[Cite as State v. Balch, 2019-Ohio-4930.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2019-T-0037

 - vs - : 

RUSSELL DUANE BALCH, : 

 Defendant-Appellant. : 

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2018 CR 

01166. 

Judgment: Affirmed. 

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant 

Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 

44481 (For Plaintiff-Appellee). 

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For DefendantAppellant). 

MATT LYNCH, J. 

{¶1} Defendant-appellant, Russell D. Balch, appeals the aggregate eight-year 

prison sentence ordered by the Trumbull County Court of Common Pleas following his 

plea of guilty to Operating a Vehicle under the Influence of Alcohol, a Drug of Abuse, or 

a Combination of them and Unauthorized Use of a Vehicle. For the following reasons, 

we affirm the decision of the court below. 

{¶2} On February 1, 2019, the Trumbull County Grand Jury returned an
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Indictment against Balch charging him as follows: 

Count 1: Operating a Vehicle under the Influence of Alcohol, a 

Drug of Abuse, or a Combination of them, a felony of the third 

degree in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(e) (“offender 

* * * previously has been convicted of or pleaded guilty to a 

violation of division (A) of this section that was a felony”), with a 

forfeiture specification pursuant to R.C. 2941.1417(A) and former 

R.C. 2981.02(A)(2) and (3)(a). 

Count 2: Operating a Vehicle under the Influence of Alcohol, a 

Drug of Abuse, or a Combination of them, a felony of the third 

degree in violation of R.C. 4511.19(A)(1)(f) and (G)(1)(e) (“offender 

* * * previously has been convicted of or pleaded guilty to a 

violation of division (A) of this section that was a felony”), with a 

forfeiture specification pursuant to R.C. 2941.1417(A) and former 

R.C. 2981.02(A)(2) and (3)(a). 

Count 3: Tampering with Evidence, a felony of the third degree 

in violation of R.C. 2921.12(A)(1) and (B). 

Count 4: Possession of Marijuana, a minor misdemeanor in 

violation of R.C. 2925.11(A) and (C)(3)(b)1. 

Count 5: Unauthorized Use of a Vehicle, a misdemeanor of the 

first degree in violation of R.C. 2913.03(A) and (D)(2). 

Count 6: Consumption in a Motor Vehicle, a misdemeanor of 

the first degree in violation of R.C. 4301.64(A) and (D)(2)2. 

{¶3} On May 7, 2019, Balch entered guilty pleas to Counts 1, 2, and 5 of the 

Indictment. The State of Ohio subsequently entered a Nolle Prosequi on Counts 3, 4, 

and 6. 

{¶4} On June 4, 2019, the sentencing hearing was held. The two counts of 

Operating a Vehicle under the Influence being allied offenses, the State elected to 

proceed on Count 1. In support of an eight-year-sentence, the prosecutor argued: 

 

1. Contrary to the Indictment, this division describes the possession of marijuana in an amount that 

“equals or exceeds one hundred grams but is less than two hundred grams” as a misdemeanor of the 

fourth degree. 

2. This statute does not contain a division (A) or (D). 
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At the time of this offense, the defendant was driving a stolen car, 

he had a blood alcohol content of .223, and he had 

methamphetamine and marijuana in his system. This defendant 

has three prior felony OVIs, 13 OVIs overall, as well as a prior 

conviction for aggravated vehicular assault. The defendant has 72 

prior criminal cases. 

{¶5} The trial court ruled: 

It’s one of the most outrageous driving records I’ve ever seen. 

Multiple, multiple, multiple OVIs. Luckily, someone wasn’t killed 

here. I’m concerned that 8 years isn’t enough, but that’s all I can 

give you at this time, because I would give you more if I could. You 

are a danger to society to be out there right now. We’ve got to take 

you off for as long as we can. 

So taking into consideration the principles and purposes of 

sentencing, and obviously your likelihood of recidivism, the Court 

will sentence you to 36 months, 3 years, on the underlying offense, 

and 5 years on the repeat OVI offender, and order them to be 

served consecutively, for a total of 8 years. 

And the consecutive sentence is based on your likelihood of 

committing future crimes.3 This is the worst type of this offense. It 

is – this is necessary to protect the public and punish you and not 

disproportionate. And again, the harm is so great or unusual that a 

single term does not adequately reflect the seriousness of this

conduct. And your criminal history shows that consecutive terms 

are needed to protect the public here. 

So you are further ordered a mandatory fine of $1,350. And your 

driver’s license is suspended for life. 

As to Count 5, 180 days in the Trumbull County Jail. That merges 

[i.e., will be served concurrently] with that. 

{¶6} Balch’s sentence was memorialized in a written Entry on Sentence on 

June 13, 2019. 

{¶7} On June 27, 2019, Balch filed a Notice of Appeal. On appeal, he raises 

the following assignment of error: 

 

3. Pursuant to R.C. 2929.13(G)(2), “[t]he offender shall serve the [repeat OVI offender] mandatory prison 

term consecutively to and prior to the prison term imposed for the underlying offense * * *.” 
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{¶8} “[1.] The trial court erred by sentencing the appellant to the maximum 

terms of incarceration available.” 

{¶9} Balch argues “the trial court abused its discretion in imposing the 

maximum term of incarceration available upon Appellant” where “the record in this 

matter reveals that both Appellant and society at large would benefit from Appellant 

being placed in an appropriate treatment program, instead of being simply warehoused 

away for as long as possible.” Appellant’s brief at 2. Contrary to Balch’s argument, a 

court of appeals does not review a felony sentence for abuse of discretion. 

{¶10} “The appellate court’s standard for review is not whether the sentencing 

court abused its discretion.” R.C. 2953.08(G)(2). Rather, an appellate court may 

vacate a sentence “if it clearly and convincingly finds either * * * [t]hat the record does 

not support the sentencing court’s findings * * * [or] [t]hat the sentence is otherwise 

contrary to law.” R.C. 2953.08(G)(2)(a) and (b); State v. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. 

{¶11} This court has previously disavowed the authority cited by Balch, State v. 

Colburn, 9th Dist. Medina No. 14CA0012-M, 2016-Ohio-165, for the proposition that 

“the appellate court reviews the imposition of a maximum term of imprisonment under 

an ‘abuse-of-discretion standard.’” Appellant’s brief at 2. See State v. Smith, 11th Dist. 

Trumbull No. 2018-T-0061, 2019-Ohio-1952, ¶ 11. 

{¶12} In the present case, the trial court was not required to make any findings 

before imposing the maximum sentence. State v Mathis, 109 Ohio St.3d 54, 2006-

Ohio-855, 846 N.E.2d 1, ¶ 37 (“trial courts * * * are no longer required to make findings 

or give their reasons for imposing maximum * * * or more than the minimum 
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sentences”). Rather, “they must consider the sentencing purposes in R.C. 2929.11 and 

the guidelines in R.C. 2929.12.” State v. Figueroa, 11th Dist. Trumbull No. 2018-T0071, 2019-Ohio-3151, ¶ 28. 

{¶13} “A sentence imposed for a felony shall be reasonably calculated to 

achieve the three 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). 

The overriding purposes of felony sentencing are to protect the

public from future crime by the offender and others, to punish the 

offender, and to promote the effective rehabilitation of the offender 

using the minimum sanctions that the court determines accomplish 

those purposes without imposing an unnecessary burden on state 

or local government resources. To achieve those purposes, the 

sentencing court shall consider the need for incapacitating the

offender, deterring the offender and others from future crime, 

rehabilitating the offender, and making restitution to the victim of 

the offense, the public, or both. 

R.C. 2929.11(A). 

{¶14} A trial court’s ability to achieve the overriding purposes of a felony 

sentence is defined as discretionary, as is its authority to impose a sentence within the 

statutorily prescribed range for a given offense. “[A] court that imposes a sentence * * * 

upon an offender for a felony has discretion to determine the most effective way to 

comply with the purposes and principles of sentencing set forth in section 2929.11 of 

the Revised Code.” R.C. 2929.12(A). Likewise, “trial courts have full discretion to 

impose a prison sentence within the statutory range.” Mathis at ¶ 37. 

{¶15} A trial court’s discretion with respect to these aspects of felony sentencing 

does not alter the clear and convincing standard under which this court reviews felony 
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sentences. The Ohio Supreme Court has held that, when reviewing felony sentences 

“imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12,” the 

appellate court applies an “equally deferential” standard of review as it applies when 

reviewing other sentences under R.C. 2953.08(G). “That is, an appellate court may 

vacate or modify any sentence that is not clearly and convincingly contrary to law only if 

the appellate court finds by clear and convincing evidence that the record does not 

support the sentence.” Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, 

at ¶ 23. 

{¶16} Balch raises no argument that his sentence was contrary to law and we do 

not find by clear and convincing evidence that the record does not support the 

imposition of the maximum sentence. The fact that Balch and/or society at large might 

benefit from Balch receiving treatment for substance abuse does not undermine and is 

not even inconsistent with the eight-year sentence which effectively protects the public 

by incapacitating the offender. 

{¶17} The sole assignment of error is without merit. 

{¶18} For the foregoing reasons, Balch’s eight-year prison sentence is affirmed. 

Costs to be taxed against the appellant. 

CYNTHIA WESTCOTT RICE, J., 

MARY JANE TRAPP, J., 

concur.