State v. Phillips , 2011 Ohio 6431 ( 2011 )

[Cite as State v. Phillips, 2011-Ohio-6431.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96576
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVID PHILLIPS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-538733 and CR-540544
BEFORE: Celebrezze, P.J., Jones, J., and Cooney, J.
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEY FOR APPELLANT
Thomas A. Rein
940 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Jesse W. Canonico
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶ 1} Appellant, David Phillips, appeals his sentence, arguing that the trial court
erred by imposing a term of incarceration that was contrary to law. After careful review
of the record and relevant case law, we affirm appellant’s sentence.
{¶ 2} On June 30, 2010, appellant was indicted in Case No. CR-538733 and
charged with two counts of drug trafficking, with a forfeiture specification, in violation of
R.C. 2925.03(A)(2) (Counts 1 and 3); four counts of drug possession, in violation of R.C.
2925.11 (Counts 2, 4, 5, and 6); and possession of criminal tools, in violation of R.C.
2923.24 (Count 7).
{¶ 3} On August 9, 2010, appellant was indicted in Case No. CR-540544 and
charged with four counts of illegal use of a minor in nudity oriented material or
performance, with a forfeiture specification, in violation of R.C. 2907.322(A)(1) (Counts
1, 2, 3, and 4); two counts of child endangering, in violation of R.C. 2919.22(B)(5)
(Counts 5 and 6); tampering with evidence, in violation of R.C. 2921.12(A)(1) (Count 7);
and possessing criminal tools, in violation of R.C. 2923.24 (Count 8).
{¶ 4} On February 3, 2011, appellant pled guilty on all charges as indicted in
CR-538733 and CR-540544.
{¶ 5} Appellant’s sentencing hearing was held on March 8, 2011. In
CR-538733, the trial court found that Counts 1 and 2 were allied offenses of similar
import. The trial court also found that Counts 3 and 4 were allied offenses. For the
purposes of sentencing, the trial court found that Counts 5, 6, and 7 were separate
offenses. At the sentencing hearing, the state chose to proceed on Counts 1 and 3.
{¶ 6} In CR-538733, on Count 1, the trial court sentenced appellant to seven
years. On Count 3, the court sentenced appellant to five years, to run consecutively to
Count 1. On Count 5, a misdemeanor, the trial court sentenced appellant to time served.
On Counts 6 and 7, the trial court sentenced appellant to one year each, to run
concurrently to Counts 1 and 3.
{¶ 7} In CR-540544, the trial court found that Counts 2, 3, and 4 were allied
offenses of similar import and therefore merged the counts for the purpose of sentencing.
{¶ 8} The trial court sentenced appellant to six years on Count 1; merged Counts
2, 3, and 4, and sentenced appellant to six years on the amended Count 2, to run
consecutively to Count 1. On Counts 5 and 6, the trial court sentenced appellant to four
years, to run concurrently to Counts 1 and 2. On Count 7, the trial court sentenced
appellant to one year, to run concurrently to Counts 1 and 2. On Count 8, the trial court
sentenced appellant to six months, to run concurrently to Counts 1 and 2.
{¶ 9} The court ordered that the sentence issued in CR-538733 run concurrently
with the sentence issue in CR-540544, for an aggregate sentence of 12 years. The court
also imposed a five-year mandatory period of postrelease control.
{¶ 10} Appellant appeals from this order of sentencing, raising one assignment of
error for review.
Law and Analysis
{¶ 11} In his sole assigned error, appellant argues that his 12-year sentence is
contrary to law. We disagree.
{¶ 12} We review felony sentences using the framework announced in State v.
Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality opinion,
the Kalish court declared that in applying State v. Foster, 109 Ohio St. 3d 1,
2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a
two-step approach.” Kalish at ¶4.
{¶ 13} Appellate courts must first “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.” Id. at ¶26. See, also, R.C.
2953.08(G). If this first prong is satisfied, then we review the trial court’s decision under
an abuse of discretion standard. Id. at ¶4, 19.
{¶ 14} In the first step of our analysis, we review whether appellant’s sentence is
contrary to law, as required by R.C. 2953.08(G). As the Kalish court noted, post-Foster
“trial courts have full discretion to impose a prison sentence within the statutory range
and are no longer required to make findings and give reasons for imposing maximum,
consecutive, or more than the minimum sentence.” Id. at ¶11, quoting Foster at
paragraph seven of the syllabus; State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846
N.E.2d 1, paragraph three of the syllabus.
{¶ 15} The Kalish court held that, although Foster eliminated mandatory judicial
fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13. Therefore, the trial
court must still consider those statutes when imposing a sentence. Id., citing Mathis at
¶38.
{¶ 16} R.C. 2929.11(A) provides: “[A] court that sentences an offender for a
felony shall be guided by the overriding purposes of felony sentencing [:] * * * to protect
the public from future crime by the offender and others and to punish the offender. To
achieve those purposes, the sentencing court shall consider the need for incapacitating the
offender, deterring the offender and others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense, the public, or both.”
{¶ 17} R.C. 2929.12 provides a nonexhaustive 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.
{¶ 18} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Instead, they
“serve as an overarching guide for trial judges to consider in fashioning an appropriate
sentence.” Kalish at ¶17. Thus, “[i]n considering these statutes in light of Foster, the
trial court has full discretion to determine whether the sentence satisfies the overriding
purposes of Ohio’s sentencing structure.” Id.
{¶ 19} In the instant case, appellant concedes that his sentence falls within the
statutory range for each charge. Further, the record reflects that the trial court properly
considered the applicable sentencing statutes when imposing appellant’s sentence.1 The
trial court stated in its judgment entry that appellant’s prison term is consistent with the
principles and purposes of sentencing set forth in R.C. 2929.11 and that it had considered
all required factors of the law. Additionally, the transcript of the sentencing hearing
clearly shows that the trial court weighed the factors outlined in R.C. 2929.12. The
record reflects that the trial court considered the seriousness of appellant’s convictions,
his extensive criminal history, his pattern of drug and alcohol abuse, his remorse for the
offenses, the likelihood of appellant committing future crimes, and the magnitude of the
1 Appellant does not argue that the court failed to consider R.C. 2929.11 and
2929.12 when imposing his sentence; nor does he argue how his 12-year sentence is
disproportionate to the volume of criminal activity he committed. Instead, he
merely argues that his sentence was unreasonable and cites the Second District
opinion, State v. Parker, 193 Ohio App. 3d 506, 2011-Ohio-1418, 952 N.E.2d 1159, a
case that is factually distinguishable from the instant matter. Appellant’s brief
fails entirely to demonstrate how his sentence violated Ohio’s sentencing statutes.
victim’s psychological harm. Therefore, we have no basis for concluding that
appellant’s sentence is contrary to law.
{¶ 20} We next consider whether the trial court abused its discretion. Kalish at
¶4, 19. An “abuse of discretion” implies that the court’s attitude is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219,
450 N.E.2d 1140.
{¶ 21} We find nothing in the record to suggest that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. A review of the record indicates that the trial
court expressly stated that it had considered all factors of the law and found that prison
was consistent with the purposes and principles of R.C. 2929.11.
{¶ 22} Accordingly, we overrule appellant’s sole assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, J., and
COLLEEN CONWAY COONEY, J., CONCUR