State v. Frazier , 2011 Ohio 5445 ( 2011 )

[Cite as State v. Frazier, 2011-Ohio-5445.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-11-06
v.
DAVID FRAZIER, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-11-07
v.
DAVID FRAZIER, OPINION
DEFENDANT-APPELLANT.
Appeals from Shelby County Common Pleas Court
Trial Court Nos. 08CR00306 and 10CR00125
Judgments Affirmed
Date of Decision: October 24, 2011
Case Nos. 17-10-06 and 17-10-07
APPEARANCES:
James R. Gudgel for Appellant
Jeffrey J. Beigel for Appellee
SHAW, J.
{¶1} Defendant-appellant, David Frazier (“Frazier”), appeals the judgments
of the Common Pleas Court of Shelby County, Ohio, sentencing him to an
aggregate sentence of eight years and nine months imprisonment following guilty
convictions on four felony charges.
{¶2} On November 13, 2008, Frazier was indicted for one count of burglary
in violation of R.C. 2911.12(A)(2), a felony of the second degree (Trial Case No.
08 CR 306). Despite a number of attempts to serve Frazier with the indictment, he
was not served until March of 2010. On June 8, 2010, Frazier was indicted in a
separate case for eight counts of burglary, each in violation of R.C. 2911.12(A)(4)
and each a felony of the fourth degree (Trial Case No. 10 CR 125). Frazier
entered pleas of not guilty to all of the charges contained in both indictments.
{¶3} The 2008 case proceeded to a jury trial on December 21-22, 2010. At
the conclusion of the trial, Frazier was found guilty of the sole count of burglary, a
felony of the second degree. Thereafter, on January 14, 2011, Frazier entered into
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Case Nos. 17-10-06 and 17-10-07
a plea agreement with the State on the 2010 case, whereby Counts I, II, and VII
were each reduced to charges of receiving stolen property in violation of R.C.
2913.51, felonies of the fifth degree, and the remaining five counts were dismissed
in exchange for Frazier tendering pleas of guilty to the three reduced counts of
receiving stolen property.
{¶4} On February 11, 2011, Frazier was sentenced in both cases. In the
2008 case, Frazier was sentenced to six years in prison. In the 2010 case, Frazier
was sentenced to eleven months in prison on each of the three counts. All of
Frazier’s sentences were ordered to be served consecutively to one another for an
aggregate sentence of eight years and nine months. These appeals followed, and
Frazier now asserts one assignment of error for our review.
THE GRANTING OF CONSENTIVE [sic] SENTENCES IS
EXCESSIVE AND IS NOT NECESSARY TO PROTECT THE
PUBLIC.
{¶5} In his sole assignment of error, Frazier contends that the trial court
abused its discretion in not considering and making the specific findings required
by R.C. 2929.14(E)(4) before imposing consecutive sentences.
{¶6} Our review of this assignment of error begins by noting that an
appellate court must conduct a meaningful review of the trial court’s sentencing
decision. State v. Daughenbaugh, 3rd Dist. No. 16–07–07, 2007-Ohio-5774, ¶ 8,
citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-1181. A meaningful
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Case Nos. 17-10-06 and 17-10-07
review means “that an appellate court hearing an appeal of a felony sentence may
modify or vacate the sentence and remand the matter to the trial court for re-
sentencing if the court clearly and convincingly finds that the record does not
support the sentence or that the sentence is otherwise contrary to law.”1
Daughenbaugh, 2007-Ohio-5774, at ¶ 8, citing Carter, 2004-Ohio-1181, at ¶ 44;
R.C. 2953.08(G). Clear and convincing evidence is “[t]he measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the allegations sought to be established. It is intermediate, being more than a
mere preponderance, but not to the extent of such certainty as required beyond a
reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”
In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-104, 495 N.E.2d 23.
{¶7} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
the Supreme Court of Ohio stated that “[t]rial courts [now] 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 paragraph seven of the syllabus. In fact, the
Court in Foster, specifically found that the requirements imposed by R.C.
1
We note that the Supreme Court of Ohio's plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, establishes a two-part test utilizing an abuse of discretion standard for
appellate review of felony sentencing decisions under R .C. 2953.08(G). While we cite to this Court’s
precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note
that the outcome of our decision in this case would be identical under the Kalish plurality's two-part test.
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Case Nos. 17-10-06 and 17-10-07
2929.14(E)(4) were unconstitutional, severed that division from the remainder of
R.C. 2929.14, and held that “judicial fact-finding is not required before imposition
of consecutive prison terms.” Id. at ¶ 99.
{¶8} Although the trial court is given full discretion in sentencing pursuant
to Foster, the trial court must still consider the overriding purposes of felony
sentencing, which are to protect the public from future crimes by the offender and
to punish the offender. R.C. 2929.11(A); State v. Scott, 3rd Dist. No. 6-07-17,
2008-Ohio-86, ¶ 49, citing State v. Foust, 3rd Dist. No. 3-07-11, 2007-Ohio-5767,
¶ 27. Additionally, “[a] sentence imposed for a felony shall be reasonably
calculated to achieve the two overriding purposes of felony sentencing * * *
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.” R.C. 2929.11(B).
{¶9} Here, Frazier’s sentence of six years for his second degree felony
offense of burglary was within the statutorily permissible range of two to eight
years. See R.C. 2929.14(A)(2). Additionally, each of his sentences of eleven
months for his fifth degree felonies was within the statutorily permissible range of
six to twelve months. See R.C. 2929.14(A)(5). Thus, the imposition of time for
each count was well within the statutory ranges, and as such, the sentences
imposed were not contrary to law.
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Case Nos. 17-10-06 and 17-10-07
{¶10} Further, the trial court stated that it had considered the record, oral
statements, any victim impact statement and presentence report prepared, as well
as the principles and purposes of sentencing under Ohio Revised Code section
2929.11, and had balanced the seriousness and recidivism factors of Ohio Revised
Code section 2929.12.
{¶11} The trial court was not required to make the findings Frazier
contends it must have made before imposing consecutive sentences. Thus, the
trial court did not err in this regard. Moreover, from the language contained in the
judgment entries of sentencing, the trial court complied with the statutory
sentencing requirements. In fact, Frazier has provided this Court with no evidence
to the contrary, as the record is devoid of any transcript of the sentencing hearing,
contrary to the mandates of App.R. 9 and App.R. 16(A)(6-7).
{¶12} For all these reasons, the assignment of error is overruled, and the
judgments of the Common Pleas Court of Shelby County, Ohio, are affirmed.
Judgments Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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