State v. Lee , 2013 Ohio 3404 ( 2013 )

[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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