dissenting.
{¶ 43} I respectfully dissent. The standard of appellate review of felony sentences remains unchanged by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. In reviewing any felony sentence, an appellate court must determine whether the record clearly and convincingly demonstrates that the sentence is contrary to law. R.C. 2953.08(G)(2).
{¶ 44} Before considering the plurality’s new interpretation of Foster’s effect on sentencing appeals, it is important to look at the governing statute. To justify its holding, the plurality interprets a statute to mean the opposite of what it plainly says.
The Statute: R.C. 2953.08(G)(2)
{¶ 45} The appropriate standard of appellate review for felony sentences is found in R.C. 2953.08(G)(2):
{¶ 46} “The court hearing an appeal * * * shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶ 47} “The 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. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶ 48} “(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (D)(2)(e) or (E)(4) of section 2929.14, or division (H) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶ 49} “(b) That the sentence is otherwise contrary to law.” (Emphasis added.)
Interpretation of State v. Foster by Appellate Courts
{¶ 50} The plurality opinion begins with a summarizing statement from Foster 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.” Id. at ¶ 100. This language has been interpreted by some appellate courts as changing the standard of review to that of abuse of discretion. State v. Babb, 9th Dist. No. 23631, 2007-0hio-5102, 2007 WL 2812949, ¶ 8; State v. Schweitzer, 3d Dist. No. 2-06-25, 2006-Ohio-6087, 2006 WL 3350776, ¶ 19. Others have inter*33preted Foster as severing R.C. 2953.08(G)(2) in its entirety, thereby creating a “void.” State v. Firouzmandi, 5th Dist. No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175, ¶ 37; State v. Dudukovich, 9th Dist. No. 05CA008729, 2006-Ohio-1309, 2006 WL 709102, ¶ 20. Still others have used both the clear-and-convincing and abuse-of-discretion standards of appellate review. State v. Payne, 11th Dist. No. 2006-L-272, 2007-0hio-6740, 2007 WL 4395051, ¶ 19-20; State v. Barringer, 11th Dist. No. 2007-P-0002, 2008-Ohio-729, 2008 WL 482831, ¶ 25. The confusion has created inconsistency among the appellate districts.
{¶ 51} We accepted this case to resolve questions over the standard of appellate review and how it should be applied after State v. Foster. The concurring opinion confusingly suggests separate standards of review depending on which statute is involved — R.C. 2929.11 (clear and convincing) or R.C. 2929.12 (abuse of discretion). To the contrary, R.C. 2953.08 is comprehensive in setting forth guidance for appellate review of felonies. Division (A) begins:
{¶ 52} “In addition to any other right to appeal * * *, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant on one of the following grounds:
{¶ 53} “ * * *
{¶ 54} “(4) The sentence is contrary to law.”
{¶ 55} The same right to appeal a sentence contrary to law is granted to the state. R.C. 2953.08(B)(2). Both R.C. 2953.08(G)(1) and (2) include the language that refers to “the court hearing an appeal under division (A), (B), or (C) of this section.” Thus, R.C. 2953.08(G)’s scope covers all the felony sentencing statutes.
The Effect of Foster on Appellate Review
{¶ 56} In Foster, we excised as unconstitutional R.C. 2929.14(B), (C), and (E)(4), which were portions of Ohio’s felony sentencing laws that required the trial court to make findings when imposing nonminimum, maximum, and consecutive sentences respectively. 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 99. We did this because those sections required judicial fact-finding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant. Id. at ¶ 83. We also stated, “The appellate statute R.C. 2953.08(G), insofar as it refers to the severed sections, no longer applies.” (Emphasis added.) Id. at ¶ 99. Thus, although Foster nullified a portion of R.C. 2953.08(G)(2) that related to the offending Blakely-Apprendi findings, Foster did not sever the entire statute governing appellate review of sentences.
{¶ 57} We explained Foster*s consequences further in a companion case: “Now, after severance, judicial fact-finding is not required before a prison term can be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or *34admission of the defendant. Nor is judicial fact-finding required before imposition of consecutive prison terms. R.C. 2953.08(G) no longer applies to require consecutive findings on the appellate record. Judicial findings must be provided only for downward departures, such as when a court refuses to impose the presumptive prison term under R.C. 2929.13(D) or when a court grants a judicial release.” (Citation omitted.) State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 27. Thus, Fosters severance of certain statutes has neither changed the standard of review for felony sentences to abuse of discretion nor created a void in the standard of appellate review.
{¶ 58} The mere fact that the court has “full discretion” to impose a prison sentence within the statutory range, or that it no longer is required to make certain judicial findings when sentencing, does not mean it is forbidden to give reasons or make findings. We stated explicitly in Mathis: “[I]n exercising its discretion, the court must carefully consider the statutes that apply to every felony case. Those include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender. In addition, the sentencing court must be guided by statutes that are specific to the case itself.” Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, at ¶ 38. Even though, except for downward departures, mandatory fact-finding is gone, a court may still, and usually will, create a record explaining why a particular sentence was selected.
{¶ 59} Because the sentencing duties of a trial judge involve much more than merely selecting a prison term within a statutory range, a sentence may be challenged as “contrary to law” even if it is within a statutory range. While Foster did liberate judges from the requirement to make certain findings, it did not free judges from all other statutory requirements. R.C. 2929.11 and 2929.12 are written in mandatory terms. R.C. 2929.11(B) states: “A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, 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 committed by similar offenders.” (Emphasis added.) R.C. 2929.12(A) states: “In exercising [its] discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the seriousness of the conduct and the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender’s recidivism and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing.” (Emphasis added.)
*35{¶ 60} Furthermore, there are notifications for the court to give in all cases or special procedures to be followed that may depend upon a particular crime. See, e.g., R.C. 2929.19(B)(4)(a) (court’s obligations regarding the classification of sex offenders); R.C. 2951.03(B)(5) (court’s duty regarding alleged errors in the presentence investigation report); State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 9; and State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 15 (duty to notify an offender of postrelease control; otherwise sentence is “contrary to law”).
{¶ 61} In summary, Foster's severance of certain statutes has neither changed the standard of review for felony sentence to abuse of discretion nor created a void in the standard of appellate review.
The Plurality’s “Two Step” Approach
{¶ 62} There is no need to announce an approach that employs two standards of review. By limiting the existing statutory standard to an initial review, the plurality’s approach rewrites the statute. It holds that “[appellate courts] must 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. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard.” (Emphasis added.) Plurality opinion at ¶ 4. This language flatly contradicts R.C. 2953.08(G)(2): “The appellate court’s standard for review is not whether the sentencing court abused its discretion.” (Emphasis added.)
{¶ 63} R.C. 2953.08(G)(2) is clear that “[t]he appellate court may take any action authorized by this division if it clearly and convincingly finds * * * (b) [t]hat the sentence is otherwise contrary to law.” Adhering to this standard is not inconsistent with Foster’s holding that trial courts have “full discretion” to impose “a prison sentence "within the statutory range.” Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 100.
{¶ 64} The courts in at least half of the appellate districts seem to have had no difficulty in applying the unchanged standard of review since Foster and have examined the record to determine whether the sentence is clearly and convincingly contrary to law. See State v. Sheppard, 1st Dist. Nos. C-060042 and C-060066, 2007-Ohio-24, 2007 WL 29440, ¶ 16 (consecutive terms were not contrary to law); State v. Vickroy, 4th Dist. No. 06CA4, 2006-Ohio-5461, 2006 WL 2988117, ¶ 15-21 (consideration of statutory guidelines is not contrary to law); State v. McLaughlin, 7th Dist. No. 07 MA 39, 2008-Ohio-3329, 2008 WL 2609663, ¶ 15-23 (court’s reasons for sentence were not contrary to law); State v. Morris, 8th Dist. No. 89425, 2008-Ohio-3026, 2008 WL 2476763, ¶ 12 (prison term in lieu of community control was not contrary to law); State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, 2007 WL 1196579, ¶ 30-40 (sentences upheld as not *36contrary to law); State v. Rice, 12th Dist. No. CA2006-01-002, 2006-Ohio-5511, 2006 WL 3003954, ¶ 3-6 (sentence was supported by record and not contrary to law).
Charles E. Coulson, Lake County Prosecuting Attorney, and Alana A. Rezaee, Assistant Prosecuting Attorney, for appellee.{¶ 65} As the Tenth District explained in overruling two cases,6 a court of appeals, in deciding whether a sentence was clearly and convincingly contrary to law under R.C. 2953.08(G)(2)(b), must “ ‘look to the record to determine whether the sentencing court considered and properly applied the [non-excised] statutory guidelines and whether the sentence is otherwise contrary to law.’” Burton, 2007-Ohio-1941, 2007 WL 1196579, at ¶ 19, quoting Vickroy, 2006-Ohio-5461, 2006 WL 2988117, at ¶ 16.
{¶ 66} Appellate review of felony sentencing has changed to the extent that there may be fewer findings for a court to review on appeal — a mere lack of findings is no longer contrary to law as it was before Foster, and the trial court may impose prison within a statutory range. But the remainder of Ohio’s felony structure stays in place unless or until the General Assembly decides to modify the statutes. The court of appeals still “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” if a sentence is clearly and convincingly “contrary to law.” R.C. 2953.08(G)(2). This court should not impose the more deferential abuse-of-discretion standard when the statute has expressly rejected that standard.
Conclusion
{¶ 67} The Eleventh District Court of Appeals erroneously reviewed this case under an abuse-of-discretion standard and held that there is nothing in the record to suggest that the court’s decision was unreasonable, arbitrary, or unconscionable. State v. Kalish, 11th Dist. No. 2006-L-093, 2007-Ohio-3850, 2007 WL 2164552, ¶ 14-26.
{¶ 68} Because State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, does not modify the standard of appellate review for felony sentences, I dissent. I would reverse the judgment of the court of appeals and remand this case for the court of appeals’ application of the proper standard of review.
Pfeifer and Lundberg Stratton, JJ., concur in the foregoing opinion. Rosplock & Perez and Richard J. Perez; and Jesse M. Schmidt, for appellee. Timothy Young, Ohio Public Defender, and Kelly K. Curtis, Assistant State Public Defender, urging reversal for amicus curiae Ohio Public Defender. Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.. State v. Knopf, Franklin App. No. 05AP-1201, 2006-Ohio-3806, 2006 WL 2058064; State v. Fout, Franklin App. No. 06AP-664, 2007-Ohio-619, 2007 WL 453995.