[Cite as State v. Schraishuhn, 2011-Ohio-3805.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJASON SCHRAISHUHN 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W. Wise, J. 

: Hon. Julie A. Edwards, J. 

: 

: 

: Case No. 2010-CA-00135 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County 

Court of Common Pleas, Case No. 

09CR541 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: July 28, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

EARL L. FROST ANDREW SANDERSON 

Assistant Prosecuting Attorney 21 West Church Street 

20 S. Second St., 4th Floor Suite 201 

Newark, OH 43055 Newark, OH 43055 
[Cite as State v. Schraishuhn, 2011-Ohio-3805.]

Gwin, P.J. 

{¶1} Defendant-appellant Jason Schraishuhn appeals from his convictions and 

sentences in the Licking County Court of Common Pleas on one count of Possession of 

Heroin, a felony of the fifth degree in violation of R.C. 2925.11(A), Possession of Drugs, 

a misdemeanor of the second degree in violation of R.C. 2925.11(A), and Possession of 

marijuana a minor misdemeanor in violation of R.C. 2925.11(A). Plaintiff-appellee is the 

State of Ohio. 

 STATEMENT OF THE FACTS AND CASE 

{¶2} On April 30, 2009 appellant was arrested after officer’s observed him 

attempting to hide a bag of white pills during a traffic stop. (Bill of Particulars, filed 

February 26, 2010; Sent. T. at 14). Appellant voluntarily provided a urine sample at the 

officer’s request. (Id.) Subsequent testing of the pills confirmed that they were Vicodin, a 

Schedule III Controlled Substance. The appellant’s urine tested positive for marijuana 

and heroin, both Schedule I Controlled Substances. 

{¶3} On October 30, 2009 appellant was indicted for one count of Possession 

of Heroin, a felony of the fifth degree in violation of R.C. 2925.11(A), Possession of 

Drugs, a misdemeanor of the first degree in violation of R.C. 2925.11(A), and 

Possession of marijuana a minor misdemeanor in violation of R.C. 2925.11(A). 

{¶4} On November 10, 2009, a warrant for the arrest of appellant was issued 

by the trial court. On February 23, 2010, appellant appeared before the trial court and 

entered a plea of Not Guilty to each of the charges. 

{¶5} On May 6, 2010 appellant filed a motion to dismiss contending that the 

charges all relate back to April 30, 2009 and therefore the charges set forth in the 
Licking County, Case No. 2010-CA-00135 3 

indictment issued October 30, 2009 should have been tried within 270 days from the 

date of his arrest on April 30, 2009 as required by R.C. 2945.71(2). On May 10, 2010, 

an oral hearing was held on appellant’s motion to dismiss. The trial court denied 

appellant’s motion by judgment entry filed May 11, 2010. 

{¶6} On July 16, 2010, appellant appeared before the trial court. The State 

amended Count 2 of the Indictment the possession of Vicodin to a misdemeanor of the 

second degree.1

 Thereafter, appellant entered pleas of No Contest to each of the 

charges. 

{¶7} After receiving a pre-sentence investigation report, the trial court 

sentenced appellant to twelve months on Count 1. Appellant was further sentenced to a 

term of ninety days on Count 2 to be run concurrent with Count 1. Appellant was notified 

concerning post-release control. Finally, appellant’s driver’s license was suspended for 

six months. 

{¶8} It is from the May 11, 2010 judgment entry denying his motion to dismiss 

and the July 16, 2010 sentencing entry that appellant has appealed raising two 

assignments of error: 

{¶9} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING 

THE MOTION TO DISMISS FILED BY THE DEFENDANT-APPELLANT HEREIN. 

{¶10} “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN 

SENTENCING THE DEFENDANT-APPELLANT TO THE MAXIMUM SENTENCE 

HEREIN.” 

 1

 This amendment was made to reflect the fact that the Bill of Particulars listed Count 2 as a 

misdemeanor of the second degree in spite of the fact that the Indictment listed the offense as a 

misdemeanor of the first degree. (Sent. T. July 16, 2010 at 8-9). 
Licking County, Case No. 2010-CA-00135 4 

I. 

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

and violated his statutory and constitutional rights by denying his speedy trial motion to 

dismiss filed May 6, 2010. We disagree. 

{¶12} A person charged with a felony “[s]hall be brought to trial within two 

hundred seventy days after the person’s arrest.” R.C. 2945.71(2). “Upon motion made 

at or prior to the commencement of trial, a person charged with an offense shall be 

discharged if he is not brought to trial within the time required by sections 2945.71 and 

2945.72 of the Revised Code.” R.C. 2945.73(B). “[S]uch discharge is a bar to any 

further criminal proceedings against him based on the same conduct.” R.C. 2945.73(D). 

{¶13} A speedy-trial claim involves a mixed question of law and fact. State v. 

Larkin, Richland App. No.2004-CA-103, 2005-Ohio-3122. As an appellate court, we 

must accept as true any facts found by the trial court and supported by competent, 

credible evidence. With regard to the legal issues, however, we apply a de novo 

standard of review and thus freely review the trial court’s application of the law to the 

facts. Id. 

{¶14} When reviewing the legal issues presented in a speedy-trial claim, we 

must strictly construe the relevant statutes against the state. In Brecksville v. Cook

(1996), 75 Ohio St.3d 53, 57, 661 N.E.2d 706, 709, the court reiterated its prior 

admonition “to strictly construe the speedy trial statutes against the state.” 

{¶15} The Ohio Supreme Court has recently held, “a charge is not pending for 

purposes of calculating speedy-trial time pursuant to R.C. 2945.71 until the accused has 

been formally charged by a criminal complaint or indictment, is held pending the filing of 
Licking County, Case No. 2010-CA-00135 5 

charges, or is released on bail or recognizance.” State v. Azbell, 112 Ohio St. 3d 300, 

2006-Ohio-6552, 859 N.E. 2d 532, at ¶ 1. 

{¶16} In Azbell, the Court noted, “In this case, although Azbell was arrested in 

May 2003, she was not ‘held to answer’ because she was immediately released after 

being photographed and fingerprinted at the police station. At the time of her arrest, she 

was not charged with any offense. Thus, she was never subject to ‘actual restraints 

imposed by arrest and holding to answer a criminal charge.’ [United States v.]Marion,

404 U.S. at 320, 92 S.Ct. 455, 30 L.Ed.2d 468. Her liberty was not in jeopardy, one of 

the overriding concerns of speedy-trial violations. See United States v. Loud Hawk

(1986), 474 U.S. 302, 310-312, 106 S.Ct. 648, 88 L.Ed.2d 640. Because no charge was 

outstanding and she was not held pending the filing of charges or released on bail or 

recognizance, Azbell did not become a ‘person against whom a charge of felony is 

pending’ until she was arrested on the indictment in April 16, 2004. 

{¶17} “Therefore, we hold that for purposes of calculating speedy-trial time 

pursuant to R.C. 2945.71I, a charge is not pending until the accused has been formally 

charged by a criminal complaint or indictment, is held pending the filing of charges, or is 

released on bail or recognizance.” Id. at ¶ 21-22. 

{¶18} In the case at bar, appellant acknowledged that he never appeared in 

court or posted a bond as a result of his contact with law enforcement on April 30, 2009. 

(T. May 10, 2010 at 9-10). Appellant was not photographed, fingerprinted nor placed 

into a holding cell. (Id. at 9). Appellant conceded that the total time he spent with law 

enforcement that day from start to finish was approximately two hours (Id. at 10). 
Licking County, Case No. 2010-CA-00135 6 

{¶19} Accordingly, because no charge was outstanding and he was not held 

pending the filing of new charges or released on bail or recognizance while awaiting the 

filing of charges appellant did not become a “person against whom a charge of felony is 

pending” until he was arrested on the indictment February 13, 2010. Azbell, supra at ¶ 

20. 

{¶20} Appellant entered his plea on July 16, 2010. Accordingly, 154 days had 

elapsed for speedy trial purposes2

. Because appellant was held in custody from 

February 13, 2010 we apply the triple-count provisions of R.C. 2945.71(E). Accordingly, 

the last date for trial would have been May 14, 2010. 

{¶21} However, the record in the case at bar reveals that by Judgment Entry 

filed April 29, 2010, the trial court scheduled appellant’s jury trial for May 10, 2010. On 

May 6, 2010 appellant filed his motion to dismiss. Also on that date appellant filed 

“Defendant’s Motion to Cancel Jury Trial and Set for Further Hearing.” In that pleading 

appellant admitted that the ruling on his motion to dismiss would result in either a 

dismissal of the indictment if successful or a plea to the indictment if not successful. 

{¶22} In this case appellant’s May 6, 2010 motion specifically requested that the 

trial court cancel his jury trial. At the time that request was made, appellant’s jury trial 

was scheduled to commence on May 10, 2010 which was within the statutorily 

mandated time period. Thus, it was appellant’s own actions that prevented his case 

from commencing on or before May 14, 2010. 

{¶23} Accordingly, we find that appellant’s right to a speedy trial pursuant to 

R.C. 2945.71 was not violated. 

 2

 Appellant admitted he was arrested upon the warrant on February 13, 2010. (T. May 10, 2010 at 

10). 
Licking County, Case No. 2010-CA-00135 7 

{¶24} Appellant, however, has further argued his constitutional right to a speedy 

trial under the Sixth Amendment to the United States Constitution and Article I, Section 

10 of the Ohio Constitution, and, although not specifically cited in his brief, we believe 

appellant to be arguing further that his right to due process under the Fifth Amendment 

to the United States Constitution and Article I, Section 16 of the Ohio Constitution have 

been abrogated by the delay between his initial arrest and eventual indictment. 

{¶25} The Sixth Amendment to the United States Constitution provides “[i]n all 

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * 

*.” This provision is applicable to state courts through the Fourteenth Amendment. 

Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. The Ohio 

Constitution provides similar protection. 

{¶26} “Section 10, Article I of the Ohio Constitution guarantees to the party 

accused in any court ‘a speedy public trial by an impartial jury.’ ‘Throughout the long 

history of litigation involving application of the speedy trial statutes, this court has 

repeatedly announced that the trial courts are to strictly enforce the legislative mandates 

evident in these statutes. This court’s announced position of strict enforcement has 

been grounded in the conclusion that the speedy trial statutes implement the 

constitutional guarantee of a public speedy trial.’ “(Citations omitted.). State v. Pachay

(1980), 64 Ohio St.2d 218, 221, 416 N.E.2d 589, 591. 

{¶27} In State v. Meeker (1971), 26 Ohio St.2d 9, 268 N.E.2d 589, paragraph 

three of the syllabus, the Ohio Supreme Court held that “[t]he constitutional guarantees 

of a speedy trial are applicable to unjustifiable delays in commencing prosecution, as 

well as to unjustifiable delays after indictment.” Subsequent to the Ohio Supreme 
Licking County, Case No. 2010-CA-00135 8 

Court’s decision in Meeker, the United States Supreme Court ruled that the speedy trial 

guarantee under the Sixth Amendment has no applicability to pre-indictment delays. 

United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. In light of 

the Marion decision and its progeny, the Ohio Supreme Court held in State v. Luck

(1984), 15 Ohio St.3d 150, 153, 472 N.E.2d 1097, that the Court’s “holding in Meeker is 

viable only insofar as its application is limited to cases that are factually similar to it.” 

{¶28} In State v. Selvage (1997), 80 Ohio St.3d 465, 687 N.E.2d 433, 1997-

Ohio-287, the Ohio Supreme Court revisited the issue of whether an individual’s 

constitutional right to a speedy trial has been violated by a delay in prosecution. In 

Selvage, the Ohio Supreme Court reaffirmed its holding in Meeker, and noted that the 

speedy trial guarantee does not apply prior to indictment when the defendant has not 

been the subject of “official accusation.” Id. at 466, 687 N.E.2d 433. 

{¶29} If a defendant is the subject of official accusation prior to indictment, the 

four-part test applicable to alleged constitutional speedy trial violations set forth in 

Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 governs. State v. 

Flickinger (Jan. 19, 1999), Athens App. No. 98 CA 09 at n. 1. When the defendant is not 

the subject of official accusation, however, a delay in commencing prosecution does not 

implicate the defendant’s constitutional speedy trial rights. United States v. Marion

(1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; State v. Luck (1984), 15 Ohio St.3d 

150, 153, 472 N.E.2d 1097, 1102. 

{¶30} The Ohio Supreme Court has espoused a similar view, “in State v. 

Broughton (1991), 62 Ohio St.3d 253, 581 N.E.2d 541, we considered a case in which a 

defendant was indicted on November 17, 1988, the indictment was dismissed as 
Licking County, Case No. 2010-CA-00135 9 

defective on July 18, 1989, and the defendant was later indicted on October 18, 1989. 

Id. at 254, 581 N.E.2d 541. This court held, ‘For purposes of computing how much time 

has run against the state under R.C. 2945.71 et seq., the time period between the 

dismissal without prejudice of an original indictment and the filing of a subsequent 

indictment, premised upon the same facts as alleged in the original indictment, shall not 

be counted unless the defendant is held in jail or released on bail pursuant to Crim.R. 

12(I).’ Id., paragraph one of the syllabus.” State v. Azbell (2006), 112 Ohio St.3d 300, 

859 N.E.2d 532, 2006-Ohio-6552 at ¶ 17. (Emphasis added). 

{¶31} When a defendant asserts a pre-indictment delay violating his due 

process rights, prejudice may not be presumed. United States v. Crouch (C.A.5, 1996), 

84 F.3d 1497, 1514-1515. The notion that prejudice may be presumed from a lengthy 

delay arises in the context of the four-part balancing test used in determining whether a 

post-indictment or post-accusation delay has deprived a defendant of his Sixth 

Amendment right to a speedy trial. Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 

2182, 33 L.Ed.2d 101. The Barker four-part test, and the concept of presumptive 

prejudice, applies only to post-indictment or post-accusation delays that implicate the 

Sixth Amendment right to a speedy trial, and has no application to pre-indictment 

delays. See, State v. Metz (1998), Washington App. No. 96CA48, (Citation omitted); 

State v. Harrell (Dec. 29, 1998), Delaware App. No. 98CAA06029. 

{¶32} The Ohio Supreme Court held that a delay in the commencement of 

prosecution by the state would be found unjustified when it is done in an attempt to gain 

a tactical advantage over the defendant, or when the state “through negligence or error 

in judgment, effectively ceases the active investigation of a case, but later decides to 
Licking County, Case No. 2010-CA-00135 10 

commence prosecution upon the same evidence that was available to it at the time that 

its active investigation was ceased.” Luck, 15 Ohio St.3d at 158, 472 N.E.2d 1097. The 

Court also held that the length of delay would normally be a key factor in this 

determination. Id. 

{¶33} In the case at bar, appellant has failed to demonstrate how the delay has 

prejudiced him in the preparation of his case. Because appellant has not provided the 

Court with a sufficient explanation of how his defense has been affected negatively by 

the pre-indictment delay, the Court cannot find that appellant suffered substantial 

prejudice. 

{¶34} As the court stated in State v. Glasper (Feb. 2, 1997), Montgomery App. 

No. 15740, “The defendant will not satisfy his or her burden of proof by merely generally 

alleging the possible prejudice inherent in any delay, for example, that memories have 

faded, witnesses may be inaccessible, and evidence may be lost. The defendant must 

identify the specific prejudice suffered, and that prejudice must be substantial, for 

instance, that important taped witness interviews were destroyed or that key witnesses 

have died.” In State v. Flickinger, supra the court noted, “a defendant must provide 

concrete proof that he will suffer actual prejudice at trial as a result of the government’s 

delay in indicting the defendant. See, e.g., Crouch, 84 F.3d at 1515 (stating that vague 

assertions of faded memories are insufficient to establish actual prejudice; the 

defendant must state which witness is unable to fully recount the details of the crime 

and how the witness’ lapsed memory will prejudice the defense); United States v. 

Beszborn (C.A.5, 1994) 21 F.3d 62, 67, certiorari denied sub nom, Westmoreland v. 

United States, 513 U.S. 934, 115 S.Ct. 330, 130 L.Ed.2d 288 (stating that vague 
Licking County, Case No. 2010-CA-00135 11 

assertions of faded memories are insufficient to establish actual prejudice); United 

States v. Stierwalt (C.A.8, 1994), 16 F.3d 282, 285 (stating that assertions of faded 

memories are insufficient to establish actual prejudice when the defendant fails to 

specify how witness’ lapsed memory will harm his defense); United States v. Harrison

(S.D.N.Y.1991), 764 F.Supp. 29, 32 (stating that assertion of faded memories is 

insufficient to establish actual prejudice); United States v. Greer (D.Vt.1997), 956 

F.Supp. 525, 528 (stating that a defendant must present concrete proof of actual 

prejudice and not mere speculation of actual prejudice)”. State v. Flickinger (Jan. 19, 

1999), Athens App. No. 98 CA 09A. 

{¶35} We find, therefore, that appellant has failed to establish that the delay in 

bringing the indictment caused him actual prejudice. 

{¶36} For the forgoing reasons, appellant’s First Assignment of Error is 

overruled. 

II. 

{¶37} Appellant’s Second Assignment of Error relates to the propriety of the trial 

court’s sentencing appellant upon his no contest plea to twelve months for Possession 

of Heroin, a felony of the fifth degree. Specifically, appellant challenges the imposition of 

the maximum sentence on the basis that the sentences were unduly harsh and not 

commensurate with his conduct. He further contends that the trial court failed to set 

forth its reasons for imposing the maximum sentence. We disagree. 

{¶38} At the outset, we note there is no constitutional right to an appellate review 

of a criminal sentence. Moffitt v. Ross (1974), 417 U.S. 600, 610-11, 94 S.Ct. 2437, 

2444; McKane v. Durston (1894), 152 U.S. 684, 687, 14 S. Ct. 913. 917; State v. Smith
Licking County, Case No. 2010-CA-00135 12 

(1997), 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668; State v. Firouzmandi, 5th

Dist No. 2006-CA-41, 2006-Ohio-5823. An individual has no substantive right to a 

particular sentence within the range authorized by statute. Gardner v. Florida (1977), 

430 U.S. 349, 358, 97 S.Ct. 1197, 1204-1205; State v. Goggans, Delaware App. No. 

2006-CA-07-0051, 2007-Ohio-1433 at ¶ 28. In other words “[t]he sentence being within 

the limits set by the statute, its severity would not be grounds for relief here even on 

direct review of the conviction...It is not the duration or severity of this sentence that 

renders it constitutionally invalid....” Townsend v. Burke (1948), 334 U.S. 736, 741, 68 

S.Ct. 1252, 1255. 

{¶39} In a plurality opinion, the Supreme Court of Ohio established a two-step 

procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124. 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. 

{¶40} As a plurality opinion, Kalish is of limited precedential value. See Kraly v. 

Vannewkirk (1994), 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (characterizing prior case 

as "of questionable precedential value inasmuch as it was a plurality opinion which 

failed to receive the requisite support of four justices of this court in order to constitute 

controlling law"). See, State v. Franklin (2009), 182 Ohio App.3d 410, 912 N.E.2d 1197, 

2009-Ohio-2664 at ¶ 8. "Whether Kalish actually clarifies the issue is open to debate. 

The opinion carries no syllabus and only three justices concurred in the decision. A 
Licking County, Case No. 2010-CA-00135 13 

fourth concurred in judgment only and three justices dissented." State v. Ross, 4th Dist. 

No. 08CA872, 2009-Ohio-877, at FN 2; State v. Welch, Washington App. No. 08CA29, 

2009-Ohio-2655 at ¶ 6. 

{¶41} Nevertheless, until the Supreme Court of Ohio provides further guidance 

on the issue, we will continue to apply Kalish to appeals involving felony sentencing.

State v. Welch, supra; State v. Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264 at n. 

2; State v. Ringler, Ashland App. No. 09-COA-008, 2009-Ohio-6280 at ¶ 20. 

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

contrary to law. In the case at bar, appellant was convicted of one felony of the fifth 

degree. Upon conviction for a felony of the fifth degree, the potential sentence that the 

trial court can impose is six, seven, eight, nine, ten, eleven or twelve months. R.C. 

2929.14(A) (5). In the case at bar, appellant was sentenced to twelve months. 

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

complies with applicable rules and sentencing statutes. The sentences were 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. Therefore, the sentence is 

not clearly and convincingly contrary to law. 

{¶44} 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. 
Licking County, Case No. 2010-CA-00135 14 

{¶45} In Kalish, the court discussed the affect of the Foster decision on felony 

sentencing. The court stated that, in Foster, the Ohio Supreme Court 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, 

Licking App. No. 2006-CA-41, 2006-Ohio-5823. 

{¶46} “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. 

{¶47} 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. 

{¶48} 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 (1995), 101 Ohio App.3d 428, 431; 

State v. Gant, Mahoning App. No. 04 MA 252, 2006-Ohio-1469, at ¶ 60 (nothing in R.C. 
Licking County, Case No. 2010-CA-00135 15 

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 (1992), 63 Ohio St.3d 164, 166; State v. 

Hughes, Wood App. No. WD-05-024, 2005-Ohio-6405, at ¶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 at ¶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). 

{¶49} 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. 

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. 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-

CA41, 2006-Ohio-5823 at ¶ 52. 

{¶50} 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. 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 
Licking County, Case No. 2010-CA-00135 16 

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 courts 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. 

{¶51} In the case at bar, the court had the benefit of a pre-sentence 

investigation report. We also note that we do not know the specific contents of the presentence investigation report as appellant did not make them a part of the record. In 

State v. Untied (March 5, 1998), Muskingum App. No. CT97-0018, we addressed the 

issue of failure to include the pre-sentence investigation report and stated: 

{¶52} “Appellate review contemplates that the entire record be presented. App. 

R. 9. When portions of the transcript necessary to resolve issues are not part of the 

record, we must presume regularity in the trial court proceedings and affirm. Knapp v. 

Edwards Laboratories (1980), 61 Ohio St. 2d 197, 400 N.E. 2d 384. The pre-sentence 

investigation report could have been submitted “under seal” for our review. 

{¶53} “Without the cited information and given the trial court (sic) findings on 

the record, we cannot say appellant’s sentence was against the manifest weight of the 

evidence, or ‘contrary to law’.” Id. at 7. See also, State v. Mills (September 25, 2003), 

5th Dist. No. 03-COA-001 at paragraph, 13-15. 

{¶54} There is no evidence in the record that 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 
Licking County, Case No. 2010-CA-00135 17 

to any pertinent factor. We find nothing in the record of appellant's case to suggest that 

his sentence was based on an arbitrary distinction that would violate the Due Process 

Clause of the Fifth Amendment. 

{¶55} Accordingly, we herein reject appellant's claim that the trial court was 

required to make pre-Foster findings in sentencing appellant. 

{¶56} Appellant’s Second Assignment of Error is overruled. 

{¶57} For the forgoing reasons, the judgment of the Licking County Court of 

Common Pleas is affirmed. 

By Gwin, P.J., 

Wise, J., and 

Edwards, J., concur 

 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JOHN W. WISE 

 _________________________________ 

 HON. JULIE A. EDWARDS 

 

WSG:clw 0629 
[Cite as State v. Schraishuhn, 2011-Ohio-3805.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JASON SCHRAISHUHN : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2010-CA-00135 

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

judgment of the Licking County Court of Common Pleas is affirmed. Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JOHN W. WISE 

 _________________________________ 

 HON. JULIE A. EDWARDS