[Cite as State v. Foster, 2011-Ohio-2480.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsDUSTIN M. FOSTER 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. Patricia A. Delaney, J. 

Case No. 10-COA-033 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from Ashland County Court of 

Common Pleas, Case No. 10-CRI-076 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: May 20, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

RAMONA FRANCESCONI ROGERS DOUGLAS A. MILHOAN 

Ashland County Prosecutor P.O. Box 347 

110 Cottage Street, Third Floor Middlebranch, Ohio 44652 

Ashland, Ohio 44805 

PAUL T. LANGE 

Assistant Prosecuting Attorney 

110 Cottage Street, Third Floor 

Ashland, Ohio 44805 
Ashland County, Case No. 10-COA-033 2

Hoffman, J. 

{¶1} Defendant-appellant Dustin M. Foster appeals his sentence entered by the 

Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On June 19, 2010, Appellant struck two men in the back of the head with a 

hammer during a robbery. The men had to be lifeflighted to Cleveland Metro Hospital. 

Both men sustained fractured skulls. During the police investigation of the incident, 

Appellant was observed on surveillance video with the victims at a local bar in Ashland, 

Ohio. The investigating officers contacted Appellant urging Appellant to turn himself in, 

but Appellant fled to the State of Pennsylvania. 

{¶3} Initially, Appellant claimed self-defense. However, Appellant later 

admitted to seeing one of the victims with a large sum of money in his wallet. He lured 

them to a home after leaving the bar, where he obtained a hammer and attacked them 

from behind. Appellant stole money from the victim’s wallet and left the two victims in 

the alley. 

{¶4} On July 27, 2010, Appellant entered a plea of guilty to two counts of 

felonious assault, both felonies of the second degree. On September 20, 2010, the trial 

court sentenced Appellant to sixteen years in prison. 

{¶5} Appellant now appeals, assigning as error: 

{¶6} “I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE 

IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES.” 

{¶7} Based on the record, this Court cannot find the trial court acted 

unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant's 
Ashland County, Case No. 10-COA-033 3

rights to due process under the Ohio and United States Constitutions in its sentencing. 

Further, the sentence in this case is not so grossly disproportionate to the offense as to 

shock the sense of justice in the community. 

{¶8} In his assignment of error, Appellant contends his sentence violates the 

general assembly's intent to minimize the unnecessary burden on state and local 

government resources. 

{¶9} In State v. Ober (Oct. 10, 1997), Greene App. No. 97CA0019, the Second 

District considered this same issue. In rejecting the argument, the court stated, 

{¶10} “Ober is correct that the ‘sentence shall not impose an unnecessary 

burden on state or local government resources.’ R.C. 2929.19(A). According to criminal 

law experts, this resource principle ‘impacts on the application of the presumptions also 

contained in this section and upon the exercise of discretion.’ Griffin & Katz, Ohio 

Felony Sentencing Law (1996-97), 62. Courts may consider whether a criminal sanction 

would unduly burden resources when deciding whether a second-degree felony 

offender has overcome the presumption in favor of imprisonment because the resource 

principle is consistent with the overriding purposes and principles of felony sentencing 

set forth in R.C.2929.11. Id.” 

{¶11} The Ober court concluded, 

{¶12} “[a]lthough resource burdens may be a relevant sentencing criterion, R.C. 

2929.13(D) does not require trial courts to elevate resource conservation above the 

seriousness and recidivism factors. Imposing a community control sanction on Ober 

may have saved state and local government funds; however, this factor alone would not 

usually overcome the presumption in favor of imprisonment.” Id.
Ashland County, Case No. 10-COA-033 4

{¶13} R.C. 2929.13 governs sentencing guidelines for various specific offenses 

and degrees of offenses. Subsection (A) states, in pertinent part: 

{¶14} “Except as provided in division (E), (F), or (G) of this section and unless a 

specific sanction is required to be imposed or is precluded from being imposed pursuant 

to law, a court that imposes a sentence upon an offender for a felony may impose any 

sanction or combination of sanctions on the offender that are provided in sections 

2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an 

unnecessary burden on state or local government resources.” 

{¶15} As we noted in State v. Ferenbaugh, Ashland App. No. 03COA038, 2004-

Ohio-977 at paragraph 7, “[t]he very language of the cited statute grants trial courts 

discretion to impose sentences. Nowhere within the statute is there any guideline for 

what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, Ashland App. No.2008-

COA-036, 2009-Ohio-3105, this Court reviewed a similar claim. We found although 

burdens on State resources may be a relevant sentencing criteria as set forth in R.C. 

2929.13, state law does not require trial courts to elevate resource conservation above 

seriousness and recidivism factors, Shull, at paragraph 22, citing State v. Ober (October 

10, 1997), Greene App. No. 97CA0019, 1997 WL 624811. 
Ashland County, Case No. 10-COA-033 5

{¶16} Upon review, we do not find the sentence imposed herein constituted an 

unnecessary burden on state resources. The sole assignment of error is overruled. 

By: Hoffman, J. 

Gwin, P.J. and 

Delaney, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY 

 
Ashland County, Case No. 10-COA-033 6

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

DUSTIN M. FOSTER : 

 : 

 Defendant-Appellant : Case No. 10-COA-033 

 For the reason stated in our accompanying Opinion, the judgment of the Ashland 

County Court of Common Pleas is affirmed. Costs to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY