[Cite as State v. Sothen, 2017-Ohio-8033.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
SHANE SOTHEN : Case No. 17-CA-11
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
16 CR 320
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 29, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
HAWKEN FLANAGAN KATHERINE L. WOLFE
Assistant Prosecuting Attorney Wolfe Law Group, LLC
20 South Second Street, 4th Floor 1350 W. 5th Ave., Suite 124
Newark, Ohio 43055 Columbus, Ohio 43212
Licking County, Case No. 17-CA-11 2
Baldwin, J.
{¶1} Defendant-appellant Shane Sothen appeals his sentence issued by the
Licking County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 1, 2015, during execution of a search warrant at appellant’s
residence, officers from the Central Ohio Drug Enforcement Task Force found a large
marijuana growing operation located within 1,000 feet of a school. The total weight of the
marijuana was 23,604 grams. Appellant indicated to the officers that he was growing
marijuana to help pay bills.
{¶3} On June 2, 2016 the Licking County Grand Jury indicted appellant on one
count of illegal cultivation of marijuana in violation of R.C. 2925.04(A)(C)(1)(5)(f), a felony
of the first degree, and one count of possession of marijuana in violation of R.C. 2925.11
(A)(C)(3)(f), a felony of the second degree. At his arraignment June 28, 2016, appellant
entered a plea of not guilty to the charges.
{¶4} Thereafter, on January 10, 2017, appellant withdrew his former not guilty
plea and entered a plea of guilty to both charges. The trial court found that the two counts
merged for purposes of sentencing and appellee elected to have the trial court sentence
appellant for possession of marijuana. Pursuant to a Judgment Entry filed on the same
date, appellant was sentenced to a mandatory eight year prison term, the maximum
sentence for a felony of the second degree, and ordered to pay a mandatory fine in the
amount of $15,000.00. Appellant’s driving privileges were suspended for a period of five
years.
{¶5} Appellant now appeals, raising the following assignment of error on appeal:
Licking County, Case No. 17-CA-11 3
{¶6} I. THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CONTRARY
TO LAW WHEN IT ORDERED APPELLANT TO SERVE EIGHT YEARS
INCARCERATION AND IMPOSED A $15,000.00 FINE, THE MAXIMUM PRISON
SENTENCE FOR FELONIES OF THE SECOND DEGREE.
I
{¶7} Appellant, in his sole assignment of error, appeals his maximum sentence.
Appellant specifically contends that there is not clear and convincing evidence in the
record supporting the sentence and that the sentence supports the purposes and
principles of sentencing set out under R.C. 2929.11 and 2929.12.
{¶8} In accordance with R.C. 2953.08(A)(1), appellant is entitled to appeal as of
right the maximum sentence imposed on his conviction. We review felony sentences
using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d
516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22. provides we may either increase, reduce,
modify, or vacate a sentence and remand for resentencing where we clearly and
convincingly find that either the record does not support the sentencing court's findings
under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence
is otherwise contrary to law.
{¶9} Accordingly, pursuant to Marcum this Court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that: (1) the
record does not support the trial court's findings under relevant statutes, or (2) the
sentence is otherwise contrary to law. Clear and convincing evidence is that evidence
“which will provide in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954),
Licking County, Case No. 17-CA-11 4
paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361
(1985). “Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161
Ohio St. at 477 120 N.E.2d 118.
{¶10} A trial court's imposition of a maximum prison term for a felony conviction is
not contrary to law as long as the sentence is within the statutory range for the offense,
and the court considers both the purposes and principles of felony sentencing set forth in
R.C. § 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State
v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16.
{¶11} R.C. § 2929.11(A) governs the purposes and principles of felony sentencing
and provides that a sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing, which are (1) to protect the
public from future crime by the offender and others, and (2) to punish the offender using
the minimum sanctions that the court determines will accomplish those purposes. Further,
the sentence imposed shall be “commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes by similar offenders.” R.C. § 2929.11(B).
{¶12} R.C. § 2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. § 2929.11. The statute provides a
non-exhaustive 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.
Licking County, Case No. 17-CA-11 5
{¶13} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,
the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856,
845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court
severed the judicial-fact-finding portions of R.C. § 2929.14, holding that “trial courts have
full discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See
also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306.
{¶14} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ 13.
See also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1.
{¶15} Thus, post-Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. Muskingum No. 2006–CA–0025, 2006–Ohio–4061.
Therefore, post-Foster, trial courts are still required to consider the general guidance
factors in their sentencing decisions.
{¶16} There is no requirement in R.C. § 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and recidivism
or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431, 655 N.E.2d 820(4th
Dist. 1995); State v. Gant, 7th Dist. Mahoning No. 04 MA 252, 2006–Ohio–1469, at ¶ 60
(nothing in R.C. 2929.12 or the decisions of the Ohio Supreme Court imposes any duty
Licking County, Case No. 17-CA-11 6
on the trial court to set forth its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166,
586 N.E.2d 94 (1992); State v. Woods, 5th Dist. Richland No. 05 CA 46, 2006–Ohio–
1342, ¶ 19 (“... R.C. 2929.12 does not require specific language or specific findings on
the record in order to show that the trial court considered the applicable seriousness and
recidivism factors”). (Citations omitted).
{¶17} Appellant asserts that he should not have been sentenced to the maximum
sentence because he “remained a law-abiding citizen without incident from the date of
his release from incarceration.” He further notes that he turned to illegal conduct to
support his family when his girlfriend’s health declined significantly and that he was
remorseful.
{¶18} We find, in the case sub judice, the trial court considered and applied the
factors set forth in R.C. 2929.11 and 2929.12 in sentencing appellant to the maximum
prison sentence. At the hearing, there was discussion on the record that appellant had
been convicted of illegal cultivation once before. As noted by the trial court on the record:
{¶19} “Well, Mr. Sothen, the Court’s considered the purposes and principles of
sentencing set out under Section 2929.11, as well as the seriousness and recidivism
factors set out under Section 2929.12, and I would say you probably hit them all as far as
that goes.
{¶20} Mr. Sothen, you were convicted of illegal cultivation actually, I believe, within
a very short distance from where this was located in 2012. Got released early from prison
on judicial release. By the monitoring of your electric and water usage at your residence,
they could show that as soon as you were released from supervision on judicial release
your electric and water bills went back up. Actually, if you’d served your term, which was
Licking County, Case No. 17-CA-11 7
only four years, you should have been in prison until October of 2016, so really just a few
months ago.
{¶21} Instead you were granted judicial release and actually terminated early from
supervision.”
{¶22} Sentencing Transcript at 20. The trial court found that appellant was not
genuinely remorseful and that appellant was a “professional drug dealer.” Sentencing
Transcript at 21. We find that the record clearly and convincingly supports the trial court’s
imposition of the maximum sentence on appellant.
{¶23} Appellant also maintains that the trial court should not have imposed the
maximum $15,000.00 fine on him because he was indigent. Appellant notes that he was
found indigent for purposes of the trial court appointing counsel to represent him.
Appellant had filed an affidavit of indigency on June 27, 2016.
{¶24} In State v. Webb, 5th Dist. Richland No. 14–CA–85, 2015-Ohio-3318, 2015
WL 4899511, this Court held as follows at paragraphs 23-24:
Further, Ohio law does not prohibit a court from imposing a fine on
an “indigent” defendant. That is, the filing of an affidavit of indigency does
not automatically entitle a defendant to a waiver of a mandatory fine. State
v. Knox, 8th Dist. Cuyahoga Nos. 98713 and 98805, 2013-Ohio-1662 [2013
WL 1791391], ¶ 36. *509 Under Ohio law, a trial court must impose a
mandatory fine unless (1) the offender files an affidavit of indigency prior to
sentencing, and (2) “the trial court finds that the offender is an indigent
person and is unable to pay the mandatory fines.” State v. Gipson, 80 Ohio
St.3d 626, 634, 687 N.E.2d 750 (1998). In making its indigency
Licking County, Case No. 17-CA-11 8
determination, the court must consider both the offender's present and
future ability to pay the fine. R.C. § 2929.19(B)(5).
Additionally, the trial court need not make an “affirmative finding that
an offender is able to pay a mandatory fine.” Id. at 635 [687 N.E.2d 750].
Instead, “the burden is upon the offender to affirmatively demonstrate that
he or she is indigent and is unable to pay the mandatory fine.” Id. We review
the trial court's decision to impose a fine on an indigent defendant for an
abuse of discretion. State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-
Ohio-3002 [2013 WL 3583030], ¶ 5. An abuse of discretion implies that the
trial court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶25} R.C. 2929.19(B)(5) provides that “[b]efore imposing a financial sanction
under section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised
Code, the court shall consider the offender's present and future ability to pay the amount
of the sanction or fine.”
{¶26} At the sentencing hearing, the trial court declined to fine appellant indigent
for the purpose of the fine based on the value of property that appellant appeared to own.
The trial court stated that appellant had told probation officers that he owned apartments
and that investigating detectives had noted that appellant owned a number of vehicles.
We find that the trial court considered appellant’s ability to pay prior to imposing the fine
and that the trial court did not abuse its discretion in fining appellant $15,000.00.
{¶27} Appellant’s sole assignment of error is, therefore, overruled.
Licking County, Case No. 17-CA-11 9
{¶28} Accordingly, the judgment of the Licking County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Earle Wise, J. concur.