CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-09-1533.
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., for plaintiff-appellee.
John T. Willard, for defendant-appellant.
(¶ 1} Defendant-appellant, Todd J. Martin, appeals his conviction in the Butler County Common Pleas Court for theft. For the reasons that follow, we affirm Martin's conviction.
(¶ 2} In 2012, Martin was indicted on one count of theft in violation of R.C. 2913.02(A)(1)-(B)(2), one count of theft in violation of R.C. 2913.02(A)(3)-(B)(2) and one count of forgery in violation of R. C. 2913.31(A)(3). All of the charges were felonies of the fifth degree. Martin agreed to plead guilty to one count of theft in violation of R.C. 2913.02(A)(3)-(B)(2) in exchange for the state's agreement to merge the two remaining counts. On March 21, 2013, the trial court sentenced Martin to 12 months in prison, after determining that he was not amenable to community control.
(¶ 3} Martin now appeals, assigning the following as error:
(¶ 4} Assignment of Error No. 1:
(¶ 5} IT WAS ERROR AND AN ABUSE OF DISCRETION TO SENTENCE THE APPELLANT TO 12 MONTHS IN PRISON AND DENY HIM COMMUNITY CONTROL.
(¶ 6} Assignment of Error No. 2:
(¶ 7} SENDING THE APPELLANT TO PRISON IN THE INSTANT CASE IN LIGHT OF HIS SERIOUS MEDICAL CONDITIONS CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT AND IS CONTRARY TO ARTICLE VIII OF THE UNITED STATES CONSTITUTION. AND CONTRARY TO ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION. [sic]
(¶ 8} In his first assignment of error, Martin argues the trial court erred and abused its discretion in sentencing him to 12 months in prison rather than to community control. We disagree with this argument.
(¶ 9} In the past, this court has reviewed felony sentences under the two-pronged approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. Under the first prong of Kalish, an appellate court was required to examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence was clearly and convincingly contrary to law. Id. at ¶ 14-15. If the first prong was satisfied, the appellate court was then required to review the sentencing court's decision to determine if it constituted an "abuse of discretion." Id. at ¶ 19. However, in our recent decision in State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio- 3315, ¶ 6-9, this court announced that "from this day forward, " "'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.
(¶ 10} "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.'" Crawford ¶ 7. "R.C. 2953.08(G)(2) explicitly states that '[t]he appellate court's standard for review is not whether the sentencing court abused its discretion.'" (Emphasis added.) Id.Instead, the appellate court is permitted to take any of the actions set forth in 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 ...