[Cite as State v. Davis, 2013-Ohio-1627.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 12 CA 59
MICHAEL P. DAVIS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 11 CR 480
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 22, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT J. MATTHEW DAWSON
PROSECUTING ATTORNEY 35 South Park Place, Suite 10
JUSTIN T. RADIC Newark, Ohio 43055
ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 12 CA 59 2
Wise, J.
{¶1} Appellant Michael P. Davis appeals from his conviction and sentence for
grand theft in the Court of Common Pleas, Licking County. The relevant facts leading to
this appeal are as follows.
{¶2} On September 30, 2011, appellant was indicted on one count of grand
theft, R.C. 2913.02(A)(1) and/or (A)(3), a felony of the fourth degree, and one count of
telecommunications fraud, R.C. 2913.05(A), a felony of the fourth degree. The charges
were essentially based on appellant’s conduct in a scheme to obtain money or credits
following fraudulent deposits into ATM machines.
{¶3} On May 16, 2012, appellant entered pleas of guilty to both of the aforesaid
counts. The trial court, upon accepting the pleas, chose to order an updated
presentence investigation report and defer sentencing to another date. However, about
one hour later, the case was reconvened after deputies informed the judge that
appellant was causing problems at the jail. See Tr. Plea and Sentencing, at 30. The
court then proceeded with sentencing over the request of appellant and his counsel to
defer the hearing. The trial court merged count two into count one and sentenced
appellant to eighteen months in prison. The trial court also sentenced appellant to a
post-release control term of two years, stating orally that this part of the decision was
based chiefly on appellant's reported conduct and threats and that the court was “just
not going to put up with this crap ***.” Tr. at 35.
{¶4} On July 13, 2012, appellant filed a notice of appeal, thereafter obtaining
leave from this Court for filing on a delayed basis. He herein raises the following two
Assignments of Error:
Licking County, Case No. 12 CA 59 3
{¶5} “I. WHETHER OR NOT THE TRIAL COURT'S SENTENCING WAS
CLEARLY AND CONVINCINGLY CONTRARY TO LAW AS IT DID NOT CONSIDER
THE STATUTORY FACTORS OF OHIO REVISED CODE SECTIONS 2929.11 AND
2929.12?
{¶6} “II. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION
IN THE IMPOSITION OF SENTENCING.”
I.
{¶7} In his First Assignment of Error, appellant contends the trial court erred in
sentencing him without properly considering the statutory factors under R.C. 2929.11
and 2929.12. We disagree.
{¶8} R.C. 2929.11 and 2929.12 require consideration of the purposes and
principles of felony sentencing, as well as the factors of seriousness and recidivism.
See State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38. Although
the Ohio Supreme Court’s Foster decision [109 Ohio St.3d 1, 2006–Ohio–856]
eliminated mandatory judicial fact-finding, it left intact R.C. 2929.11 and 2929.12. See
State v. Hobby, Ashland App.No. 11 COA 41, 2012–Ohio–2420, ¶ 25, citing State v.
Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, ¶ 13. Thus, “in exercising
its discretion, a court is merely required to ‘consider’ the purposes of sentencing in R.C.
2929.11 and the statutory * * * factors set forth in R.C. 2929.12.” State v. Sutton, 8th
Dist. No. 97132, 2012–Ohio–1054, ¶ 11, quoting State v. Lloyd, 11th Dist. No. 2006–L–
185, 2007–Ohio–3013, ¶ 44. The findings of the trial court in regard to R.C. 2929.11
and 2929.12 need not be in the sentencing transcript if the findings are contained in the
Licking County, Case No. 12 CA 59 4
journal entry. See State v. O’Donnell, Summit App.No. 23525, 2007-Ohio-1943, ¶ 7
(additional citations omitted).
{¶9} The judgment entry in the case sub judice states that prior to imposing
sentence, the trial court had considered inter alia "the purposes and principles of
sentencing" and had "balanced the seriousness and recidivism factors." See Judgment
of Conviction and Sentence, May 16, 2012, at 2. Although appellant herein asserts that
the trial court “simply was aggravated at [him] and wanted him gone,” (Appellant’s Brief
at 9), upon review we find the trial court sufficiently considered the sentencing factors
set forth in R.C. 2929.11 and 2929.12.
{¶10} Appellant's First Assignment of Error is overruled.
II.
{¶11} In his Second Assignment of Error, appellant argues the trial court abused
its discretion in sentencing him on the merged count of grand theft. We disagree.
{¶12} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, a
plurality opinion, the Ohio Supreme Court established a two-step procedure for
reviewing a felony sentence. 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. But we have recognized that “[w]here the
record lacks sufficient data to justify the sentence, the court may well abuse its
discretion by imposing that sentence without a suitable explanation.” State v.
Firouzmandi, Licking App.No. 2006–CA–41, 2006–Ohio–5823, ¶ 52.
Licking County, Case No. 12 CA 59 5
{¶13} In the case sub judice, the sentence at issue is within the statutory range
for a fourth-degree felony. See R.C. 2929.14(A)(4). Additionally, at the sentencing
hearing the trial court considered appellant's prior criminal record and his performance
on both supervision and while he was institutionalized. Tr. at 20, 35. The court allowed
both appellant and counsel for appellant to make statements regarding sentencing. Tr.
at 17, 19, 31-33. Appellant’s counsel indicated that appellant has “a severe drug
problem,” but that he had not obtained treatment during his two prior prison stints. Tr. at
32. Appellant asserted he did not understand why he was brought back that day to
complete sentencing. Id. Appellant apologized to the court and stated that he wanted to
“be there” for his soon-to-be-born daughter. Tr. at 33.
{¶14} Upon review, we hold the trial court did not abuse its discretion in
sentencing appellant to prison for eighteen months, with post-release control, even
though the trial court retracted its decision to obtain a PSI report. The prison term was
within the statutory ranges, the trial court considered the statutory factors for
sentencing, and the trial court duly considered appellant’s available history and criminal
record.
Licking County, Case No. 12 CA 59 6
{¶15} Appellant's Second Assignment of Error is therefore overruled.
{¶16} For the foregoing reasons, the decision of the Court of Common Pleas,
Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0328
Licking County, Case No. 12 CA 59 7
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MICHAEL P. DAVIS :
:
Defendant-Appellant : Case No. 12 CA 59
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES