[Cite as State v. Hobby, 2017-Ohio-6957.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJASON R. HOBBY 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Craig R. Baldwin, J. 

Case No. 2017 CA 0025 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 2016 CR 0338 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: July 24, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

GARY BISHOP WILLIAM C. FITHIAN, III 

PROSECUTING ATTORNEY 111 North Main Street 

JOSEPH C. SNYDER Mansfield, Ohio 44902 

ASSISTANT PROSECUTOR 

38 South Park Street 

Mansfield, Ohio 44902 
Richland County, Case No. 2017 CA 0025 2

Wise, John, J. 

{¶1} Appellant Jason R. Hobby appeals the sentence imposed on him by the 

Richland County Common Pleas Court following a guilty plea to one count of Possession 

of Heroin. 

{¶2} Appellee is State of Ohio. 

STATEMENT OF THE FACTS AND CASE

{¶3} On June 14, 2016, Appellant Jason R. Hobby was indicted on one count of 

possession of heroin, in violation of R.C. §2925.11 (A) and (C)(6)(a), a felony of the fifth 

degree. 

{¶4} On December 20, 2016, Appellant entered a plea of guilty to the charge. 

{¶5} On January 18, 2017, after Appellant failed to show for sentencing, a bench 

warrant was issued for his arrest. 

{¶6} Appellant was located and sentencing occurred on February 22, 2017. The 

trial court sentenced Appellant to twelve (12) months in prison, three years discretionary 

post-release control, and $40 in restitution to the crime lab. Trial counsel objected to the 

maximum sentence (T. at 20). 

{¶7} Appellant now appeals, assigning the following error for review: 

{¶8} “I. THE TRIAL COURT’S SENTENCE OF TWELVE MONTHS ON A FIFTH 

DEGREE FELONY IS CONTRARY TO LAW AND IS REVERSIBLE ERROR.” 

I. 

{¶9} In his sole Assignment of Error, Appellant claims his sentence is contrary to 

law. We disagree. 
Richland County, Case No. 2017 CA 0025 3

{¶10} Initially we note that pursuant to R.C. §2953.08(A)(1), Appellant is entitled 

to appeal as of right the maximum sentence imposed on his conviction. 

{¶11} A trial court's imposition of a maximum prison term for a felony conviction is 

not contrary to law as long as the sentence is within the statutory range for the offense, 

and the court considers both the purposes and principles of felony sentencing set forth in 

R.C. §2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State 

v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16. 

{¶12} R.C. §2929.11(A) governs the purposes and principles of felony sentencing 

and provides that a sentence imposed for a felony shall be reasonably calculated to 

achieve the two overriding purposes of felony sentencing, which are (1) to protect the 

public from future crime by the offender and others, and (2) to punish the offender using 

the minimum sanctions that the court determines will accomplish those purposes. Further, 

the sentence imposed shall be “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 by similar offenders.” R.C. §2929.11(B). 

{¶13} R.C. §2929.12 sets forth the seriousness and recidivism factors for the 

sentencing court to consider in determining the most effective way to comply with the 

purposes and principles of sentencing set forth in R.C. §2929.11. The statute provides a 

non-exhaustive list of factors a trial court must consider when determining the 

seriousness of the offense and the likelihood that the offender will commit future offenses. 

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

the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 

845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court 
Richland County, Case No. 2017 CA 0025 4

severed the judicial-fact-finding portions of R.C. §2929.14, holding that “trial courts have 

full discretion to impose a prison sentence within the statutory range and are no longer 

required to make findings or give their reasons for imposing maximum, consecutive, or 

more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See 

also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v. 

Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823. 

{¶15} “Thus, a record after Foster may be silent as to the judicial findings that 

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12. 

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C. 

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13, 

see also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v. 

Firouzmandi supra at ¶ 29. 

{¶16} Thus, post-Foster, “there is no mandate for judicial fact-finding in the 

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong, 

4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts are 

still required to consider the general guidance factors in their sentencing decisions. 

{¶17} There is no requirement in R.C. §2929.12 that the trial court states on the 

record that it has considered the statutory criteria concerning seriousness and recidivism 

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State 

v. Gant, 7th Dist. No. 04 MA 252, 2006–Ohio–1469, at ¶60 (nothing in R.C. 2929.12 or 

the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth 

its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992); State 
Richland County, Case No. 2017 CA 0025 5

v. Hughes, 6th Dist. No. WD–05–024, 2005–Ohio–6405, ¶10 (trial court was not required 

to address each R.C.§ 2929.12 factor individually and make a finding as to whether it was 

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006–Ohio–1342, ¶19 

(“... R.C. 2929.12 does not require specific language or specific findings on the record in 

order to show that the trial court considered the applicable seriousness and recidivism 

factors”). (Citations omitted). 

{¶18} A review of the record shows that, prior to imposing sentence, the trial court 

heard statements and reviewed evidence concerning both the seriousness of Appellant's 

conduct and Appellant's risk of recidivism. The trial court heard evidence that Appellant 

had positive drug screens while he was out on bond, two in August and two in October. 

(T. at 16). The court also heard evidence that appellant failed to report to pretrial release 

after the first day and further failed to make any of the required payments. Id. The trial 

court also considered the fact that a bench warrant had to be issued when Appellant failed 

to show for sentencing. Id. The trial court also considered the charges Appellant had 

pending in Ashland County and had been to prison on two previous cases in 2010 and 

2011. (T. at 17). The trial court stated that Appellant’s actions and criminal history were 

such that a consecutive sentence with the pending Ashland County case would have 

been warranted to protect the public and punish the offender. Id. 

{¶19} We find that the sentence of twelve (12) months was within the statutory 

guidelines for a felony of the fifth degree. R.C. §2929.14(A)(5). Given Appellant's 

extensive criminal record, his continued criminal behavior despite being incarcerated on 

two different occasions, and Appellant's positive drugs screens, and failure to remain in 

contact with pretrial services or appear for sentencing, the trial court was justified in 
Richland County, Case No. 2017 CA 0025 6

imposing the maximum sentence of twelve (12) months for Appellant's conviction for 

Possession of Heroin. Therefore, the trial court did not impose an excessive sentence. 

{¶20} Accordingly, we find that the trial court considered the purposes and 

principles of sentencing [R.C. §2929.11] as well as the factors that the court must consider 

when determining an appropriate sentence. [R.C. §2929.12]. The trial court has no 

obligation to state reasons to support its findings, nor is it required to give a talismanic 

incantation of the words of the statute, provided that the necessary findings can be found 

in the record and are incorporated into the sentencing entry. 

{¶21} Upon a thorough review, we find the record clearly and convincingly 

supports the sentence imposed by the trial court. We find the trial court properly 

considered the purposes and principles of sentencing and the seriousness and recidivism 

factors as required in R.C. §2929.11, as well as the applicable factors set forth in R.C. 

§2929.12, along with all other relevant factors and circumstances. While Appellant may 

disagree with the weight given to these factors by the trial judge, the sentence of twelve 

(12) months was within the statutory sentencing range for a fifth-degree felony, and 

therefore, we have no basis for concluding that it is contrary to law. 

 
Richland County, Case No. 2017 CA 0025 7

{¶22} Appellant’s Assignment of Error is denied. 

{¶23} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Richland County, Ohio, is affirmed. 

By: Wise, John, J. 

Gwin, P. J., and 

Baldwin, J., concur. 

JWW/d 0713