[Cite as State v. Slamka, 2019-Ohio-3317.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, 

 Appellee, 

 - vs - 

KEITH RANDALL SLAMKA, 

 Appellant. 

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CASE NO. CA2018-10-200 

O P I N I O N 

8/19/2019 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2018-06-0983 

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee 

Michele Temmel, 6 South Second Street, #305, Hamilton, Ohio 45011, for appellant 

 HENDRICKSON, P.J.

{¶ 1} Appellant, Keith Randall Slamka, appeals from the sentence he received in the 

Butler County Court of Common Pleas for two counts of theft. For the reasons discussed 

below, we affirm appellant's sentence. 

{¶ 2} In June 2018, appellant was indicted on two counts of theft in violation of R.C. 

2913.02(A)(1), (B)(2), felonies of the fifth degree, one count of misuse of credit cards in 
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violation of R.C. 2913.21(B)(2), a felony of the fifth degree, and one count of petty theft in 

violation of R.C. 2913.02(A)(1), (B)(2), a misdemeanor of the first degree. According to the 

bill of particulars, the charges arose from appellant's conduct on April 19, 2018 and April 20, 

2018. Appellant was charged with stealing lawn equipment, household items, and a credit 

card from M.C. Appellant then used the credit card to withdraw over $2,000 from ATM 

machines and to charge over $1,500 of goods and services without M.C.'s permission. 

{¶ 3} On September 13, 2018, following plea negotiations, appellant pled guilty to two 

counts of theft in exchange for the remaining counts being dismissed. At the plea hearing, 

the state explained the differences between the two theft counts, stating: "Count I is stealing 

the credit card; Count II is withdrawing money from the ATM machine with the stolen card." 

The trial court accepted appellant's guilty plea, set the matter for sentencing on October 18, 

2018, and ordered that a presentence investigative ("PSI") report be prepared. The court 

also informed the parties that the issue of whether the two theft offenses were allied offenses 

would be "talk[ed] about * * * when we come back for the sentencing." 

{¶ 4} However, the issue of allied offenses was never discussed at the sentencing 

hearing. Instead, the trial court heard from defense counsel and appellant in mitigation and 

allocution before imposing a sentence on appellant. Defense counsel acknowledged 

appellant had served a prior prison term and had "drug and alcohol issues," which included 

the use of heroin and multiple OVI convictions, but counsel nonetheless contended appellant 

was contrite and had taken responsibility for his actions. Counsel stated appellant had 

obtained his G.E.D. and had the ability to work, and counsel requested that the court 

consider imposing community control sanctions rather than a prison term. Appellant 

acknowledged that he had "bit the hand off that's feeding [him]" when he stole from M.C., as 

M.C. had been providing him with a place to live and with money for doing certain jobs for 

her. Appellant stated that he "regret[ted] what [he] done" and wanted "a chance to get out on 
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community control, [see] how things would work; get out and do the right thing." 

{¶ 5} After reviewing the PSI and victim impact statement and considering the 

information presented at the sentencing hearing, the trial court determined that community 

control was not an appropriate sanction and that a prison term was warranted. The trial court 

stated its intent to impose nine-month prison terms on each theft offense, to be served 

consecutively for an aggregate prison term of 18 months. The court made the necessary 

consecutive sentencing findings, informed appellant that he may be subject to a three-year 

optional period of postrelease control upon his release from prison, and ordered appellant to 

pay court costs and $1,047.48 in restitution to M.C. 

{¶ 6} However, after the court first announced its sentence, the following discussion 

occurred: 

THE COURT: Defendant will be held in Butler County Jail until 

he can be transported to prison. Good luck to you, Mr. Slamka. 

[APPELLANT]: Uh-huh. 

THE COURT: And he struts out of the courtroom. 

[APPELLANT]: Make you feel good to give us (sic) that much. 

THE COURT: Oh, hang on, I've got to rethink this a little bit. Mr. 

Slamka wants to mouth off and make a scene here. 

Mr. Slamka, your attorney is still present; what is it you wanted to 

share with the Court? 

[APPELLANT]: No, I just think it's crazy getting 18 months for 

this. (Indiscernible) people selling drugs get less time than 

(indiscernible). 

THE COURT: I see. Well, I would say this: I think your 

comments are reflective of someone who has absolutely no 

remorse or insight into the wrongfulness of your actions. And 

after additional consideration, the Court is inclined to modify your 

sentence. Before I do so, does counsel wish to be heard? 

[DEFENSE COUNSEL]: Judge, I think that – I know the Court's 

had ample time and careful consideration prior to the sentence 
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that had just been handed out, I'd ask – I think that it's probably 

most appropriate to let the sentence that the Court just rendered 

stand, as opposed to being modified at this time. 

THE COURT: Thank you. Mr. Slamka, is there anything else 

you wish to bring to my attention? 

[APPELLANT]: No. 

THE COURT: Oh, all right. State have anything further? 

[PROSECUTOR]: No, Your Honor, thank you. 

THE COURT: After careful consideration, the Court will find a 

more appropriate sentence is 12 months on Count I, 12 months 

on Count II. They run consecutive, that's 24 months in prison. 

All the same warnings and information I previously gave you 

apply, as well as the consecutive findings. 

{¶ 7} At defense counsel's request, the trial court noted appellant's objection to the 

imposition of maximum, consecutive sentences. Thereafter, the trial court issued its 

Judgment of Conviction Entry, which imposed consecutive 12-month prison terms for 

appellant's theft offenses. 

{¶ 8} Appellant appealed his sentence, raising two assignments of error. 

{¶ 9} Assignment of Error No 1: 

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT 

IMPOSED A SECOND, HARSHER SENTENCE THAN ORIGINALLY CONTEMPLATED. 

{¶ 11} In his first assignment of error, appellant challenges his sentence, arguing that 

the "imposition of a harsher, maximum sentence than what was originally contemplated by 

the trial judge was not clearly and convincingly supported by the record and defied the 

purposes and principles of sentencing under R.C. 2929.11 and 2929.12." 

{¶ 12} We review the imposed sentence under the standard of review set forth in R.C. 

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-
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3315, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's 

decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an 

appellate court to modify or vacate a sentence only if the appellate court finds by clear and 

convincing evidence that "the record does not support the trial court's findings under relevant 

statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1. A sentence is not 

clearly and convincingly contrary to law where the trial court "considers the principles and 

purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes 

postrelease control, and sentences the defendant within the permissible statutory range." 

State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8; State v. Julious, 

12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Thus, this court may "increase, 

reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the 

sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146 

Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7. 

{¶ 13} A trial court has discretion to impose a prison term on an offender who pleads 

guilty to a fifth-degree felony that is not an offense of violence if the offender "at the time of 

the offense was serving, or the offender previously had served, a prison term." R.C. 

2929.13(B)(1)(b)(x). "[I]n determining whether to impose a prison term as a sanction for a 

felony of the * * * fifth degree, the sentencing court shall comply with the purposes and 

principles of sentencing under section 2929.11 of the Revised Code and with section 

2929.12 of the Revised Code." R.C. 2929.13(B)(2). 

{¶ 14} The purposes of felony sentencing are to protect the public from future crime by 

the offender and to punish the offender. Former R.C. 2929.11(A).1 A felony sentence must 

 

1. After appellant was sentenced on October 18, 2018, R.C. 2929.11 was amended. See 2018 Am.Sub.S.B. 66 

(effective Oct. 29, 2018). The amendment added a third purpose of felony sentencing – "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." R.C. 2929.11(A). 
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be reasonably calculated to achieve the purposes set forth in R.C. 2929.11(A) 

"commensurate with and not demeaning to the seriousness of the offender's conduct and its 

impact on the victim, and consistent with sentences imposed for similar crimes committed by 

similar offenders." Former R.C. 2929.11(B). In sentencing a defendant, a trial court is not 

required to consider each sentencing factor, but rather to exercise its discretion in 

determining whether the sentence satisfies the overriding purpose of Ohio's sentencing 

structure. State v. Littleton, 12th Dist. Butler No. CA2016-03-060, 2016-Ohio-7544, ¶ 12. 

The factors set forth in R.C. 2929.12 are nonexclusive, and R.C. 2929.12 explicitly allows a 

trial court to consider any relevant factors in imposing a sentence. State v. Birt, 12th Dist. 

Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 64. 

{¶ 15} After a thorough review of the record, we find no error in the trial court's 

decision to sentence appellant to 12 months in prison for each of his fifth-degree felony theft 

offenses. The record plainly reveals that appellant's sentence is not clearly and convincingly 

contrary to law as appellant served a prior prison term, as contemplated by R.C. 

2929.13(B)(1)(b)(x), and the court properly considered the principles and purposes of R.C. 

2929.11, as well as the factors listed in R.C. 2929.12, informed appellant he may be subject 

to up to three years of postrelease control upon his release from prison, and sentenced 

appellant within the permissible statutory range for his fifth-degree felonies in accordance 

with R.C. 2929.14(A)(5). 

{¶ 16} In both the court's sentencing entry and at the sentencing hearing, the trial court 

specifically stated it had "considered the purposes and principles of sentencing [and] 

weighed the recidivism and seriousness factors" before finding that appellant was not 

amenable to available community control sanctions and imposing a prison sentence. The 

court noted it had reviewed the PSI report, which detailed appellant's lengthy criminal history 

involving multiple convictions for OVI, petty theft, and disorderly conduct, as well as a 
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conviction for felony nonsupport of dependents. The court also discussed the fact that 

appellant's relationship with the victim facilitated the offense, noting that appellant had 

victimized the woman who gave him a place to live and provided him with money. The court 

stated, "the biggest problem here, [is] not that you've stumbled and fallen in the past, but 

[that] this woman [was] trying to help you and you take her rototiller, you take her power 

washer, you take whatever else. * * * I find that problematic." 

{¶ 17} The court was also clearly troubled by appellant's lack of genuine remorse and 

insight into his behavior. Although appellant had acknowledged his wrongdoing by pleading 

guilty and stating that he "bit the hand off that's feeding [him]," appellant's comments that the 

contemplated 18-month prison sentence was "crazy" and was only given to "make [the judge] 

feel good" demonstrated appellant's failure to appreciate his actions. As appellant's 

statements were made before the conclusion of the sentencing hearing, the trial court was 

certainly entitled to consider these statements in ensuring the sentence it imposed complied 

with principles and purposes of felony sentencing. As the court noted, appellant's statements 

were "reflective of someone who has absolutely no remorse or insight into the wrongfulness 

of [his] actions." "Genuine remorse is one factor to be considered by the court when it makes 

its sentencing decision." State v. Rehab, 150 Ohio St.3d 152, 2017-Ohio-1401, ¶ 28, citing 

R.C. 2929.12(D)(5). The trial court's decision to therefore consider appellant's lack of 

genuine remorse and impose consecutive, 12-month prison terms under the facts presented 

in this case was appropriate. 

{¶ 18} Appellant's argument that his criminal history, his relationship with the victim, 

and his lack of remorse do not support the 12-month sentences imposed on each theft 

offense are without merit. As this court has previously recognized, it is "[t]he trial court [that], 

in imposing a sentence, determines the weight afforded to any particular statutory factors, 

mitigating grounds, or other relevant circumstances." State v. Steger, 12th Dist. Butler No. 
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CA2016-03-059, 2016-Ohio-7908, ¶ 18, citing State v. Stubbs, 10th Dist. Franklin No. 13AP810, 2014-Ohio-3696, ¶ 16. The fact that the trial court chose to weigh various sentencing 

factors differently than how appellant would have weighed them does not mean the trial court 

erred in imposing appellant's sentence. The trial court clearly considered and balanced the 

factors in R.C. 2929.12, and the record supports the trial court's decision to impose 12-month 

prison terms on each theft count. 

{¶ 19} The record further supports the trial court's imposition of consecutive 

sentences. Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step 

analysis and make certain findings before imposing consecutive sentences. State v. Smith,

12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-1093, ¶ 7. Specifically, the trial court 

must find that (1) the consecutive sentence is necessary to protect the public from future 

crime or to punish the offender, (2) consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct and to the danger the offender poses to the public, and 

(3) one of the following applies: 

(a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a 

sanction imposed pursuant to section 2929.16, 2929.17, or 

2929.18 of the Revised Code, or was under post-release control 

for a prior offense. 

(b) At least two of the multiple offenses were committed as part 

of one or more courses of conduct, and the harm caused by two 

or more of the multiple offenses so committed was so great or 

unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately 

reflects the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from 

future crime by the offender. 

R.C. 2929.14(C)(4); Smith at ¶ 7. 

{¶ 20} "In order to impose consecutive terms of imprisonment, a trial court is required 
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to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and 

incorporate its findings into its sentencing entry." State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, ¶ 37. While the trial court is not required to give reasons explaining these 

findings, it must be clear from the record that the court engaged in the required sentencing 

analysis and made the requisite findings. Smith at ¶ 8. "A consecutive sentence is contrary 

to law where the trial court fails to make the consecutive sentencing findings as required by 

R.C. 2929.14(C)(4)." State v. Marshall, 12th Dist. Warren No. CA2013-05-042, 2013-Ohio5092, ¶ 8. 

{¶ 21} The record shows that the trial court made the requisite findings at the 

sentencing hearing and later memorialized the findings in its sentencing entry. Specifically, 

at the sentencing hearing, the court stated: 

[G]iven the circumstances of this case * * * the presumption as to 

concurrent sentences has been rebutted. The Court will find that 

consecutive sentences are necessary to adequately protect the 

public and to punish the defendant and are not disproportionate 

and will find that the defendant's criminal history shows that 

consecutive terms are not needed to adequately protect the 

public. 

{¶ 22} Although the language the trial court used in making the consecutive sentence 

findings was not a word-for-word recitation of the language in the statute, such is not 

required. State v. Alhashimi, 12th Dist. Nos. CA2016-07-065 and CA2017-07-066, 2017-

Ohio-7658, ¶ 67. "[A]s long as the reviewing court can discern that the trial court engaged in 

the correct analysis and can determine that the record contains evidence to support the 

findings, consecutive sentences should be upheld." Bonnell, 2014-Ohio-3177 at ¶ 29. 

{¶ 23} Here, the trial court engaged in the correct analysis and the record contains 

evidence supporting the court's findings under R.C. 2929.14(C)(4). As such, we find no error 

in the court's imposition of consecutive sentences. Appellant's first assignment of error is, 

therefore, overruled. 
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{¶ 24} Assignment of Error No. 2: 

{¶ 25} THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE OF 

APPELLANT WHEN IT IMPOSED MULTIPLE SENTENCES FOR ALLIED OFFENSES. 

{¶ 26} In his second assignment of error, appellant argues the trial court committed 

plain error when it failed to merge his two theft convictions as allied offenses of similar 

import. Appellant did not raise the issue of merger or argue that the offenses were allied at 

the sentencing hearing. 

{¶ 27} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of 

multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio 

App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). However, the "failure to raise the issue of allied 

offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is 

not reversible error unless it affected the outcome of the proceeding and reversal is 

necessary to correct a manifest miscarriage of justice." State v. Rogers, 143 Ohio St.3d 385, 

2015-Ohio-2459, ¶ 3. 

{¶ 28} In determining whether offenses are allied and should be merged for 

sentencing, courts are instructed to consider three separate factors – the conduct, the 

animus, and the import. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of 

the syllabus. Offenses do not merge and a defendant may be convicted and sentenced for 

multiple offenses if any of the following are true: "(1) the conduct constitutes offenses of 

dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) 

the conduct shows that the offenses were committed with separate animus." Id. at paragraph 

three of the syllabus and ¶ 25. Two or more offenses of dissimilar import exist "when the 

defendant's conduct constitutes offenses involving separate victims or if the harm that results 

from each offense is separate and identifiable." Id. at paragraph two of the syllabus. 

{¶ 29} "At its heart, the allied-offense analysis is dependent upon the facts of a case 
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because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. "The evidence at 

trial or during a plea or sentencing hearing will reveal whether the offenses have similar 

import." Id. The burden is on the defendant to establish "his entitlement to the protection 

provided by R.C. 2941.25 against multiple punishments for a single criminal act." State v. 

Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 14. 

{¶ 30} Appellant was convicted of two counts of theft in violation of R.C. 

2913.02(A)(1), which provides that "[n]o person, with the purpose to deprive the owner of 

property or services, shall knowingly obtain or exert control over either the property or 

services * * * [w]ithout the consent of the owner or person authorized to give consent." 

Where the property stolen is a credit card or the value of the property is more than $1,000 

but less than $7,500, the offense is a felony of the fifth degree. R.C. 2913.02(B)(2). 

{¶ 31} The record in the present case demonstrates that appellant's two theft offenses 

are not allied offenses of similar import as the offenses were committed separately and 

involved different conduct. As the state indicated during the plea hearing, the first count of 

theft related to appellant stealing M.C.'s credit card, whereas the second count of theft 

related to appellant withdrawing money from ATM machines with the stolen credit card. The 

first theft offense was completed after appellant took M.C.'s credit card without consent on 

April 19, 2018. The second theft offense did not occur until later, when appellant used the 

credit card to obtain cash from ATM machines on April 19 and April 20, 2018. As we have 

previously recognized, "'[b]ecause one offense was completed before the other offense 

occurred, the two offenses were committed separately for purposes of R.C. 2941.25(B) 

notwithstanding their proximity in time and that one was committed in order to commit the 

other.'" State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 16, quoting 

State v. DeWitt, 2d Dist. Montgomery No. 24437, 2012-Ohio-635, ¶ 33. Appellant's theft 

offenses are therefore not allied offenses of similar import, and the trial court did not commit 
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plain error in not merging the offenses. Appellant's second assignment of error is overruled. 

{¶ 32} Judgment affirmed. 

 S. POWELL and RINGLAND, JJ., concur.