Opinion
No. 2008-CA-35.
DATE OF JUDGMENT ENTRY: May 27, 2009.
Criminal appeal from the Ashland County Court of Common Pleasl, Case No. 08-CRI-081.
Affirmed.
Ramona Francesconi Rogers, Paul T. Lange, for Plaintiff-Appellee.
Douglas A. Milhoan, for Defendant-Appellant.
Before: Hon. Sheila G. Farmer, P.J., Hon. W. Scott Gwin, J., Hon. William B. Hoffman, J.
OPINION
{¶ 1} Appellant Scott B. Brentlinger appeals the sentence rendered by the Ashland County Court of Common Pleas on the basis that it imposes an unnecessary burden on the state's resources. The following facts give rise to this appeal.
{¶ 2} On February 1, 2008, the Ashland County Grand Jury indicted appellant on one count of Murder, one count of Grand Theft of a Motor Vehicle, a felony of the fourth degree, one count of Menacing, a misdemeanor of the fourth degree, four counts of Identity Fraud, all felonies of the fifth degree, and seven counts of Forgery, all felonies of the fifth degree.
{¶ 3} During the course of the proceedings, the murder weapon and other key pieces of evidence were misplaced by the Cuyahoga County Coroner's Office. The case was ultimately resolved through a negotiated plea by which appellant pled guilty to a Bill of Information charging him with one count of Voluntary Manslaughter, a felony of the first degree. Appellant was then sentenced to 10 years in prison.
{¶ 4} Appellant has timely appealed raising the following assignment of error:
{¶ 5} "I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES."
I.
{¶ 6} Appellant maintains in his sole assignment of error the imposition of a ten-year prison sentence results in an unnecessary burden on state resources. We disagree.
{¶ 7} Recently in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E. 2d 470 as it relates to the remaining sentencing statutes and appellate review of felony sentencing. See, State v. Snyder, Licking App. No. 2008-CA-25, 2008-Ohio-6709.
{¶ 8} In Kalish, the Court discussed the affect of the Foster decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme 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; State v. Firouzmandi, Licking App. No. 2006-CA-41, 2006-Ohio-5823.
{¶ 9} "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 in tact 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; State v. Firouzmandi, supra at ¶ 29.
{¶ 10} "Thus, despite the fact that R.C. 2953.08(G)(2) refers to the excised judicial fact-finding portions of the sentencing scheme, an appellate court remains precluded from using an abuse-of-discretion standard of review when initially reviewing a defendant's sentence. Instead, the appellate court must ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence. As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in R.C. 2953.08(G)." Kalish at ¶ 14.
{¶ 11} Therefore, Kalish holds that, in reviewing felony sentences and applying Foster to the remaining sentencing statutes, the appellate courts must use a two-step approach. "First, they 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 in imposing the term of imprisonment shall be reviewed under an abuse of discretion standard." Kalish at ¶ 4, State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E. 2d 470.
{¶ 12} The Supreme Court held, in Kalish, that the trial court's sentencing decision was not contrary to law. "The trial court expressly stated that it considered the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12. Moreover, it properly applied post release control, and the sentence was within the permissible range. Accordingly, the sentence is not clearly and convincingly contrary to law." Kalish at ¶ 18. The Court further held that the trial court "gave careful and substantial deliberation to the relevant statutory considerations" and that there was "nothing in the record to suggest that the court's decision was unreasonable, arbitrary, or unconscionable." Kalish at ¶ 20.
{¶ 13} In the case at bar, appellant was convicted of voluntary manslaughter, a felony of the first degree. For a violation of a felony of the first degree, the court must impose a definite prison term of three, four, five, six, seven, eight, nine or ten years. R.C. 2929.14(A) (1). Appellant was sentenced to ten years.
{¶ 14} Upon review, we find that the trial court's sentencing on the charge of voluntary manslaughter complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised appellant regarding post release control. Therefore, the sentence is not clearly and convincingly contrary to law.
{¶ 15} Having determined that the sentence is not contrary to law we must now review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v. Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave careful and substantial deliberation to the relevant statutory considerations.
{¶ 16} The court considered appellant's lengthy criminal history, the vulnerability of the victim and the harm caused by appellant's actions. In addition, the trial court had the benefit of a pre-sentence investigation report.
{¶ 17} There is no evidence in the record that the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of appellant's case to suggest that his sentence was based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment. State v. Firouzmandi, supra at ¶ 43.
{¶ 18} It appears to this Court that the trial court's statements at the sentencing hearing were 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. R.C. 2929.11.
{¶ 19} Based on the transcript of the sentencing hearing and the subsequent judgment entry, this Court cannot find that the trial court acted unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant's rights to due process under the Ohio and United States Constitutions in its sentencing appellant to the term of ten (10) years incarceration.
{¶ 20} In his assignment of error, appellant contends that his sentence violates the general assembly's intent to minimize the unnecessary burden on state and local government resources. Specifically, appellant argues that because of the high cost of housing prison inmates, the cost of housing him in prison beyond the minimum sentence creates an unnecessary burden on state and local resources.
{¶ 21} In State v. Ober (Oct. 10, 1997), Greene App. No. 97CA0019, the Second District considered this same issue. In rejecting the argument, the court stated "Ober is correct that the `sentence shall not impose an unnecessary burden on state or local government resources.' R.C. 2929.19(A). According to criminal law experts, this resource principle `impacts on the application of the presumptions also contained in this section and upon the exercise of discretion.' Griffin Katz, Ohio Felony Sentencing Law (1996-97), 62. Courts may consider whether a criminal sanction would unduly burden resources when deciding whether a second-degree felony offender has overcome the presumption in favor of imprisonment because the resource principle is consistent with the overriding purposes and principles of felony sentencing set forth in R.C.2929.11. Id."
{¶ 22} The Ober court concluded, "[a]lthough resource burdens may be a relevant sentencing criterion, R.C. 2929.13(D) does not require trial courts to elevate resource conservation above the seriousness and recidivism factors. Imposing a community control sanction on Ober may have saved state and local government funds; however, this factor alone would not usually overcome the presumption in favor of imprisonment." Id.
{¶ 23} Several other appellate courts, including our own, considering these issues have reached the same conclusion. See, e.g., State v. Hyland, Butler App. No. CA2005-05-103, 2006-Ohio-339 at ¶ 32; State v. Brooks (Aug. 18, 1998), Franklin App. No. 97APA-11-1543; State v. Stewart (Mar. 4, 1999), Cuyahoga App. No. 74691; State v. Fox (Mar. 6, 2001), Wyandot App. No. 16-2000-17; State v. Miller, Ashland App. No. 04-COA-003, 2004-Ohio-4636. We agree with the reasoning of the Ober court and other courts considering this issue and find no merit to appellant's argument.
{¶ 24} Appellant's sole assignment of error is overruled.
{¶ 25} The judgment of the Ashland County Court of Common Pleas is affirmed.
Gwin, J., Farmer, P.J., and Hoffman, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Ashland County Court of Common Pleas is affirmed. Costs to appellant.