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State v. Lee

Court of Appeals of Ohio, Twelfth District

August 5, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
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, for plaintiff-appellee

Fred S. Miller, Baden & Jones BIdg., for defendant-appellant

OPINION

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 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 MANDATORYTIME 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 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. Kalisti, 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 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 ΒΆ 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 ...


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