[Cite as State v. Ewert, 2012-Ohio-2671.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJOSHUA EWERT 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. William B. Hoffman, J. 

Hon. John W. Wise, J. 

Case No. CT2012-0002 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. CR2011-0203 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 14, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

D. MICHAEL HADDOX ROBERT D. ESSEX 

PROSECUTING ATTORNEY 604 East Rich Street 

RONALD L. WELCH Columbus, Ohio 43215 

ASSISTANT PROSECUTOR 

27 North Fifth Street 

Zanesville, Ohio 43701 
Muskingum County, Case No. CT2012-0002 2

Wise, J. 

{¶1} Defendant-Appellant Joshua Ewert appeals his sentence and conviction on 

one count of breaking and entering and one count of theft following a guilty plea in the 

Muskingum County Court of Common Pleas. 

{¶2} Plaintiff-Appellee is the State of Ohio. 

STATEMENT OF THE CASE AND FACTS

{¶3} On September 7, 2011, Appellant Joshua Ewert was indicted for one count 

of Breaking and Entering in violation of R.C. 2911.13, a felony of the fifth degree, and 

one count of Theft in violation of R.C. 2913.02, also a felony of the fifth degree. 

{¶4} On December 6, 2011, Appellant pled guilty to both counts. 

{¶5} No joint recommendation or recommendation from the State was made as 

to sentencing other than a request for restitution of $3,810.62. 

{¶6} The State agreed that Counts 1 and 2 merged for purposes of sentencing 

and that Appellant should be sentenced on Count 1. 

{¶7} The trial court accepted Appellant's pleas, denied trial counsel's request for 

a presentence investigation, and proceeded to sentence Appellant to a maximum 

sentence of 12 months on Count One. 

{¶8} Appellant now appeals the sentence, assigning the following error for 

review: 

ASSIGNMENT OF ERROR

{¶9} “I. PURSUANT TO OHIO REVISED CODE 2953.08, THE TRIAL COURT’S 

SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW, WAS AN 
Muskingum County, Case No. CT2012-0002 3

ABUSE OF DISCRETION, AND VIOLATED THE PROPORTIONALITY 

REQUIREMENT OF OHIO SENTENCING LAWS. “ 

I. 

{¶10} In his sole assignment of error, Appellant argues that the trial court erred in 

sentencing. We disagree. 

{¶11} Within this assignment of error, defendant complains that the trial court did 

not properly consider or apply the sentencing factors set forth in R.C. 2929.12 or apply 

the need for rehabilitation under R.C. 2929.11(A). He additionally complains that the 

court failed to consider the proportionality of the sentence. 

{¶12} We begin our analysis with the premise that the trial court has wide 

discretion to sentence an offender within the allowable statutory range permitted for a 

particular degree of offense. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In State 

v. Foster, the Ohio Supreme Court stated that “trial courts have full discretion to impose 

a prison sentence within the statutory range and are no longer required to make findings 

and give reasons for imposing maximum, consecutive or more than the minimum 

sentence.” Id. at paragraph seven of the syllabus. 

{¶13} R.C. 2929.11(B) provides that a felony sentence must be reasonably 

calculated to achieve the two purposes set forth in R.C. 2929.11(A): commensurate with 

and not demeaning to the seriousness of the crime and its impact on the victim and 

consistent with sentences imposed on similarly-situated offenders. The court must also 

consider the seriousness and recidivism factors under R.C. 2929.12. 

{¶14} However, R.C. 2929.11 and 2929.12 do not mandate judicial fact-finding. 

Rather, “[t]he court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42. Thus, “in 
Muskingum County, Case No. CT2012-0002 4

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, citing State v. Lloyd, 11th 

Dist. No. 2006–L–185, 2007-Ohio-3013, ¶ 44. 

{¶15} Subsequent to Foster, in a plurality opinion, the Ohio Supreme Court 

established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 

Ohio St.3d 23, 2008-Ohio-4912. 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.

{¶16} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, the Ohio Supreme 

Court recently held, at paragraph two of the syllabus, that the United States Supreme 

Court's decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, did not 

revive Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) 

and 2929.41(A), which were held unconstitutional in Foster and imposed no fact-finding 

obligation on Ohio's trial courts. Id. at ¶ 39. 

{¶17} The General Assembly recently amended R.C. 2929.14(C)(4) and enacted 

new language requiring fact-finding for consecutive sentences. Am.Sub.H.B. No. 86. 

This legislation became effective September 30, 2011. 

{¶18} The value in the theft count was altered by H.B. 86, but the level of the 

offense was not changed. 
Muskingum County, Case No. CT2012-0002 5

{¶19} In the first step of our analysis, we review whether the sentence imposed is 

contrary to law. 

{¶20} In the case at bar, Appellant was convicted of one count of breaking and 

entering, in violation of R.C. 2911.13 and one count of theft, in violation of R.C. 2913.02, 

both fifth degree felonies. The trial court merged the counts and sentenced Appellant on 

the Breaking and Entering count. 

{¶21} Upon conviction for a felony of the fifth degree, the statutory sentencing 

range is six, seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). 

{¶22} Here, the trial court sentenced Appellant to the maximum sentence of 

twelve months. 

{¶23} Upon review, we find that the trial court's sentencing on the charge 

complies with applicable rules and sentencing statutes. The sentence was within the 

statutory sentencing range. Furthermore, the record reflects that the trial court 

considered the purposes and principles of sentencing and the seriousness and 

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised 

Code and advised Appellant regarding post-release control. We therefore find that the 

sentences are not clearly and convincingly contrary to law. 

{¶24} Having determined that the sentence is not contrary to law we must now 

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v. 

Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave 

careful and substantial deliberation to the relevant statutory considerations. 

{¶25} Where the record lacks sufficient data to justify the sentence, the court may 

well abuse its discretion by imposing that sentence without a suitable explanation. 
Muskingum County, Case No. CT2012-0002 6

Where the record adequately justifies the sentence imposed, the court need not recite 

its reasons. State v. Middleton (Jan. 15, 1987), 8th Dist. No. 51545. 

{¶26} In other words, an appellate court may review the record to determine 

whether the trial court failed to consider the appropriate sentencing factors. State v. 

Firouzmandi, 5th Dist. No. 2006–CA-41, 2006–Ohio–5823 at ¶ 52. 

{¶27} Accordingly, appellate courts can find an “abuse of discretion” where the 

record establishes that a trial judge refused or failed to consider statutory sentencing 

factors. Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342. 

{¶28} An “abuse of discretion” has also been found where a sentence is greatly 

excessive under traditional concepts of justice or is manifestly disproportionate to the 

crime or the defendant. Woosley v. United States (1973), 478 F.2d 139, 147. The 

imposition by a trial judge of a sentence on a mechanical, predetermined or policy basis 

is subject to review. Woosley, supra at 143–145. Where the severity of the sentence 

shocks the judicial conscience or greatly exceeds penalties usually exacted for similar 

offenses or defendants, and the record fails to justify and the trial court fails to explain 

the imposition of the sentence, the appellate court's can reverse the sentence. Woosley, 

supra at 147. This by no means is an exhaustive or exclusive list of the circumstances 

under which an appellate court may find that the trial court abused its discretion in the 

imposition of sentence in a particular case. State v. Firouzmandi, supra.

{¶29} Upon review of the record, we find no evidence the judge acted 

unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on 

impermissible factors, failing to consider pertinent factors, or giving an unreasonable 

amount of weight to any pertinent factor. We find nothing in the record of Appellant's 
Muskingum County, Case No. CT2012-0002 7

case to suggest that his sentence was based on an arbitrary distinction that would 

violate the Due Process Clause of the Fifth Amendment. 

{¶30} The trial court in this case considered Appellant’s extensive criminal 

history, which included the fact that Appellant had just finished serving an eleven (11) 

month sentence three weeks before he committed the instant offense. (T. at 12). 

Appellant also had additional trespass and theft charges pending in municipal court at 

the time of this sentencing. Id. 

{¶31} As to Appellant’s additional challenge regarding the proportionality and 

consistency of the sentence, we note that he did not challenge the proportionality of his 

sentence or the consistency of it as compared to other similar offenders in the court 

below, therefore, he has waived this issue. State v. Santiago, 8th Dist. No. 95516, 

2011–Ohio–3058; State v. Lycans, 8th Dist. No. 93480, 2010–Ohio–2780. 

{¶32} As relevant to this appeal, under R.C. 2929.11(B), a felony sentence must 

be “consistent with sentences imposed for similar crimes committed by similar 

offenders.” “To support a claim that a ‘sentence is disproportionate to sentences 

imposed upon other offenders, a defendant must raise this issue before the trial court 

and present some evidence, however minimal, in order to provide a starting point for 

analysis and to preserve the issue for appeal.’ ” State v. Searles, 8th Dist. No. 96549, 

2011–Ohio–6275, ¶ 25, quoting State v. Edwards, 8th Dist. No. 89181, 2007–Ohio–

6068, ¶ 11. 

{¶33} A felony sentence should be proportionate to the severity of the offense 

committed, so as not to “shock the sense of justice in the community.” State v. Chafin, 

30 Ohio St.2d 13, 17. See also R.C. 2929.11(B). A defendant alleging disproportionality 
Muskingum County, Case No. CT2012-0002 8

in felony sentencing has the burden of producing evidence to “indicate that his sentence 

is directly disproportionate to sentences given to other offenders with similar records 

who have committed these offenses * * *.” State v. Breeden, 8th Dist. No. 84663, 2005–

Ohio–510, ¶ 81. 

{¶34} Not only did Appellant not raise this issue below, Appellant fails to provide 

this Court with any explanation or evidence as to why or how Appellant’s sentence is 

disproportionate. 

{¶35} While not specifically raised as error, Appellant cites to the trial court’s 

failure to order a pre-sentence investigation in this case before imposing his sentence. 

We note that Crim.R. 32.2. provides that “[i]n felony cases the court shall, and in 

misdemeanor cases the court may, order a presentence investigation and report before 

imposing community control sanctions or granting probation.” Therefore, unless a 

sentencing court is imposing community control or granting probation in a felony case, 

there is no requirement that a court order a pre-sentence investigation. State v. Cyrus 

(1992), 63 Ohio St.3d 164. 

 
Muskingum County, Case No. CT2012-0002 9

{¶36} Appellant’s sole Assignment of Error is overruled. 

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

Muskingum County, Ohio, is affirmed. 

By: Wise, J. 

Gwin, P. J., and 

Hoffman, J., concur. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES 

JWW/d 0606 
Muskingum County, Case No. CT2012-0002 10

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JOSHUA EWERT : 

 : 

 Defendant-Appellant : Case No. CT2012-0002 

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

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

 Costs assessed to Appellant. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES