[Cite as State v. Davis, 2013-Ohio-1627.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMICHAEL P. DAVIS 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 12 CA 59 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 11 CR 480 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: April 22, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH W. OSWALT J. MATTHEW DAWSON 

PROSECUTING ATTORNEY 35 South Park Place, Suite 10 

JUSTIN T. RADIC Newark, Ohio 43055 

ASSISTANT PROSECUTOR 

20 South Second Street, Fourth Floor 

Newark, Ohio 43055 
Licking County, Case No. 12 CA 59 2

Wise, J. 

{¶1} Appellant Michael P. Davis appeals from his conviction and sentence for 

grand theft in the Court of Common Pleas, Licking County. The relevant facts leading to 

this appeal are as follows. 

{¶2} On September 30, 2011, appellant was indicted on one count of grand 

theft, R.C. 2913.02(A)(1) and/or (A)(3), a felony of the fourth degree, and one count of 

telecommunications fraud, R.C. 2913.05(A), a felony of the fourth degree. The charges 

were essentially based on appellant’s conduct in a scheme to obtain money or credits 

following fraudulent deposits into ATM machines. 

{¶3} On May 16, 2012, appellant entered pleas of guilty to both of the aforesaid 

counts. The trial court, upon accepting the pleas, chose to order an updated 

presentence investigation report and defer sentencing to another date. However, about 

one hour later, the case was reconvened after deputies informed the judge that 

appellant was causing problems at the jail. See Tr. Plea and Sentencing, at 30. The 

court then proceeded with sentencing over the request of appellant and his counsel to 

defer the hearing. The trial court merged count two into count one and sentenced 

appellant to eighteen months in prison. The trial court also sentenced appellant to a 

post-release control term of two years, stating orally that this part of the decision was 

based chiefly on appellant's reported conduct and threats and that the court was “just 

not going to put up with this crap ***.” Tr. at 35. 

{¶4} On July 13, 2012, appellant filed a notice of appeal, thereafter obtaining 

leave from this Court for filing on a delayed basis. He herein raises the following two 

Assignments of Error: 
Licking County, Case No. 12 CA 59 3

{¶5} “I. WHETHER OR NOT THE TRIAL COURT'S SENTENCING WAS 

CLEARLY AND CONVINCINGLY CONTRARY TO LAW AS IT DID NOT CONSIDER 

THE STATUTORY FACTORS OF OHIO REVISED CODE SECTIONS 2929.11 AND 

2929.12? 

{¶6} “II. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION 

IN THE IMPOSITION OF SENTENCING.” 

I. 

{¶7} In his First Assignment of Error, appellant contends the trial court erred in 

sentencing him without properly considering the statutory factors under R.C. 2929.11 

and 2929.12. We disagree. 

{¶8} R.C. 2929.11 and 2929.12 require consideration of the purposes and 

principles of felony sentencing, as well as the factors of seriousness and recidivism. 

See State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38. Although 

the Ohio Supreme Court’s Foster decision [109 Ohio St.3d 1, 2006–Ohio–856] 

eliminated mandatory judicial fact-finding, it left intact R.C. 2929.11 and 2929.12. See

State v. Hobby, Ashland App.No. 11 COA 41, 2012–Ohio–2420, ¶ 25, citing State v. 

Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, ¶ 13. Thus, “in exercising 

its discretion, a court is merely required to ‘consider’ the purposes of sentencing in R.C. 

2929.11 and the statutory * * * factors set forth in R.C. 2929.12.” State v. Sutton, 8th 

Dist. No. 97132, 2012–Ohio–1054, ¶ 11, quoting State v. Lloyd, 11th Dist. No. 2006–L–

185, 2007–Ohio–3013, ¶ 44. The findings of the trial court in regard to R.C. 2929.11 

and 2929.12 need not be in the sentencing transcript if the findings are contained in the 
Licking County, Case No. 12 CA 59 4

journal entry. See State v. O’Donnell, Summit App.No. 23525, 2007-Ohio-1943, ¶ 7 

(additional citations omitted). 

{¶9} The judgment entry in the case sub judice states that prior to imposing 

sentence, the trial court had considered inter alia "the purposes and principles of 

sentencing" and had "balanced the seriousness and recidivism factors." See Judgment 

of Conviction and Sentence, May 16, 2012, at 2. Although appellant herein asserts that 

the trial court “simply was aggravated at [him] and wanted him gone,” (Appellant’s Brief 

at 9), upon review we find the trial court sufficiently considered the sentencing factors 

set forth in R.C. 2929.11 and 2929.12. 

{¶10} Appellant's First Assignment of Error is overruled. 

II. 

{¶11} In his Second Assignment of Error, appellant argues the trial court abused 

its discretion in sentencing him on the merged count of grand theft. We disagree. 

{¶12} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, a 

plurality opinion, the Ohio Supreme Court established a two-step procedure for 

reviewing a felony sentence. The first step is to “examine the sentencing court's 

compliance with all applicable rules and statutes in imposing the sentence to determine 

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this 

first step is satisfied, the second step requires the trial court's decision be reviewed 

under an abuse-of-discretion standard. Id. But we have recognized that “[w]here the 

record lacks sufficient data to justify the sentence, the court may well abuse its 

discretion by imposing that sentence without a suitable explanation.” State v. 

Firouzmandi, Licking App.No. 2006–CA–41, 2006–Ohio–5823, ¶ 52. 
Licking County, Case No. 12 CA 59 5

{¶13} In the case sub judice, the sentence at issue is within the statutory range 

for a fourth-degree felony. See R.C. 2929.14(A)(4). Additionally, at the sentencing 

hearing the trial court considered appellant's prior criminal record and his performance 

on both supervision and while he was institutionalized. Tr. at 20, 35. The court allowed 

both appellant and counsel for appellant to make statements regarding sentencing. Tr. 

at 17, 19, 31-33. Appellant’s counsel indicated that appellant has “a severe drug 

problem,” but that he had not obtained treatment during his two prior prison stints. Tr. at 

32. Appellant asserted he did not understand why he was brought back that day to 

complete sentencing. Id. Appellant apologized to the court and stated that he wanted to 

“be there” for his soon-to-be-born daughter. Tr. at 33. 

{¶14} Upon review, we hold the trial court did not abuse its discretion in 

sentencing appellant to prison for eighteen months, with post-release control, even 

though the trial court retracted its decision to obtain a PSI report. The prison term was 

within the statutory ranges, the trial court considered the statutory factors for 

sentencing, and the trial court duly considered appellant’s available history and criminal 

record. 

 
Licking County, Case No. 12 CA 59 6

{¶15} Appellant's Second Assignment of Error is therefore overruled. 

{¶16} For the foregoing reasons, the decision of the Court of Common Pleas, 

Licking County, Ohio, is hereby affirmed. 

By: Wise, J. 

Hoffman, P. J., and 

Farmer, J., concur. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES 

JWW/d 0328 
Licking County, Case No. 12 CA 59 7

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MICHAEL P. DAVIS : 

 : 

 Defendant-Appellant : Case No. 12 CA 59 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed. 

 Costs assessed to appellant. 

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 JUDGES