[Cite as State v. Parsons, 2011-Ohio-168.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 2-10-27 

 v. 

KEITH PARSONS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Auglaize County Common Pleas Court 

Trial Court No. 2010-CR-0023 

Judgment Affirmed 

Date of Decision: January 18, 2011 

 

APPEARANCES: 

Gerald F. Siesel for Appellant 

Edwin A. Pierce for Appellee 
Case No. 2-10-27 

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PRESTON, J.

{¶1} Defendant-appellant, Keith Parsons (hereinafter “Parsons”), appeals 

the Auglaize County Court of Common Pleas’ judgment of sentence. For the 

reasons that follow, we affirm. 

{¶2} The facts relevant to this appeal are as follows. In February of 2010, 

the Grand Lake Task Force (“the task force”) was told by an informant that 

Parsons was manufacturing methamphetamines in his home in St. Mary’s, Ohio, 

and that the smell from this process could be detected upon opening the front door 

to the home. Officers from the task force decided to drive past the home, and after 

observing that the lights in the home were on, they decided to knock on the door 

and speak with the occupants. A woman answered the door, stated that she was 

not the owner of the home, and went to get the owner. Parsons came to the door 

but immediately attempted to shut it upon learning that the people at his door were 

law enforcement officials. Eventually, Parson’s live-in girlfriend, Chera York 

(“York”), came to the door and spoke with the officers. York informed the 

officers that there were no drugs in the home and denied that methamphetamines 

were being manufactured in her home. York also denied the officers access to her 

home, absent a search warrant, when they asked if they could look inside the 

home. York further told the officers that her two children were in the home, as 
Case No. 2-10-27 

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were her friend’s two children. The officers did not detect the odor of any 

chemicals coming from the home, and they left. 

{¶3} Several days later, the task force learned that Parsons had an active 

warrant for his arrest. Once they confirmed that Parsons was home, officers from 

the St. Mary’s Police Department arrived and arrested him. This time, the officers 

noticed the smell of ammonia. After Parsons was removed from the home and 

taken to jail, York spoke with the officers, as did her father, who lived next door. 

York consented to a search of her home. In the basement, the officers noticed that 

the ammonia odor was stronger, and they observed several items commonly used 

in the manufacture of methamphetamines. After York expressed concern about 

allowing them to continue searching, the officers decided to attempt to obtain a 

search warrant. York then informed them that Parsons smoked 

methamphetamines and was addicted to the drug. The officers advised York that 

she should take her children to her parents’ home for safety reasons, and York 

agreed. 

{¶4} The officers obtained the search warrant for Parson’s home. During 

this search, officers found drugs and drug paraphernalia. The officers also located 

a drain in the home that contained a substance that was off-gassing ammonia. The 

presence of this substance in the drain, along with the nature of the paraphernalia 
Case No. 2-10-27 

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found in the home, indicated to the officers that methamphetamines were being 

manufactured in the home. 

{¶5} Parsons later admitted that he was manufacturing 

methamphetamines in his home. The investigation further revealed that 

throughout the course of time that Parsons was manufacturing methamphetamines 

in his home, three children, ages four, nine, and ten, were present in the home and 

within 100 feet of these materials. 

{¶6} On March 16, 2010, Parsons was indicted on three counts: Count I – 

Illegal assembly or possession of chemicals for the manufacture of drugs, 

specifically methamphetamines, in violation of R.C. 2925.041(A), (C)(1), a felony 

of the third degree; Count II – Illegal manufacture of drugs, specifically 

methamphetamine, in the vicinity of a juvenile in violation of R.C. 2925.04(A), 

(C)(3)(b), a felony of the first degree; and Count III – Endangering children in 

violation of R.C. 2919.22(B)(6), a felony of the third degree. Parsons initially 

entered pleas of not guilty on all three counts. 

{¶7} On April 30, 2010, following pre-trial negotiations, Parsons 

withdrew his previously tendered plea of not guilty as to Count I and pleaded 

guilty to that same count. In addition, Parsons pled guilty to one count contained 

in a bill of information against him of endangering children in violation of R.C. 
Case No. 2-10-27 

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2919.22(B)(6).1

 In exchange, the State dismissed Counts II and III of the 

indictment. The State further indicated on the record that at the time of sentence it 

would be requesting a prison sentence of four years, which would be a mandatory 

sentence, on Count I and five years on the count contained in the bill of 

information, which was not a mandatory sentence, and would ask that the 

sentences be served consecutively to one another for an aggregate sentence of nine 

years. After conducting a plea colloquy with Parsons, including informing him of 

the potential sentences for the two offenses to which he was pleading guilty, the 

trial court accepted his pleas of guilty and ordered a pre-sentence investigation 

(“PSI”). 

{¶8} On June 21, 2010, the sentencing hearing was held. At that time, the 

trial court informed Parsons that it had failed to advise him of the proper sentence 

for a violation of R.C. 2919.22(B)(6), endangering children, when the drug 

involved is methamphetamine. The court then informed Parsons that it was 

required to impose as a mandatory prison term one of the prison terms prescribed 

for a felony of the third degree that is not less than two years, which meant that the 

court had to sentence him to prison on that count for two, three, four, or five years. 

Noting that Parsons was not properly advised of the mandatory nature of the 

 

1

 The count of child endangering contained in the bill of information was based upon the same facts as 

Count III of the indictment. However, Count III of the indictment omitted the requisite mental state for the 

offense. Thus, the bill of information was prepared in accordance with the plea negotiations and contained 

the requisite mental state for the offense. 
Case No. 2-10-27 

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sentence and that the minimum term of imprisonment was two rather than one 

year as indicated at the change of plea hearing, the trial court informed Parsons 

that he could withdraw his pleas of guilty if he so desired. Parsons declined. The 

trial court made further inquiry as to whether Parsons was making this choice 

freely, voluntarily, and without being threatened or otherwise intimidated in any 

way and further advised Parsons of the minimum and maximum penalties for the 

two offenses. Parsons indicated that he understood what he was being told and 

that he wanted to proceed to sentencing on the charges to which he previously pled 

guilty. 

{¶9} During sentencing, the prosecution stated that in light of the fact that 

both sentences were mandatory, it was changing its prior recommendation from a 

request of four years on Count I and five years on the count contained in the bill of 

information to be served consecutively for an aggregate of nine years to a request 

of three years on Count I and two years on the count contained in the bill of 

information to be served consecutively to one another for an aggregate of five 

years. In so doing, the prosecutor stated that, originally, it was her intent to have 

Parsons serve five years in prison and then have four years of supervision. 

However, because of the mandatory and minimum prison term that had to be given 

to Parsons for this type of child endangering offense, the prosecutor’s original 

intentions were no longer possible. This statement then prompted the trial court to 
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further explain post-release control to Parsons and to ask whether he understood 

this supervision as well, which he indicated that he did. 

{¶10} Following the State’s sentencing recommendation, counsel for 

Parsons and Parsons, himself, were permitted to present mitigation. As Parsons 

was addressing the trial court, the court asked several questions of him, including 

questions about Parsons’ criminal history that were noted in the PSI. Parson stated 

that he was not convicted or even charged with a number of the offenses noted in 

the PSI, and his father, who was present at the hearing, informed the court that 

some of those charges may have been his. 

{¶11} At the conclusion of Parsons’ presentation, the trial court sentenced 

him to four years of imprisonment on Count I of the indictment and three years of 

imprisonment on the count contained in the bill of information. The court further 

ordered that these sentences be served consecutively for an aggregate, mandatory 

prison term of seven years. 

{¶12} Parsons now appeals raising one assignment of error for our review. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT’S SENTENCE OF THE DEFENDANTAPPELLANT TO MANDATORY CONSECUTIVE 

SENTENCES TOTALING SEVEN YEARS WAS CONTRARY 

TO LAW AND FURTHER CONSTITUTED AN ABUSE OF 

DISCRETION IN FAILING TO PROPERLY CONSIDER AND 

APPLY THE FELONY SENTENCING GUIDELINES SET 

FORTH IN R.C. 2929.11 AND 2929.12. 
Case No. 2-10-27 

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{¶13} In his sole assignment of error, Parsons asserts that the trial court’s 

sentence is contrary to law because the record demonstrates that the trial court 

failed to consider R.C. 2929.11 and R.C. 2929.12 in rendering its sentence. 

Parsons further maintains that the trial court abused its discretion in sentencing 

him to an aggregate term of seven years in prison because the record does not 

support the trial court’s decision. 

{¶14} A trial court’s sentence will not be disturbed on appeal absent a 

defendant’s showing by clear and convincing evidence that the sentence is 

unsupported by the record; the sentencing statutes’ procedure was not followed, or 

there was not a sufficient basis for the imposition of a prison term; or that the 

sentence is contrary to law.2

 State v. Ramos, 3rd Dist. No. 4-06-24, 2007-Ohio767, ¶ 23 (“the clear and convincing evidence standard of review set forth under 

R.C. 2953.08(G)(2) remains viable with respect to those cases appealed under the 

applicable provisions of R.C. 2953.08(A), (B), and (C)”); State v. Rhodes, 12th

Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3rd Dist. Nos. 1-

04-38, 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). Clear and 

convincing evidence is that “which will produce in the mind of the trier of facts a 

 

2 We note that the Supreme Court of Ohio recently released a plurality opinion in State v. Kalish, 120 Ohio 

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, which established a two-part test utilizing both the clear and 

convincing and abuse of discretion standard of review in reviewing felony sentencing decisions under R.C. 

2953.08(G). While we cite to this Court’s precedential clear and convincing standard of review, which was 

affirmed and adopted by three dissenting Justices in Kalish, we note that the outcome of our decision in 

this case would be identical under the Kalish plurality’s two-part test as well. 
Case No. 2-10-27 

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firm belief or conviction as to the facts sought to be established.” Cross v. 

Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the 

syllabus; State v. Boshko (2000), 139 Ohio App.3d 827, 835, 745 N.E.2d 1111. 

An appellate court should not, however, substitute its judgment for that of the trial 

court because the trial court is ‘“clearly in the better position to judge the 

defendant’s likelihood of recidivism and to ascertain the effect of the crimes on 

the victims.’” State v. Watkins, 3rd Dist. No. 2-04-08, 2004-Ohio-4809, ¶ 16, 

quoting State v. Jones, 93 Ohio St.3d 391, 400, 2001-Ohio-1341, 754 N.E.2d 

1252, abrogated by State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 

N.E.2d 1. 

{¶15} Parsons correctly asserts that a trial court must consider R.C. 

2929.11 and R.C. 2929.12 when sentencing a felony offender. Mathis, 2006-

Ohio-855, at ¶ 38. A sentence imposed without any consideration given to these 

statutes is contrary to law. See Kalish, 2008-Ohio-4912 at ¶¶ 13, 18. When the 

record is silent concerning the trial court’s consideration of these sentencing 

statutes, it is presumed that the trial court considered them. Id. at ¶ 18, fn. 4, citing 

State v. Adams (1988), 37 Ohio St.3d 295, 297-98, 525 N.E.2d 1361. 

Furthermore, the trial court is not required to either discuss the factors on the 

record or even to state that the factors were considered on the record, as long as 

the record is sufficient for a court to determine that the consideration occurred. 
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State v. Ditto, 3rd Dist. No. 12-09-08, 2010-Ohio-1503, ¶ 4, citing State v. Scott, 

3rd Dist. No. 6-07-17, 2008-Ohio-86. 

{¶16} In the case sub judice, the trial court did not state at the sentencing 

hearing that it had considered R.C. 2929.11 and R.C. 2929.12 or otherwise state 

that it had considered the relevant sentencing statutes or factors. However, in its 

judgment entry, the trial court stated, 

[t]he Court has considered the record, oral statements, any 

Victim Impact Statement and Pre-Sentence Report prepared, as 

well as the principles and purposes of sentencing under Ohio 

Revised Code §2929.11, and has balanced the seriousness and 

recidivism factors under Ohio Revised Code §2929.12. 

(Judg. Entry, 6/21/10). Given this statement, we find that the record sufficiently 

demonstrates that the trial court considered both R.C. 2929.11 and R.C. 2929.12 as 

required. Additionally, both offenses required that the trial court impose a prison 

term of two, three, four, or five years. See R.C. 2925.041(C)(1), 2919.22(E)(3)(a), 

2929.14(A)(3). Thus, the sentence for Count I of the indictment of four years and 

the sentence for the count contained in the bill of information of three years were 

well within the statutory range. Furthermore, we note that the PSI revealed that 

Parsons had at least one prior conviction, if not more than one given the questions 

raised at the sentencing hearing regarding the accuracy of the PSI, and was 

engaging in a highly dangerous and unstable activity in his home when three 

young children were present; manufacturing methamphetamines in one’s home 
Case No. 2-10-27 

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places anyone in the home in grave danger as any action that would have disturbed 

this volatile process had the potential to be catastrophic. Thus, the record amply 

supports the trial court’s sentence in this case, and Parsons has failed to show by 

clear and convincing evidence that his sentence was contrary to law. 

{¶17} Accordingly, Parsons’ sole assignment of error is overruled.

{¶18} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

 Judgment Affirmed

ROGERS, P.J., concurs. 

/jlr 

WILLAMOWSKI, J., Concurring Separately. 

{¶19} I concur fully with the majority opinion, however write separately to 

emphasize that the appropriate standard of review was applied. The standard of 

review for sentences was set forth in the plurality opinion of Kalish, supra. In 

Kalish, four panel members noted that R.C. 2953.08(G) requires that appellate 

courts require appellants to meet a clearly and convincingly contrary to law 

standard of review when reviewing a sentence.3

 For example, if the sentencing 

court imposed consecutive sentences, as in this case, the standard of review would 

 

3

 Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all 

reached this conclusion. 
Case No. 2-10-27 

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be whether appellant has shown that the sentence was clearly and convincingly 

contrary to law. However, if the appeal is based upon the proper application of the 

factors in R.C. 2929.12, four panel members in Kalish would require review using 

an abuse of discretion standard as specifically set forth in R.C 2929.12.4

{¶20} In his assignment of error, Parsons’ alleges that his sentence is 

contrary to law because the trial court did not indicate that it considered the factors 

set forth in R.C. 2929.11 and R.C. 2929.12 at sentencing. Parsons does not argue 

that the trial court incorrectly applied the factors set forth in R.C. 2929.12(B), 

which would require a review using an abuse of discretion standard. Instead, 

Parsons alleges that the factors were not considered at all. The abuse of discretion 

standard is only used in cases in which the appellant challenges how the factors 

were applied, not if they were applied. Thus, the clearly and convincingly 

standard used to review this case, as set forth in R.C. 2953.08(G)(2) is the proper 

standard of review herein.

 

4

 Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this 

position, although the first three would use both standards of review in all cases.