2929.14(C)(4)

before imposing the consecutive sentences on Foster. We disagree.

{¶6} R.C. 2929.14(C)(4) provides trial courts with discretion to impose

consecutive sentences under certain circumstances, and requires trial courts to make

specific findings before exercising that discretion. In contrast, under R.C. 2921.331(D),

the trial court lacked discretion; rather, the trial court was required to impose the

consecutive sentences. Accordingly, the trial court did not need to make findings under

R.C. 2929.14(C)(4) before imposing consecutive sentences on Foster.

{¶7} Foster also argues under this assignment of error that the trial court did not

adequately consider the R.C. 2929.12 factors when rendering its sentences for receiving

stolen property and for failure to comply. Foster’s argument here is not an argument

R.C. 2921.331(C)(4) pertains to fourth-degree felonies for failure to comply. 2 against consecutive sentences, but, rather, an argument as to the length of those sentences.

{¶8} When a defendant argues that his sentence was imposed erroneously, our task

is to meaningfully review the trial court’s sentencing decision. State v. Goins, 8th Dist.

No. 98256,

. An appellate court may modify or vacate a sentence

only if it is clearly and convincingly contrary to law. R.C. 2953.08(G)(2). We conclude

that the trial court engaged in a thorough analysis of the R.C. 2929.12 factors when

rendering Foster’s sentences, and we do not find the sentence clearly and convincingly

contrary to law.

{¶9} R.C. 2929.11(A) sets forth that when a trial court sentences an offender for a

felony conviction it must be guided by the “overriding purposes of felony sentencing.”

Those purposes are “to protect the public from future crime by the offender and others

and to punish the offender using the minimum sanctions that the court determines

accomplish those purposes,” while ensuring that the sentence does not “impos[e] an

unnecessary burden on state or local government resources.”

In order to fulfill this

purpose, the trial court must “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. 2929.11(B) states

that a felony sentence must also “be reasonably calculated to * * * [be] commensurate

with and not demeaning to the seriousness of the crime and its impact on the victim, and

consistent with sentences imposed for similar crimes committed by similar offenders.”

Finally, R.C. 2929.12 sets forth a nonexhaustive list of factors that a trial court must consider when rendering its sentence so as to determine the seriousness of the offense and

the likelihood of recidivism.

{¶10} Although a trial court is not required to use “‘talismanic words to comply

with the guidelines and factors for sentencing,’” it must be clear from the record that the

trial court actually made the required statutory findings. State v. Matthews, 8th Dist. No.

97916,

, quoting State v. Brewer, 1st Dist. No. C-000148,

, *10 (Nov. 24, 2000). The requirements are satisfied “when the

record reflects that the court has engaged in the required analysis and has selected the

appropriate statutory criteria.” Matthews.

{¶11} In the instant case, the trial court imposed the maximum sentences, and

stated on the record that, in doing so, it was considering the R.C. 2929.12 factors. First,

the trial court found that “this is one of the worst forms of the offense * * *.” Tr. 28. In

support of this statement the trial court noted that Foster had “[his] young children in the

car; that [he] almost hit a school bus filled with children, that [his] car spun out, almost

hitting other cars in the street; that [he] took off at a high rate of speed,” and then he “ran

away, le[aving] [his] two seven-month-old twins to fend for themselves.” Tr. 28. The

trial court next considered the seriousness of the offense under R.C. 2929.12(B) stating

that “[Foster’s] children did suffer harm in this matter, they were thrown out of their car

seats, in between the seats.” Tr. 29. The trial court found that none of the other R.C.

2929.12(B) factors applied.

The trial court also considered the mitigation factors set forth under R.C. 2929.12(C) and found that “[t]here are no substantial grounds that

mitigate your conduct.”

{¶12} Turning to R.C. 2929.12(D), the trial court considered the likelihood of

recidivism and found that Foster had “a history of criminal convictions” and that “[he]

ha[d] not responded favorably to sanctions previously imposed.” Id. at 30. The trial

court noted that Foster had three previous cases, “one of which [the trial court] believe[d]

[Foster] w[as] on probation for, [Foster] violated that by picking up the other cases * *

*,” and a prison sentence had been imposed. Id. The trial court also noted that Foster

demonstrated a pattern of alcohol and drug-related offenses. After summarizing the

factors making recidivism more likely, the trial court found only one factor making

recidivism less likely: that Foster appeared to show genuine remorse now that he was

sober. Id. Ultimately, “[t]hat [was] not enough for [the trial court] to overcome giving

[Foster] what [it] believed was an appropriate sentence in this matter.” Id.

{¶13} As the foregoing illustrates, when rendering its sentences, the trial court

properly considered the seriousness of the offenses and the risk of recidivism, as required

under R.C. 2929.12; and the sentences imposed comported with the sentencing purposes

set forth in R.C. 2929.11. In short, the trial court touched every base in what was a very

thorough sentencing hearing. Accordingly, the second assignment of error is without

merit.

{¶14} The trial court’s judgment is 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 be sent to said court to carry this judgment into

execution.

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

Rule 27 of the Rules of Appellate Procedure.

____________________________________ KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR