State v. Sothen , 2017 Ohio 8033 ( 2017 )


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  • [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.
    

Document Info

Docket Number: 17-CA-11

Citation Numbers: 2017 Ohio 8033

Judges: Baldwin

Filed Date: 9/29/2017

Precedential Status: Precedential

Modified Date: 10/2/2017