[Cite as State v. Jordan, 2010-Ohio-3456.]

 STATE OF OHIO, COLUMBIANA COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

STATE OF OHIO, ) 

 ) CASE NO. 09 CO 31 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) OPINION 

 ) 

CHANCELOR JORDAN, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

Court, Case No. 07 CR 319. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Robert L. Herron 

Prosecuting Attorney 

Attorney John Gamble 

Asst. Prosecuting Attorney 

105 S. Market Street 

Lisbon, OH 44432 

For Defendant-Appellant: Attorney Scott Essad 

5815 Market Street, Suite 1 

Youngstown, OH 44512 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Dated: July 8, 2010 
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DeGenaro, J. 

{¶1} This timely appeal comes for consideration upon the record in the trial court 

and the parties' briefs. Defendant-Appellant, Chancelor A. Jordan, appeals the 

September 3, 2009 decision of the Columbiana County Court of Common Pleas that 

convicted him of one count of drug trafficking and three counts of drug possession and 

sentenced him accordingly. On appeal, Jordan argues that the imposition of maximum, 

consecutive sentences by the trial court was erroneous. Upon review, Jordan's 

arguments are meritless. The sentence chosen was not clearly and convincingly contrary 

to law or an abuse of discretion. Accordingly, we affirm the judgment of the trial court. 

Facts and Procedural History 

{¶2} On October 26, 2007, a Columbiana County grand jury secretly indicted 

Jordan on six counts: (1) possession of cocaine, in violation of R.C. 2925.11(A), a fifthdegree felony; (2) trafficking in cocaine, a violation of R.C. 2925.03(A)(1), a fifth-degree 

felony; (3) possession of crack cocaine where the amount involved equals or exceeds 25 

grams but is less than 100 grams, in violation of R.C. 2925.11(A), a first-degree felony; 

(4) possession of cocaine where the amount involved equals or exceeds 25 grams but is 

less than 100 grams, in violation of R.C. 2925.11(A), a third-degree felony; (5) possession 

of methamphetamine or methylendioxymethamphetamine (MDMA) in violation of R.C. 

2925.11(A), a fifth-degree felony; and (6) possession of heroin where the amount 

involved exceeds 10 unit doses but is less than 50 unit doses, in violation of R.C. 

2929.11(A), a fourth-degree felony. Attached to Counts Three, Four and Five was a 

forfeiture specification for $610 and a set of digital scales. These charges stemmed from 

several incidents that occurred between 2003 and 2007. 

{¶3} Jordan was arraigned, pled not guilty to the counts in the indictment and 

counsel was appointed. Upon Jordan's request, the State filed a bill of particulars. 

Subsequently, Jordan reached a Crim.R. 11 agreement with the State, whereby he 

agreed to plead guilty to Counts One, Two, Five and Six, and in exchange the State 

agreed to dismiss Counts Three and Four. The written plea agreement indicated that at 

the time of sentencing, the State would recommend maximum consecutive sentences 
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and oppose community control sanctions. 

{¶4} The court provided written information to Jordan regarding the charges he 

faced, the maximum penalties and the effect of a guilty plea. Jordan filed a written 

response to that document. During a hearing held on September 2, 2009, the trial court 

engaged in a Crim.R. 11 plea colloquy with Jordan, after which the court accepted 

Jordan's guilty plea as knowing, voluntary and intelligent. 

{¶5} Per Jordan's request, the trial court proceeded immediately to sentencing. 

The prosecutor advocated Jordan receive maximum, consecutive sentences. Defense 

counsel argued for a more lenient sentence and made a statement in mitigation of 

sentencing. Jordan himself made a statement in mitigation of sentencing. 

{¶6} The trial court ultimately pronounced the following sentence: 

{¶7} "[I]n relation to the specification of count -- attached to count five; the six 

hundred and ten dollars is ordered forfeited. The digital scales is [sic] ordered forfeited to 

the State of Ohio, to be disposed of as provided by law. 

{¶8} "In relation to count's one, two, and five of the indictment the Defendant is 

sentenced to twelve months of [sic] each of those counts. On count six, the Defendant is 

sentenced to eighteen months on that count. Those are ordered served consecutive with 

each other." 

{¶9} The court also gave Jordan credit for time served, and ordered Jordan's 

driver's license suspended on each of the counts for a period of six months, to be served 

concurrently. The court notified Jordan about a three-year period of discretionary postrelease control following his release from prison. The sentencing decision was 

memorialized in a September 3, 2009 judgment entry. 

Sentencing 

{¶10} In his sole assignment of error, Jordan asserts: 

{¶11} "The trial court's sentencing of Appellant Chancelor A. Jordan was clearly 

and convincingly contrary to law as well as an abuse of discretion." 

{¶12} When reviewing a felony sentence, an appellate court first examines the 

sentence to ensure the sentencing court clearly and convincingly complied with the 
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applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at 

¶4. A sentence is clearly and convincingly contrary to law when the sentencing court 

does not comply with all applicable rules and statutes in imposing the sentence. State v. 

Gratz, 7th Dist. No. 08-MA-101, 2009-Ohio-695, at ¶8, citing Kalish at ¶13-14. If this 

inquiry is satisfied, an appellate court then reviews the trial court's sentencing decision for 

abuse of discretion. Kalish at ¶17, 19-20. An abuse of discretion means more than an 

error of law or judgment; but rather implies that the court's attitude is unreasonable, 

arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 

169, 404 N.E.2d 144. Thus, in the felony sentencing context, "[a]n abuse of discretion 

can be found if the sentencing court unreasonably or arbitrarily weighs the factors in R.C. 

2929.11 and R.C. 2929.12." State v. Heverly, 7th Dist. No. 09 CO 4, 2010-Ohio-1005, at 

¶34. 

{¶13} Initially, the State argues that Jordan has forfeited all challenges to his 

sentence because he failed to object at the time of sentencing. The State cites State v.

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, in support of this 

argument. However, Payne involved the narrow issue of forfeiture of an alleged Blakely

error on appeal where the defendant failed to object to his sentence on such grounds at a 

sentencing proceeding that occurred after the announcement of Blakely. Payne at ¶21 

(concerning alleged errors pursuant to Blakely v. Washington (2004), 542 U.S. 296, 124 

S.Ct. 2531, 159 L.Ed.2d 403). This is not the issue here, therefore Payne does not apply. 

 Thus, we review Jordan's sentence under the analysis set forth in Kalish.

{¶14} Turning to the first prong of the inquiry, we must determine whether the 

sentence is clearly and convincingly contrary to law. Jordan was convicted of three fifthdegree felonies and one fourth-degree felony. Fifth degree felonies carry potential prison 

terms ranging from six to twelve months. R.C. 2929.14(A)(5). Fourth degree felonies 

carry potential prison terms ranging from six to eighteen months. R.C. 2929.14(A)(4). 

Thus, the trial court could have sentenced Jordan to a term ranging from six months to 

four and a half years. The court chose four and a half years, which is within the 

sentencing range. The trial court properly notified Jordan of post-release control pursuant 
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to R.C. 2967.28. Further, the trial court afforded Jordan his allocution rights pursuant to 

Crim.R. 32(A)(1). 

{¶15} Jordan presents two specific arguments as to why his sentence is contrary 

to law, the first of which relates to the trial court's failure to make findings before imposing 

consecutive sentences pursuant to R.C. 2929.14(E)(4). Jordan acknowledges that State 

v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 held R.C. 2929.12(E)(4) 

unconstitutional. However, Jordan asserts that a recent United States Supreme Court 

decision, Oregon v. Ice (2009), --- U.S. ---,129 S.Ct. 711, 172 L.Ed.2d 517, abrogates that 

portion of Foster.

1 

{¶16} Jordan misconstrues the effect Ice has on Foster. The Ohio Supreme Court 

excised the unconstitutional provisions requiring judicial fact-finding from the sentencing 

statutes, including R.C. 2929.14(E)(4) and R.C. 2929.41(A). Id at ¶97. As a result, the 

Court ultimately held that, "[t]rial 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." Id. 

at paragraph seven of the syllabus. 

{¶17} In Ice, the United States Supreme Court examined an Oregon statute that 

required judges to find certain facts before imposing consecutive rather than concurrent 

sentences. Id. at 714-20. The Supreme Court upheld the constitutionality of the Oregon 

statute and held it did not violate the Sixth Amendment concerns at issue in Apprendi and 

Blakely. Id. at 719. The Court concluded that, in light of historical practices and the right 

of states to administer their criminal justice systems, the Sixth Amendment did not 

prevent states from allowing judges to make any finding of facts necessary to impose 

consecutive, rather than concurrent, sentences. Id. at 716-20. 

{¶18} Subsequent to Ice, the defendant in State v. Elmore, 122 Ohio St.3d 472, 

2009-Ohio-3478, 912 N.E.2d 582, argued that because Foster excised R.C. 

2929.14(E)(4) and 2929.41(A), there was neither a statutory nor a constitutional basis to 

 

1

 The Ohio Supreme Court has accepted jurisdiction to decide this exact issue and that case is currently 

pending before the court. State v. Hodge, Case No. 2009-1997. 
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permit the imposition of consecutive sentences. The Ohio Supreme Court declined the 

state's post oral argument attempt to argue Ice and rejected Elmore's assigned error 

relying exclusively on prior Ohio precedent: 

{¶19} "We addressed this issue in State v. Bates, 118 Ohio St.3d 174, 2008-Ohio1983, 887 N.E.2d 328. In Bates, we considered whether a trial court has the authority 

after Foster to order a prison sentence that it imposes to be served consecutively to a 

prison sentence already imposed by another Ohio court. Id. at ¶11. We stated that before 

Foster, R.C. 2929.14(E)(4) and 2929.41(A) did not permit a trial court to order a prison 

sentence to be served consecutively to a prison sentence previously imposed on the 

offender by a different court. Id. at ¶14. However, Foster severed and excised R.C. 

2929.14(E)(4) and 2929.41(A) in their entirety. Thereafter, no statute remained to 

establish presumptions for concurrent and consecutive sentences. Id. at ¶18. 

{¶20} "We held in Bates that in the absence of statutory authority, 'the commonlaw presumptions are reinstated.' Bates at ¶18, citing 73 American Jurisprudence 2d 

(2007), Statutes, Section 271 (the repeal of a statute that abrogates the common law 

operates to reinstate the common-law rule). We also stated that ' "in the absence of [a] 

statute [stating otherwise], it is a matter solely within the discretion of the sentencing court 

as to whether sentences shall run consecutively or concurrently." ' Id. at ¶13, quoting 

Stewart v. Maxwell (1963), 174 Ohio St. 180, 181, 22 O.O.2d 116, 187 N.E.2d 888. See 

also State ex rel. Stratton v. Maxwell (1963), 175 Ohio St. 65, 67, 23 O.O.2d 357, 191 

N.E.2d 549. ('It is clear that a court has the power to impose consecutive sentences'); 

Henderson v. James (1895), 52 Ohio St. 242, 254-255, 39 N.E. 805 ('this court, with the 

courts of most of the other states, as well as England, has sustained cumulative 

sentences without the aid of a statute'). In Bates, we held that after Foster, a 'trial court 

now has the discretion and inherent authority to determine whether a prison sentence 

within the statutory range shall run consecutively or concurrently.' Bates at ¶19. 

{¶21} "Since Foster was decided, the United States Supreme Court has 

announced Oregon v. Ice (2009), --- U.S. ----, 129 S.Ct. 711, 714, 172 L.Ed.2d 517, a 

case that held that a jury determination of facts to impose consecutive rather than 
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concurrent sentences was not necessary if the defendant was convicted of multiple 

offenses, each involving discrete sentencing prescriptions. The jury historically played no 

role in a decision to impose sentences consecutively or concurrently. The choice rested 

exclusively with the judge, and thus the Oregon statutes did not erode any traditional 

function of the jury. Further, the state had sovereign authority over the administration of 

its criminal justice system, and there was no compelling reason to diminish the state's role 

by curbing the state's limitation on the discretion of judges in imposing consecutive or 

concurrent sentences. 

{¶22} "Foster did not prevent the trial court from imposing consecutive sentences; 

it merely took away a judge's duty to make findings before doing so. The trial court thus 

had authority to impose consecutive sentences on Elmore." Elmore at ¶32-35. Thus, the 

Ohio Supreme Court stopped just short of considering Foster in light of Ice.

2

{¶23} Most appellate districts when faced with this issue have decided that Foster

is still good law that appellate courts must follow unless and until the Ohio Supreme Court 

directly overrules it. See, e.g., State v. Dunaway, 12th Dist. Nos. CA2009-05-141, 

CA2009-06-164, 2010-Ohio-2304, at ¶89-90; State v. Finn, 6th Dist. Nos. L-09-1162, L09-1163, 2010-Ohio-2004, at ¶10; State v. Sabo, 3d Dist. No. 14-09-33, 2010-Ohio-1261, 

at ¶34-42; State v. Potter, 10th Dist. No. 09AP-580, 2010-Ohio-372, at ¶7-8; State v.

Moncoveish, 11th Dist. No. 2008-P-0075, 2009-Ohio-6227, at ¶21; State v. Robinson, 8th 

Dist. No. 92050, 2009-Ohio-3379, at ¶27-29; State v. Starett, 4th Dist. No. 07CA30, 2009-

Ohio-744, at ¶35. 

{¶24} But in State v. Vandriest, 5th Dist. No. 09-COA-032, 2010-Ohio-997, the 

Fifth District held that because the appellant was sentenced after Ice and after the Ohio 

legislature "amended" R.C. 2929.14 that the trial court was required to make statutory 

findings pursuant to R.C. 2929.14(E)(4) before imposing consecutive sentences on 

appellant.Id. at ¶9. 

{¶25} We conclude that, pursuant to Ice and Elmore, Ohio's post-Foster

 

2

"We will not address fully all ramifications of Oregon v. Ice, since neither party sought the opportunity to 

brief this issue before oral argument." Elmore at ¶35. 
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sentencing scheme, which gives a sentencing court the discretion to impose consecutive 

sentences without making findings, passes constitutional muster. Ice at 714-715 (noting 

that it is "undisputed" that states do not violate the Sixth Amendment by continuing the 

common law tradition of entrusting to judges' unfettered discretion the decision whether 

sentences shall be served consecutively or concurrently). Elmore at ¶33 (in the absence 

of statutory authority, common law presumptions are reinstated and the imposition of 

consecutive sentences is within the inherent authority of the court). As such, the trial 

court in this case did not err by failing to make findings pursuant to R.C. 2929.14(E)(4). 

Jordan's argument to the contrary is meritless. 

{¶26} Second, Jordan contends that his sentence was clearly and convincingly 

contrary to law because the trial court failed to consider the overriding purposes of felony 

sentencing contained in R.C. 2929.11 and the seriousness and recidivism factors 

contained in R.C. 2929.12. He argues that the record is silent in this case. However, this 

is not accurate since the trial court did state it had considered R.C. 2929.11 and 2929.12 

in the sentencing entry. Further, even if the record had been completely silent, this court 

has held that reversal is not automatic. State v. Ballard, 7th Dist. No. 08 CO 13, 2009-

Ohio-5472, at ¶71; State v. James, 7th Dist. No. 07 CO 47, 2009-Ohio-4392, at ¶50. 

Rather, a silent record creates a presumption that the trial court considered the factors. 

James at ¶50. This presumption may be rebutted by affirmatively showing the trial court 

failed to consider the proper factors or that the sentence is strikingly inconsistent with 

them, which is not the case here. Id. Based on the foregoing, Jordan's sentence is not 

clearly and convincingly contrary to law. 

{¶27} Thus, we move to the second prong of the analysis which is whether the 

chosen sentence was an abuse of discretion. As an initial matter, the trial court may 

consider a wealth of information when sentencing the defendant, including but not limited 

to: the trial transcript, the defendant's prior arrests, crimes for which the defendant was 

acquitted, and otherwise inadmissible evidence including information that was 

suppressed prior to trial. Ballard at ¶80-81. Further, although R.C. 2929.12 lists many 

specific factors a trial court must consider, the court also has the discretion to consider 
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factors not specifically listed in the statute. See R.C. 2929.12(B). 

{¶28} Regarding the seriousness of Jordan's crime, there is evidence upon which 

the trial court could have reasonably relied to conclude the crime was more serious. 

Jordan was involved in numerous drug-related crimes that took place over a period of 

years. The prosecutor alleged during sentencing that Jordan was "at the top of the food 

chain" in terms of the illegal drug trade in Columbiana County. The prosecutor indicated 

that when Jordan was arrested for a federal warrant he was found in the center of Lisbon 

with six bags of cocaine in his pocket. The prosecutor showed a video of an informant 

purchasing drugs from Jordan, and pointed out the overwhelming evidence of significant 

drug trafficking activity at the residence. Further, the prosecutor noted that several young 

children were in an adjoining room when the drug activity took place. These 

considerations would tend to make the crime more serious. R.C. 2929.12(B). There is 

nothing in the record indicating the crime was less serious pursuant to R.C. 2929.12(C). 

{¶29} With regard to the likelihood of recidivism, see R.C. 2929.12(D) and (E), 

there is no PSI in this case for us to examine, however this is due to Jordan's request to 

proceed immediately to sentencing, and his indication that he would not request that the 

court consider a community control sanction. Looking at the information that emerged 

about Jordan's past at the sentencing hearing, the trial court could have reasonably 

concluded recidivism was more likely. From the sentencing hearing it was adduced that 

Jordan had been convicted of and served time for a federal drug charge in 2003. The 

prosecutor also indicated that Jordan had several convictions in the Cuyahoga County 

Court of Common Pleas in 2003, including failure to comply with the signal of a police 

officer; breaking and entering; possession of drugs; possession of criminal tools; 

tampering with evidence; and trafficking in drugs. The prosecutor also indicated that 

Jordan was charged and arrested in Cuyahoga County in May 2007 for receiving stolen 

property. The prosecutor also alleged that Jordan had a history of criminal behavior since 

he was a juvenile. Defense counsel did not exactly dispute that last allegation, rather 

responding that the discovery packet provided by the prosecutor did not include any 

crimes prior to 2003. 
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{¶30} Jordan did apologize for his crimes during sentencing therefore 

demonstrating some remorse which could tend to show recidivism is less likely. R.C. 

2929.12(E)(5). However, the apology seems somewhat disingenuous considering 

Jordan's earlier comments where he seemed to indicate that the State's failure to indict 

him earlier contributed to his continued drug trafficking: 

{¶31} "MR JORDAN: I would like, uh, I would like to say, 'Yes, I did sell drugs, 

and I went to jail.' And all this from 2003, I believe I was eighteen or nineteen. 

{¶32} "And I did, I sold drugs, I went to jail for it, and in this case, I guess I got the 

possession from '03, and I was never charged, it's not like I was charged and then I came 

and I just kept catching cases. 

{¶33} "It's just, they -- I had cocaine in my pocket, I was not indicted-- all this is 

coming four years later, it's like they saved it. You know what I'm saying? Maybe if I was 

indicted, maybe if -- you know what I'm saying? Maybe I wouldn't have continued to sell 

drugs. You know what I'm saying? It's like they just saved it up." 

{¶34} These remarks would seem to indicate Jordan's failure to accept full 

responsibility for his actions. Thus, on the whole, the trial court could have reasonably 

concluded recidivism was more likely. For these reasons, the trial court did not abuse its 

discretion in sentencing Jordan. 

{¶35} In conclusion, Jordan's sole assignment of error is meritless. Jordan's 

sentence was not clearly and convincingly contrary to law or an abuse of discretion. 

Accordingly, the judgment of the trial court is affirmed. 

Vukovich, P.J., concurs. 

Waite, J., concurs in judgment only.