State v. Lee

[Cite as State v. Lee, 2013-Ohio-3404.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-09-182

: OPINION
- vs - 8/5/2013
:

JASON MICHAEL LEE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2011-03-0378

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Fred S. Miller, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011, for defendant-
appellant

RINGLAND, P.J.

{¶ 1} Defendant-appellant, Jason Michael Lee, appeals from his conviction in the

Butler County Court of Common Pleas for illegal processing of drug documents and

aggravated possession of drugs. For the reasons outlined below, we affirm.

{¶ 2} In March 2011, Lee was indicted on 12 counts of illegal processing of drug

documents in violation of R.C. 2925.23(A), fourth-degree felonies, and two counts of
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aggravated possession of drugs in violation of R.C. 2925.11, second-degree felonies.

Subsequently, Lee pleaded guilty to one count of illegal processing of drug documents and

two counts of aggravated possession of drugs. On September 28, 2011, a judgment of

conviction was entered whereby the trial court sentenced Lee to 18 months in prison for

illegal processing of drug documents, and eight-year mandatory prison terms for each of the

two aggravated possession of drugs charges. All sentences were to run concurrently with

each other and concurrent with a sentence imposed in Hamilton County for a separate

offense. Lee appealed.

{¶ 3} On appeal, we found that the trial court violated Lee's right to allocution and

reversed and remanded for resentencing. State v. Lee, 12th Dist. Butler No. CA2011-10-204

(June 18, 2012). At his resentencing hearing, Lee was given an opportunity to speak on his

behalf. On August 23, 2012, the court again sentenced Lee on the charges. Lee was

sentenced to 18 months in prison for illegal processing of drug documents and sentenced to

seven-year mandatory prison terms for each of the two aggravated possession of drugs

charges. All sentences were again to run concurrently with each other and concurrent with a

sentence imposed in Hamilton County for a separate offense.

{¶ 4} Lee now appeals from the resentencing judgment entry of conviction, asserting

one assignment of error for review:

{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT SENTENCED HIM TO SEVEN YEARS OF MANDATORY TIME ON

EACH COUNT OF AGGRAVATED POSSESSION OF DRUGS.

{¶ 6} Lee argues that his sentence was contrary to law. Specifically, Lee asserts that

the trial court failed to consider the seriousness and recidivism factors in R.C. 2929.12 and

failed to consider the overall purposes of sentencing as required by R.C. 2929.11.

Furthermore, Lee argues that the trial court failed to impose a sentence that is the same as a
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codefendant who committed similar conduct. Finally, Lee contends that the trial court should

not have sentenced him to seven years mandatory time in prison for his aggravated

possession of drugs charges because it impacts his ability to receive judicial release. We

disagree.

{¶ 7} At the outset, we note that this court has consistently reviewed felony

sentences under the two-step approach as outlined by the Ohio Supreme Court in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. See, e.g., State v. Birt, 12th Dist. Butler No.

CA2012-02-031, 2013-Ohio-1379; State v. Gatliff, 12th Dist. Clermont No. CA2012-06-045,

2013-Ohio-2862; State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607.

However, in our recent decision, State v. Crawford, 12th Dist. Clermont No. CA2012-12-088,

2013-Ohio-3315, we stated that "'the post-Foster era ended with the enactment of 2011

Am.Sub.H.B. No. 86, effective September 30, 2011 * * *.'" Id. at ¶ 6, quoting State v. Venes,

8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 8. As a result, we found that "'rather than

continue to apply the two-step approach as provided by Kalish'" in reviewing felony

sentencing, "'the standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony

sentences.'" Id., quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7.

{¶ 8} When considering an appeal of a trial court's felony sentencing decision under

R.C. 2953.08(G)(2), "[t]he appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing." However, as explicitly stated in R.C.

2953.08(G)(2), "[t]he appellate court's standard for review is not whether the sentencing court

abused its discretion." Rather, the appellate court may take any action authorized under

R.C. 2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record

does not support the sentencing court's findings under division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
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Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law."

{¶ 9} In making such a determination, it is "important to understand that the clear

and convincing standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford

at ¶ 8, quoting Venes, 2013-Ohio-1891 at ¶ 21. "It does not say that the trial judge must

have clear and convincing evidence to support its findings." Id. Quite the contrary, "it is

the court of appeals that must clearly and convincingly find that the record does not

support the court's findings." Id. Simply stated, the language in R.C. 2953.08(G)(2)

establishes an "extremely deferential standard of review" for "the restriction is on the

appellate court, not the trial judge." Id.

{¶ 10} That said, "[a]lthough Kalish no longer provides the framework for reviewing

felony sentences, it does provide this court with adequate guidance for determining whether

a sentence is clearly and convincingly contrary to law." A.H., 2013-Ohio-2525 at ¶ 10. "A

sentence is not clearly and convincingly contrary to law, where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly applies postrelease control, and sentences appellant within the permissible range."

State v. Micomonaco, 12th Dist. Butler No. CA2011-07-139, 2012-Ohio-5239, ¶ 48, citing

Kalish at ¶ 18.

{¶ 11} In light of the arguments raised by Lee, our review is limited to determining

whether his sentence is clearly and convincingly contrary to law. See A.H. at ¶ 9. While the

trial court did not specifically verbalize at the resentencing hearing that it had considered the

overriding purposes and principles of felony sentencing as outlined in R.C. 2929.11, nor the

seriousness and recidivism factors listed in R.C. 2929.12, the trial court made clear in its

sentencing entry that it had properly considered these necessary sentencing statutes. See

State v. Lancaster, 12th Dist. Butler No. CA2007-03-075, 2008-Ohio-1665, ¶ 4; State v.

Leopard, 2d Dist. Clark No.2010-CA087, 2011-Ohio-3864, ¶ 44; State v. Parsons, 3d Dist.
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Auglaize No. 2-10-17, 2011-Ohio-168, ¶ 16. In fact, the trial court specifically stated in its

sentencing entry that it considered "the principles and purposes of sentencing under Ohio

Revised Code Section 2929.11, and * * * balanced the seriousness and recidivism factors of

Ohio Revised Code Section 2929.12." Consequently, Lee's sentence is not contrary to law

merely because the trial court failed to specifically cite to either statute during his

resentencing hearing. See State v. Hall, 12th Dist. Warren No. CA2011-05-043, 2011-Ohio-

5748, ¶ 7; State v. Hensley, 12th Dist. Butler No. CA2011-04-078, 2011-Ohio-6350, ¶ 7.

{¶ 12} R.C. 2929.11(B) provides in relevant part that "[a] sentence imposed for a

felony shall be * * * consistent with sentences imposed for similar crimes committed by

similar offenders." Consistency in sentencing, however, does not require uniformity. State v.

Isreal, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio-1474, ¶ 70. A defendant has no

substantive right to a particular sentence within the statutorily authorized range, and there is

no requirement that codefendants receive equal sentences. State v. Hall, 10th Dist. Franklin

No. 09AP-302, 2009-Ohio-5712, ¶ 9. Furthermore, "[a] consistent sentence is not derived

from a case-by-case comparison, but from the trial court's proper application of the statutory

sentencing guidelines." Isreal at ¶ 72. Consequently, in order for a defendant to successfully

claim inconsistent sentencing, the defendant must show that the trial court failed to properly

consider the statutory sentencing factors and guidelines found in R.C. 2929.11 and 2929.12.

Id.

{¶ 13} We reject the argument that Lee's sentence is contrary to law because the trial

court failed to impose a sentence that is the same as another offender who committed similar

conduct. Each prison term was within the applicable statutory range and, as discussed

above, the trial court considered the statutory factors and guidelines found in R.C. 2929.11

and 2929.12. Isreal at ¶ 73; Micomonaco, 2012-Ohio-5239 at ¶ 53.

{¶ 14} Finally, Lee argues that the length of the mandatory sentence of seven years
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directly impacts his ability to apply for judicial release. R.C. 2929.20(C)(1) provides that

when a sentence is mandatory an eligible offender may not apply for judicial release earlier

than "thirty days after the expiration of all mandatory prison terms." Lee pleaded guilty to two

counts of aggravated possession of drugs; the drugs involved, specifically Oxycodone,

equaled or exceeded five times the bulk amount but less than 50 times the bulk amount,

felonies in the second degree. See R.C. 2925.11(C)(1)(c). In such a situation "the court

shall impose as a mandatory prison term one of the prison terms prescribed for a felony of

the second degree." Id. "For a felony of the second degree, the prison term shall be two,

three, four, five, six, seven, or eight years." R.C. 2929.14(A)(2). Consequently, the

mandatory prison term of seven years for each of the two aggravated possession of drug

charges ordered to be served concurrently was mandatory and within the applicable statutory

range, regardless of any effect on Lee's ability to obtain judicial release with a lesser

mandatory term.

{¶ 15} Furthermore, while the General Assembly has explicitly stated that with the

passage of R.C. 2953.08(G)(2) the appropriate standard of review for this court is not abuse

of discretion, if we were to review this matter for an abuse of discretion, we would find that

the trial court did not abuse its discretion sentencing Lee. In addition to considering the

appropriate factors, the trial court considered the extent of Lee's involvement. While Lee's

sentence was longer than the sentence of his codefendant, the trial court recognized that Lee

was "kind of the brains behind the operation" and "kind of the king pin."

{¶ 16} In light of the foregoing, we cannot say the trial court's decision to sentence Lee

to seven years in prison on each aggravated possession of drug offense and 18 months in

prison for illegal processing of drug documents to run concurrently, a longer term than his co-

defendant, is contrary to the standard of review outlined by R.C. 2953.08(G)(2). Lee's sole

assignment of error is overruled.
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{¶ 17} Judgment affirmed.

PIPER and M. POWELL, JJ., concur.

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