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State v. Crawford

Court of Appeals of Ohio, Twelfth District

July 29, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
LEE E. CRAWFORD, Defendant-Appellant.

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012 CR 686

D. Vincent Faris, Clermont County Prosecuting Attorney, for plaintiff-appellee

The Farrish Law Firm, Michaela M. Stagnaro, for defendant-appellant

OPINION

S. POWELL, P.J.

{¶ 1} Defendant-appellant, Lee Edward Crawford, appeals from the decision of the Clermont County Court of Common Pleas sentencing him to an aggregate two-year prison term after he pled guilty to four counts of theft. For the reasons outlined below, we affirm.

{¶ 2} On August 29, 2012, Crawford, a native of Philadelphia, Pennsylvania, was indicted on four counts of theft in violation of R.C. 2913.02(A)(1), all fifth-degree felonies. The charges stemmed from Crawford's involvement in a coordinated effort between himself and his co-defendants, Monica Johnson, Rebecca Anne Phillippi, Tina L. Morgan and Kenard Johnson, to remove numerous credit cards from unsuspecting victims throughout Clermont County and the greater Cincinnati area. The group then used the stolen credit cards to make various high end purchases at local retail stores. Crawford was the driver of the rented vehicle used to transport his cohorts from Philadelphia to Ohio.

{¶ 3} On November 5, 2012, as part of his negotiated plea deal, Crawford entered a guilty plea to the four counts of theft. Thereafter, on December 13, 2012, Crawford was sentenced to the maximum 12-month prison sentence on each of the four counts, with two of the counts to run consecutively for an aggregate two-year prison term. Crawford now appeals from the trial court's sentencing decision, raising a single assignment of error for review.

{¶ 4} THE TRIAL COURT ERRED AS A MATTER OF LAW IN SENTENCING APPELLANT.

{¶ 5} In his single assignment of error, Crawford argues the trial court erred in sentencing him to an aggregate two-year prison sentence comprising of two consecutive 12-month prison terms. We disagree.

{¶ 6} 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. In Kalish, the Ohio Supreme Court "considered the relevant standard of review in the post-Foster era in which the findings necessary to impose consecutive sentences under former R.C. 2929.14(E)(4) had been declared unconstitutional." State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 8. However, the "post-Foster era ended with the enactment of [2011 Am.Sub.H.B. No. 86, effective September 30, 2011, ] and the revival of statutory findings necessary for imposing consecutive sentences under R.C. 2929.14(C)(4)." Id. Therefore, from this day forward, rather than continue to apply the two-step approach as provided by Kalish, we find "the standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony sentences." State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7; see also State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-Ohio-5899, ¶ 52; State v. Martin, 11th Dist. Portage No. 2012-P-0114, 2013-Ohio-2833, ¶ 31 (OToole, J., dissenting); see, e.g., State v. May, 8th Dist. Cuyahoga No. 99064, 2013-Ohio-2697, ¶ 20 (applying the standard outlined in R.C. 2953.08(G)(2) in reviewing the imposition of a maximum sentence).

{¶ 7} 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 Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law."

{¶ 8} 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." 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.

{¶ 9} That said, "[although 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. In turn, 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 statutory range. State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10, citing Kalish , 2008-Ohio-4912 at ¶ 18.

{¶ 10} With these principles in mind, we first note that the trial court properly complied with the newly enacted sentencing laws of H.B. 86, which established a preference for, and in certain conditions, a presumption of, community control sanctions for fifth-degree felonies. See R.C. 2929.13(B)(1)(a); State v. Snyder, 3d Dist. Seneca No. 13-11-37, 2012-Ohio-3069, ¶ 20. However, this presumption does not apply here as Crawford had previously been convicted of a felony offense and had served a prison term. See State v. Glowka, 12th Dist. Butler No. CA2012-10-203, 2013-Ohio-3080, ¶ 18; see also R.C. ...


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