Jimmy Houston, 11-1827 THE EIGHTH AMENDMENT PROHIBITS IMPOSITION OF THE ... 2929.12, and 2929.13 with respect to each material element of the offense requiring a showing that the offender

IN THE SUPREME COURT

Jimmy Houston,

Appellant,

V.

State of Ohio,

Appellee.

11-1827On Appeal from the Sandusky

County Court of Appeals,Sixth Appellate District

Court of Appeals

Case No. S-10-027

Tr. No. 09CR000864

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT JIMMY HOUSTON

Jinmty Houston #583-979P.O. Box #7881150 North Main StreetMansfield, Ohio 44901

Counsel for Appellant

Thomas L. StierwaltSandusky County Prosecutor100 North Park venue, Suite 319

Fremont, Ohio 43420

Counsel for Appellee

^CT %^i ?01;

CLERK OF COURTSUPREME COURT OF OHIQ

TABLE OF CONTENTS

Paee

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUIONAL QUESTION ............ ...........................................:...:..................................... 1

STATEMENT OF THE CASE AND FACTS ...........:..................................................................

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .....................................................

Proposition of Law No. I : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

THE EIGHTH AMENDMENT PROHIBITS IMPOSITION OF THEMAXIMUM PENALITY ON ONE WHO PLAINS OR AIDS AFELONY IN THE COURSE OF WHICH AN ATTEMPTEDMURDER AND FELONIOUS ASSAULT IS COMMITTED BYCOFELONS BUT WHO DOES NOT HIMSELF SOLICIT,REQUEST, COMMAND, CAUSE, OR AID THE ATTEMPTED TOMURDER AND FELONIOUSLY ASSAULT, OR INTEND THAT ANATTEMPT TO MURDER AND FELONIOUSLY ASSAULT WILL

BE EMPLOYED.

Pronosition of Law No. II : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

THE SIMULTANEOUS REPEAL AND REVIVAL OF

R.C.2929.14(E)(4) AND 2929.41(A) INVALIDATED BY STATE V.FOSTER (2006), 109 OHIO ST.3D 1, FOSTER IS PROSPECTIVELYOVERRULED BY THE HOLDING IN OREGON V. ICE (2009), 555U.S. 160, AND APPLIES TO THOSE WHO EITHER RAISED ICEAT SENTENCING, ON DIRECT APPEAL, OR PENDING APPEAL.

i

CONCLUSION .........................:........:...............................................:................:.........................

CERTIFCATE OF SERVICE ....................................................................................................... 10

APPENDIX Appex. Page

Opinion of the Sandusky County Court of Appeals

(September 16, 2011) ..................:.........................................................................

Judgment Entry of the Sandusky County Court of Appeals(September 16, 2011) .......:.......:.............:..............................:.............:.................

13

ii

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUIONAL OUESTION

This cause presents two critical issues for the future of sentencing in Ohio: (1) Whether on

constitutional grounds under cruel and unusual punishment, a criminal sentence must commensurate

with the seriousness of the offenders "culpable" conduct for which the offender has been convicted

under Ohio Revised Code Sections 2929.11, 2929.12, and 2929.13 with respect to each material element

of the offense requiring a showing that the offender acted purposely, knowingly, recklessly, or

negligently in the same way as the primary offender; and (2) Whether imposing consecutive sentences

without making the required findings under Ohio Revised Code Sections 2929.14(E)(4), and

2929.41(A),invalidated by this Court's decision in State v. Foster (2006), 109 Ohio St.3d 1, are subject

to reenactment under the United States Supreme Court's decision in Oregon v. Ice (2010), 555 U.S. 160,

and although constitutional under State v. Hodge (2010), 2010-Ohio-6320, Oregon v. Ice, would apply

only to those sentenced on or after the decision of Oregon v. Ice, limiting the application of sentences

in future cases to those Defendants who presently have appeals or pending appeals in which those

Defendants raised Oregon v. Ice at sentencing or on Direct Appeal, thereby prospectively overruling

Foster.

In this case, the court of appeals overlooks and excluded the full purposes and principles of

Ohio's Felony Sentencing Statutes R.C.2929.11, 2929.12, and 2929.13 in determining the most effective

way in sentencing an offender that commensurates with the seriousness of "the offender's conduct" that

"criminal culpability" requires a showing that the offender acted purposely, knowingly, recklessly, or

negligently as the "primary" offender with respect to each material element of the offenses, and

concluded, therefore, that "we cannot conclude that the trial court clearly and convincingly failed to

consider R.C.2929.11 and 2929.12.". The court of appeals also held that, "we cannot conclude that the

1

trial court's sentencing decision was unreasonable, arbitrary, or unconscionable.".

The decision of the court of appeals threatens the very structure of Ohio's sentencing scheme by

the General Assembly in R.C. Chapter 2929. By it's ruling, the court of appeals undermines Legislative

intent,ignores the plain meaning of R.C. Chapter 2929, and creates it's own unsupported view of Ohio's

sentencing scheme. Moreover, the court of appeals' decision establishes the illogical and untenable rule

that a trial court, or an appellate court can ignore an offenders constitutional protections against cruel

and unusual punishment and Ohio's Legislative sentencing scheme by ignoring the provisions found in

R.C. Chapter 2929. Here, the court of appeals elevates itself over the guarantee of the United States

Constitution, Ohio's Constitution, and the authority of the General Assembly.

The second critical issue, here the court of appeals decision excludes the intentions of Ohio's

General Assembly's simultaneous repel and revival of the language in those divisions that was

invalidated by this Court's decision in State v. foster, supra, and concluded, therefore, that "[t]he United

States Supreme Court's decision in Oregon v. Ice does not revive Ohio's former consecutive-sentencing

Statutory provisions, R.C.2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v.

Foster." Citing Hodge, supra. The court of appeals also ruled that, "trial court judges are not obligated

to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly

enacts new Legislation requiring that findings be made. Id. Paragraph three of the syllabus. Therefore,

the trial court did not err when it sentenced appellant without applying the excised statutes."

The decision of the court of appeals threatens the very structure of the United States Supreme

Court's decision in Oregon v. Ice, and the General Assembly's repeal and revival of the statutes

p,wr-suaf?t-to-Ice, Appellant s_FOnslitutional right to be subjected under the laws enacted by Legislation at

the time of commission, or sentencing upon his alleged offense. By it's ruling, the court of appeals

undermines Legislative intent, ignores the plain meaning of the United States Supreme Court in Oregon

2

v. Ice, and creates it's own unsupported view. Moreover, the court of appeal's decision establishes the

illogical and untenable rule that, trial courts, or an appellate court can ignore its superior authority.

Finally, the decision of the court of appeals elevates itself once more over the authority of the

General Assembly and the Constitutions of Ohio and the United States. They urgently need correction

by this Court.

The implications of the court of appeals affects every criminal court in Ohio, and touches the

lives of tens of thousands of citizens in the state. The publics interest in the sentencing scheme is

profoundly affected by a holding that the maximum penalty is the only penalty in Ohio's sentencing

scheme. Such a holding would sabotage the integrity of it's citizens, and undermine the fundamental

principles of Legislation that constrains governments as well as citizens. Similarly, the public interest

is affected if the plain meaning of a statute or statutes duly adopted by the General Assembly can be

judicially altered to subvert the Legislation's intent that Ohio's statutory sentencing scheme are to be

applied completely and read in pari materia.

Apart from these considerations, which make this case one of great public interest, the decision

of the court of appeals has broad general significance. Thousands and thousands of citizens of Ohio or

their loved ones are subject to Ohio's sentencing scheme by judges across this state who perform the

essential work of sentencing. The General Assembly has recognized their right, and has codified a

clear, and statutory process for sentencing. Under this codification, determines the terms and conditions

of their sentence. The resulting sentence, represents the product of a process by which citizens and/or a

criminal defendant's intent that jointly affect them.

F;nallv _this casie, inv9lves a substantial constitutional uestion. The decision offends the United^-

States and Ohio's constitutional scheme by elevating the role of judicial power of the court room over

the constitution to excessive lengths of imprisonment greatly disproportionate to the culpability of

conduct and intent of an alleged defendant on that of those cofelons who committed the worst forms of

the crime. Such a constitutional imbalance is contrary to the United States Supreme court's holdings in

Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544; Coker v. Georgia (1977), 433 U.S. 584, 97

S.Ct. 2861; Solem v. Helm (1983), 463 U.S. 277, 103 S.Ct. 3001; and Enmund v. Florida (1982), 458

U.S. 782, 102 S.Ct. 3368.

Contrary to the holdings in the above, the court of appeals decision impairs the functioning of

the constitution and purposes of R.C. Chapter 2929. The Supreme Court of the United States rejects

such a regression in the constitution.

The Eight Amendment concept of proportionality was first fully expressed in Weems, supra,

remarking that "it is a precept of justice that punishment for a crime should be graduated and

proportioned to the offense:" at *549.

Two-thirds of a century later, in Coker, supra, the court declared another punishment to be

unconstitutionally disproportionate to the crime. That death is a disproportionate penalty for the crime

of raping an adult women. At 2868.

Less than a decade later, in Solem, supra, the court pronounced, "the Eight Amendment

declares: 'excessive bail shall not be required, nor fines imposed, nor cruel and unusual punishment

inflicted.' The Clause prohibits not only barbaric punishments, but also sentences that are

disproportionate to the crime committed." at *284

The year prior to the court's decision in Solem, the court in Enmund, supra, focused on the

intent, i.e., conduct of the defendant and not that of those who committed the actual offense. "The focus

must-be_on hisculpabilit_y_, not_thaLof thosie w4io_cQmmitted the robbery and shot the vrctims." At2929.

If allowed to stand, the decision of the court of appeals would ravage the constitutional

protections against cruel and unusual punishment. Under the decisions, the constitutions guarantee

4

would be lost, and the purposes and principles of Ohio's felony sentencing scheme found in R.C.

Chapter 2929 would also be lost.

In sum, this case puts in issue the essence of certain constitutional issues involving Ohio's

sentencing scheme and the fate of criminal defendants, thereby, affecting every criminal sentencing

court and citizens in Ohio. To promote the constitution and the purposes and principles of Ohio's

sentencing scheme and to preserve the integrity of Ohio's judiciary, assuring uniform application of

Ohio's sentencing statutes and scheme, this Court must grant jurisdiction to hear this case and review

the dangerous and erroneous decision of the court of appeals.

STATEMENT OF THE CASE AND FACTS

The underlying charges were based upon a home invasion, where the victims were beaten and

restrained and numerous firearms were taken. Two other defendants, Paul Biddwell and Ronald Ruby,

were implicated as the individuals that entered the home and beat and restrained the victims. The state

accepted Appellant's version of the case and the facts that Appellant did not harm the victims

personally and did not instruct Biddwell or Ruby to harm the victims, let alone beat them, see state's

Brief at 1, yet the state still argues that Appellant's sentence was properly consistent with the terms

given to Biddwell and Ruby. Appellant disagrees and challenges his sentence to the same terms as these

other defendant's Biddwell and Ruby, who without direction and on their own volition, attacked and

beat the victims. With these factual differences between Appellant's case and those of Biddwell and

Ruby, on appeal, the court of appeals initially noted that the issue of disproportionate sentencing must

urst be-ra'tsed ^n the-trial-coart-a:.d-supported-1?ysufficien+.-evidence-trapreseY^,.-eshe_error-fo-r-appiml._f

Thus, we will not address appellant's argument to the extent that he bases it on the contention that his

sentence was disproportionate to that of his co-defendants. Id. Opinion, at {¶10}. The court of appeals

5

further held that Oregon v. Ice, Ibid., does not revive Ohio's former consecutive-sentencing statutory

provisions. Id. At {¶25}.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

'Pronosition of Law No. I:

THE EIGHTH AMENDMENT PROHIBITS IMPOSITION OF THEMAXIMUM PENALITY ON ONE WHO PLAINS OR AIDS A

FELONY IN THE COURSE OF WHICH AN ATTEMPTEDMURDER AND FELONIOUS ASSAULT IS COMMITTED BY

COFELONS BUT WHO DOES NOT HIMSELF SOLICIT,REQUEST, COMMAND, CAUSE, OR AID THE ATTEMPTED TO

MURDER AND FELONIOUSLY ASSAULT, OR INTEND THAT ANATTEMPT TO MURDER AND FELONIOUSLY ASSAULT WILLBE EMPLOYED.

Although Appellant did not per-se raise the issue of intent in relation to his argument of

disproportionality in sentencing between his sentence and that of those who actually committed the

beatings of the Kohler's, the court of appeals erroneous decision not to address appellant's argument to

the extent that he bases it on the contention that his sentence was disproportionate to that of his co-

defendants, is in direct opposition to Criminal Rule 52(B)'s, Plain error analysis, especially were the

court of appeals addressed "Appellant's argument to the extent that it is based on his contention that the

trial court failed to comply with R.C.2929.11" Id. Opinion, at {110}. But yet, the court of appeals

reasoned that it needed "sufficient evidence to preserve the error for appeal." Id. Thus, if the court of

appeals would have addressed Appellant's issue under Criminal Rule 52(B)'s analysis, the court would

have-found-rhat_" r he focus-must-be-an-his_c,ilpab;li(s, notthat_of-t_hosew1^.o comm_+_ttedihe_atten?pted

murder and felonious assault." Enmund v. Florida, supra, at *798.

Here Biddwell and Ruby committed the Attempt to murder and felonious assault; they were

subjected to maximum-consecutive sentences because they beat aswe11 as burglarized. Houston-

6

Appellant, himself did not attempt to murder or to feloniously assault; and as the state accepted the

version of the case and the facts that Houston did not harm the victims personally and did not instruct

Biddwell or Ruby to harm the victims, let alone beat them, the record before the court of appeals did

not warrant a finding that Appellant / Houston, had any intention of participating in or facilitating an

attempt to murder and feloniously assault. Yet under Ohio law, maximum-consecutive sentences were

an authorized penalty because Houston 7 Appellant, conspired i.e., aided and abetted a burglary in the

course of which an attempted murder and felonious assault was committed. It is fundamental that

"causing harm intentionally must be punished more severely than causing the same harm

unintentionally." H. Hart, Punishment and responsibility 162 (1968). Appellant, / Houston, did not

attempt to murder or feloniously assault and thus his culpability is plainly different from that of

Biddwell and Ruby who attemptedto murder and feloniously assault; yet the state and the court of

appeals treated them alike and attributed to Houston, the culpability of those who attempted to murder

and feloniously assault the Kohler's. This is impermissible under the Eighth Amendment. Enmund v.

Florida, at *798.

Proposition of Law No. II :

THE SIMULTANEOUS REPEAL AND REVIVAL OF

R.C.2929:14(E)(4) AND 2929.41(A) INVALIDATED BY STATE V.FOSTER (2006);109 OHIO ST.3D 1, FOSTER IS PROSPECTIVELYOVERRULED BY THE HOLDING IN OREGON V. ICE (2009), 555U.S. 160, AND APPLIES TO THOSE WHO EITHER RAISED ICEAT SENTENCING, ON DIRECT APPEAL, OR PENDING APPEAL.

Appellant submits, that pursuant to Or¢eon v. Ice (2009), 129 S.Ct. 711, and despitethat ot tate

v. Foster (2006), 109 Ohio St.3d 1, he was entitled to be sentenced under the wrongly excised portions,

R.C.2929.14(E)(4) and R.C.2929.41(A), and that it is the intention of the General assembly's

7

recognition of Ice, that Ice, clarifies the law at the time of Appellant's offense and sentencing, and that

he is entitled to be sentenced under these wrongly excised portions, and that those Statutory findings

remained a prerequisite to imposing consecutive sentences.

This Court has not yet, [fully] analyzed the effects and implications of Ice, as it completely

relates to Foster and the Ohio General Assembly's intentions. However, this Court has recently chosen

to revisit the issue in light of Ice, by accepting the discretionary appeal of State v. Hodge, No.

2009-1997, 2010-Ohio-354, and although this Court in Hodge, found Foster, to be constitutional, this

court also found in Hodge, that, "had we the benefit of the United States Supreme Court's decision in

Ice regarding Oregon's consecutive-sentencing statutes prior to our decision in Foster, we likely would

have ruled differently as to the constitutionality, and continued vitality, of our own state's consecutive-

sentencing provisions." Id. Hodge, at {120}

Although the proposition of law presented in Hodge, is in essence, different from that of

Appellant's, this Court also held in Hodge, that, "the statute can no longer have any effect and can be

revived only through affirmative action of the General Assembly. Id. At{ ¶ 231.

Most recently, "affirmative action" Ibid., has been taken by the General Assembly in Am. Sub.

H.B. No.86 where they have said "In amending division (E)(4) of section 2929.14 and division(A) of

section 2929.41 of the revised Code in this act, it is the intent of the General Assembly to

simultaneously repeal and revive the amended language in those divisions that was invalidated and

severed by the Ohio Supreme Court's decision in State v. Foster (2006), 109 Ohio St.3d 1. The amended

language in those divisions is subject to reenactment under the United States Supreme Court's decision

__in-Or-egon-y Tr.,e(200K_5551U-S._I611,and_thP-OLiio-Suprena.e_Caurts_dericinn in-State v.-Hoslge_(2Q19),

Ohio St.3d _, slip Opinion No. 2010-Ohio-6320 and, although constitutional under Hodge,

supra, that language is not enforceable until deliberately revived by the General Assembly." Ibid.

8

Appellant submits as such, that it is the intention of the General Assembly to retrospectively

apply Ice to those of Appellant's limited circumstances, thereby, prospectively overruhng Foster for

future law or decisions thus minimizing the effects on the administration of justice.

In other words, constitutional law announcing new or different rights for criminal defendant's

may be given full retroactive effect so as to permit those of Appellant's limited circumstances from the

effects of Foster, "until deliberately revived by the General Assembly." Ibid. Thus, avoiding any train

wreak and economical disaster upon the courtrooms across Ohio and yet preserving the integrity of

Ohio's judicial system. Moreover, this would be in line with that of Justice O'Donnell and Justice

Pfeifer's opinion in Hodge.

CONCLUSION

The decision below is fundamentally wrong in its reasoning and dangerous in its implication for

the citizens of Ohio and those being sentenced in this state. The decision undermines the very structure

and purpose of the Constitution and that of R.C. Chapter 2929 of Ohio's sentencing scheme. The

decision below would establish an unconstitutional and outmoded method of sentencing, a method the

United States supreme Court condemned in Weems v. United States ( 1910), 217 U.S. 349, 30 S.Ct. 544;

Coker v. Georeia (1977), 433 U.S. 584, 97 S.Ct. 2861; Solem v. Helm ( 1983), 463 U.S. 277, 103 S.Ct.

3001; Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368; and Oreeon v. Ice (2009), 555 U.S. 160,

as well as this court in State v. Hodge (2010), Ohio St.3d slip Opinion No. 2010-Ohio-6320.

The decision below must be reversed. A reversal will promote the exemplary purposes of the

Constitution and the purposes of R.C. Chapter 2929, preserving the unmistakable legislative intent,

which this Court has and must uniformly support.

Respectfully submitted,

Jimmy Houston #583-879P.0:Box #7881150North Main StreetMansfield, ohio 44901

Counsel for AppelllantJimmy Houston

Certificate of Service

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. Mail to counsel for

appellee, Thomas L. Steirwalt, Sandusky County Prosecutor, at 100 North Park Avenue, Suite 319,

Fremont, Ohio 43420.

Jimmy Houston

Counsel for Appellant.Jimmy Houston

10

SANDUSKY COUNTY^^^RT OF APPEALS

^ILEDSEP 1:6 2o1i

IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-10-027

Appellee Trial Court No. 09CR00.0864

V.

Jimmy L. Houston

Appellant

DECISION AND JUDGMENT

Decided: SEP 16 2011

Thomas L. Stierwalt, Sandusky County Prosecuting Attorney,and Norman P. Solze, Assistant Prosecuting Attorney; for appellee.

Keitli O'Korn, for appellant.

YARBROUGH, J.

{¶ 1} This is an appeal from the judgment of the Sandusky County Court of

Common Pleas imposing a 23-year sentence on appellant Jimmy Houston. For the

reasons that follow, we affirm.

{¶ 2} On July 30, 2009, a grand jury indicted appellant on two counts of attempted

murder, two counts of felonious assault, two counts of kidnapping, two counts of

aggravated robbery, one count of aggravated burglary with a firearm specification, 33

counts of grand theft, and one count of tampering with evidence. These charges stemmed

from a home invasion where the victims were beaten and restrained, and numerous

firearms were taken. Appellant planned the invasion, and recruited two other defendants,

Paul Biddwell and Ronald Ruby, to help carry out the plan. Biddwell and Ruby were

implicated as the individuals who entered the home and beat and restrained the victims.

{¶ 3} On April 26, 2010, appellant pleaded guilty to_.two counts of attempted

murder in violation of R.C. 2903.02(A) and 2923.02, one count of kidnapping in

violation of R.C. 2905. 0 1 (A)(2), and one count of^ aggravated burglarywith a firearm

specification in violation of R.C. 2911.11(A)(1), 11 felonies of the first degree.

1Appellant also pleaded guilty to one count of grar^d theft in violation of R.C.

2913.02(A)(1) and (13)(4), a felony of the third de^ree. The remaining charges were

dismissed.

{¶ 4} A sentencing hearing was held on M`y 11, 2010. After considering the

presentence mvestigation report and the statemen from the victimsand from appellant,

the trial court. sentenced appellant to.a term of 23 ears. The sentence consisted of ten

years on each of the two attempted murder convic^tions, to be served consecutively, a

term of ten years each on the kidnapping and agoavated burglary convictions, to be

1served concurrently to each other and to the attempted murder convictions, a mandatory

2.

one-year firearm specification term to be served consecutively to the attempted murder

convictions, and finally, a two-year term on the grand theft conviction, also to be served

consecutively to the attempted murder convictions and to the firearm specification. The

court memorialized this sentence in a judgment entry journalized on May 12, 2010.

{¶ 5} Appellant has timely appealed the May 12, 2010 judgment entry, and now

raises the following three assignments of error:

1. "APPELLANTS SENTENCE WAS CONTRARY TO LAW AND

CONSTITUTED AN ABUSE OF DISCRETION."

.2. "IN CONTRAVENTION OF RECENT U.S. SUPREME COURT

PRECEDENT, OREGON V ICE, 'I'HE 6TH AMENDMENT TO

THE U.S. CONSTITUTION, AND THE RE-ENACTED OHIO

SENTENCING CODE, TBE TRIAL COURT ERRED BY

IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING

THE REQUIRED STATUTORY FINDINGS PURSUANT TO R.C.

§ §. 2929.14(E)(4), 2929.41(A)."

3. "TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE

OF COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO

THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10, 16- . . ..A - , ..

. j . . .

OF THE i HIO CONSTITUTION."

-{¶ 6} As to appellant's st assignment of error, we start with the general rule that

"appellate courts must apply a two-step approacli when reviewing felony sentences.

3.

First, they must 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. If this first prong is satisfied, the trial court's decision in

imposing the term of imprisonment is reviewed under the abuse-of-discretion standard."

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. An abuse of discretion is

"more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219.

{¶ 7} Appellant presents four arguments in support of his first assignment of error.

First, appellant argues that the sentence is contrary to law because it violates the

conservation of resources principle under R.C. 2929.13(A). That statute states, in

relevant part, "* * * 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." R.C. 2929.13(A). The term

"unnecessary burden" is not defined inthe statute, but this• court has stated that the

language used "suggests that the costs, both economic and societal; should not outweigh

the benefit thatthe people of the state derive from an offender's incarceration." State v.

Ward, 6th Dist. No. OT- 10-005, 2010-Ohio-5164, ¶ 9(quoting State v. Vlahopoulos, 154

Ohio App.3d 450, 2003-Ohio-5070, ¶ 5, abrogated on other grounds by State ex rel.

Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671).

{t 8} Here, appellant, who was born in 1976, contends that any danger to society

he represents would be abated long before the time of his release, and thus any future

benefit from his incarceration would be outweighed by the cost to the state. However,

the state clearly has a significant interest in incarcerating anyone who plans a home

invasion that results in the severe beating of two elderly citizens. Thus, we cannot find

that appellant's sentence was clearly and convincingly contrary to R.C. 2929.13(A), and

therefore appellant's first argument is without merit.

{¶ 9} Second, appellant argues that the sentence is neither proportional nor

consistent under R.C. 2929.11, and that the sentence constituted an abuse of discretion.

R.C. 2929.11(13) provides that "[a] sentence imposed for a felony.shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing ***,

commensurate with and not demeaning to the seriousness of the offender's conduct and

its impact upon the victim, and consistent with sentences imposed.for similar crimes

conunitted by similar offenders." The two overriding purposes of.felony sentencing are

"to protect the public from future crime by the offender and others and to punish the

offender." R.C. 2929.11(A). Appellant argues that the trial court failed to comply with

R.C. 2929.11 because itmade no reference to an analysis under that section in its_

sentencing entry, but merely imposed approximately the same sentence on appellant as it

did on Biddwell and Ruby. The focus of appellant's argument is that his sentence should

be less severe than Biddwell's and Ruby's because he did not desire to cause any physical

harm to the victims.

5.

{¶ 10} We initially note that "[t]he issue of disproportionate sentencing must first

be raised in the trial court and supported by sufficient evidence to preserve the error for

appeal." State v. Elkins, 6th Dist. No. S-08-^14, 2009-Ohio-2602, ¶ 16. Here, appellant

has failed to raise this issue below. Thus, we will not address appellant's argument to the

extent that he bases it on the contention that his sentence was disproportionate to that of

his co-defendants. However, we will address appellant's argument to the extent that it is

based on his contention that the trial court failed to comply with R.C. 2929.11.

{¶ 11} Appellant argues that the trial court failed to comply with R.C. 2929:11 by

not referencing that section in its sentencing entry. However, "where the trial court does

not put on the record its consideration of R.C. 2929.11 and 2929.12, it is presumed that

the trial court gave proper consideration to those statutes." State v. Kalish, supra, at ¶ 18,

fn. 4. Thus, appellant's argument is without merit:

{¶ 12} Moreover, the transcript of the sentencing hearing demonstrates that the

trial court did properly consider the statutory sentencing, factors and guidelines found in

R.C. 2929.11 and 2929.12. The trial court stated:

{¶•13} "The Court has heard the statements from [the victims], has reviewed the

Presentence Investigation, which includes the defendant's criminal history, social history;

education. And the Court needs to, you know, take all these things into consideration in

crafting a penalty. The Court's first and foremost job is to protect the public, or attempt

to protect the public from future crime and impose the appropriate -punishment upon

conviction.

6.

{¶ 14} "We can not demean the seriousness of the crime, nor its impact upon the

victims. Need to also take into consideration the resources of the State, maintain some

consistency in the sentences. Need to take into consideration the seriousness and

recidivism factors under 2929.12(B) through (E).

{¶15}°***

{If 16} "Need to take into consideration Mr. Houston's history of criminal

convictions. * * *

{¶17}"***

111181 "So are there any factors which would make it less likely that you might

commit future crimes? Well, I haven't found them. * * * And I note no factors which

would make this offense less serious for sentencing purposes."

{¶-19} Based onthe foregoing, we cannot conclude that the trial court clearly and

convincingly failed to consider R.C. 2929.11 and 2929.12.

111201 Further, after reviewing the record, we hold that the trial court did not

abuse its discretion in sentencing appellant to 23 years. In explaining why appellant

received a different sentence as compared to his co-defendants, the trial court explained

that the additional year was due to appellant's leadership role in the crime. The trial court

stated: "You were the master of the ship, so you take a little more responsibility."

Considering this, we cannot conclude that the trial court's sentencing decision was

unreasonable, arbitrary, or unconscionable. Therefore, appellant's second argument is

without merit.

7.

{¶ 211 Third, appellant argues that the May 12, 2010 judgment entry was

ambiguous in that it did not specify that the two-year term for the grand theft conviction

ran consecutive to the terms imposed for the attempted murder convictions. The original

sentencing entry stated "Defendant is further sentenced to a TWO (2) year term in prison

on count Ten, for an aggregate sentence of TWENTY-THREE (23) years prison [sic] *

**." Appellant contends that this is ambiguous and cites to the general proposition that

"[i]f sentencing is ambiguous as to whether a sentence should be served concurrently or

consecutively, the ambiguity must be resolved in favor of the defendant and the sentences

must be served concurrently." State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073, ¶ 4.

However, despite not including the word "consecutive," we do not think that the sentence

is ambiguous because to reach the aggregate term of 23 years, the two-year term for

grand theft necessarily must be served consecutively.

{¶ 22}-In addition, appellant argues that the trial court's nunc pro tunc entry

clarifying that the grand theft term was to be served consecutively failed to comply with

Crim.R. 32(C) and State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. This court has

alreadyaddressedthis matter in appellant's "Motion to Determine AppellateJurisdiction."

In our December 14, 2010 decision on that motion, we held that the trial court's nunc pro

tunc entry "did not alter the sentence imposed in any manner." Thus, we found that

"appellant has a judgment which complies with Crim.R. 32(C)." Consequently,

appellant's third argument is without merit.

1 8.

{¶ 23} Fourth, appellant argues that the term for the firearm specification must be

served consecutively to the underlying offense. In this case, appellant contends that

"[s]ince the prison term for the [aggravated] burglary expires ten years before the term

for the second attempted murder count expires, the firearm specification would naturally

also expire if t.he trial court had run the firearm specification truly 'consecutive' to the

[aggravated] burglary count, the base offense." Appellant's argument, while creative, is

not consistent with R.C. 2929.14(E)(1)(a), which provides for a mandatory firearm

specification term to be served "consecutively to any other prison term or mandatory

prison term previously or subsequently imposed upon the offender." Here, the attempted

murder terms are prison ternls "previously or subsequently imposed upon the offender."

Therefore, appellant's fourth argument is without merit.

{¶ 24} Accordingly, because the trial courk's sentence is neither contrary to law

nor. an. abuse of discretion, appellant's first assignment of error is not well-taken.

{¶ 25} For his second assigninent of error, appellant argues that the trial court

erred by imposing consecutive sentences without making the required statutory findings

pursuant to R.C. 2929.14(E)(4) and 2929.41(A). The Ohio Supreme Court has recently

addressed this issue in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320; and held that

"[t]he United States Supreme Court's decision in Oregon v. Ice does not revive Ohio's

former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A),

which were held unconstitutional in State v. Foster." (Citations omitted.) Hodge, at

paragraph two of the syllabus. "Trial court judges are not obligated to engage in judicial

9.

fact-finding prior to imposing consecutive sentences unless the General Assembly enacts

new legislation requiring that findings be made." Id. at paragraph three of the syllabus.

Therefore, the trial court did not err when it sentenced appellant without applying the

excised statutes. Accordingly, appellant's second assignment of error is not well-taken.

{^( 26} Finally, in support of his third assignment of error, appellant argues that his

trial counsel was ineffective for failing to fi e a motion to waive court costs, and for

failing to "enter objections or make atgume^ts at sentencing so as to preserve the all [sic]

contentions set forth in the first and second signments of error above." To demonstrate

ineffective assistance of counsel, appellant ust satisfy the two-prong test developed in

Strickland v. Washington (1984), 466 U.S. 68, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

That is, appellant must show counsel's performance fell below an objective standard of

reasonableness, and a reasonable probability exists that but for counsel's error, the result

of the proceedings would have been different. Strickland, supra, at 687-688. Here,

appellant has failed to demonstrate that the result of the proceedings would have been

different had the purported errors not occurred.

{¶ 271 As to appellant's first grounds for claiming ineffective assistance, it is-tru.e

that "an indigent defendant must move a trial court to waive payment of costs at the time

of sentencing. If the defendant makes such a motion, then the issue is preserved for

appeal and will be reviewed under an abuse-of-discretion standard. Otherwise, the issue

is waived and costs are res judicata." State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-

0905, ^ 23. Appellant argues that his trial counsel's failure to move to waive costs

10.

prejudiced him because now the issue carmot be raised on appeal and appellant must pay

the costs. However, under R.C. 2949.092, a trial court has discretion to waive court

costs. See, also, State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶ 8, fn. 1. Here,

appellant has tnade no demonstration that a "reasonable probability" exists that the lower

court would have waived the costs upon appellant's motion. See State v. King, 6th Dist.

No. WD-09-069, 2010-Ohio-3074, ¶ 11. Thus, we cannot conclude that trial counsel's

failure to object to costs constituted ineffective assistance of counsel.

{1(28} As to appellant's second grounds for claiming ineffective assistance, we

note that the only argument described above which appellant was prevented from raising

on appeal was that his sentence was disproportionate to the sentences received by his co-

defendants. As with his preceding claim of ineffective assistance, appellant has not

demonstrated a reasonable probability exists that, but for the error, the outcome would

have been different. As appellant identifies in his brief, this court has held that

"[c]onsistent sentencing occurs when a trial court properly considers the statutory

sentencing factors and guidelines found in R.C. 2929.11 and 2929.12 in eveiy case."

State v. Elkins, 6th Dist. No.. S-08-014, 2009-Ohio-2602, ¶ 17. "Therefore, appellant

cannot support an assignment of error of disproportionate sentencing solely based upon

references to sentences imposed in other cases where defendants were sentenced for the

same offense." Id. Because we have already concluded that the trial court properly

complied with the requirements of R.C. 2929.11 and 2929.12, appellant's appeal based on

his sentence being disproportionate to that ofhis co-defendants must fail.

11.

{¶ 29} Accordingly, appellant has failed to satisfy the second prong of Strickland

with respect to either of his claims for ineffective assistance of counsel, and his third

assignment of error is not well-taken.

{l[ 30} For the foregoing reasons, the judgment of the Sandusky County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

JUDGMENT AFFIRMED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See,

also, 6th Dist.Loc.App.R. 4.

Peter M. Handwork, J.

Thomas J. Osowik_ P.J.

Stephen A. Yarbrough. J.CONCUR.

JITDGE

.J^ZGE

This decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http://www.sconet.state.oh.us/rod/newpdf/?source--6.

0144A?.^lln7^

12.