COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 81056 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION SAMUEL SMITH : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 16, 2003 CHARACTER OF PROCEEDING : Criminal appeal from Cuyahoga : County Common Pleas Court : Case No. CR-415805 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor BRENDAN J. MACKIN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN P. PARKER Attorney at Law The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- KENNETH A. ROCCO, P.J.: Appellant was found guilty of possession of less than one gram of crack cocaine in violation of R.C. 2925.11, and was sentenced to 12 months'imprisonment, the maximum term. He now argues that the sentence should be reversed and the matter remanded for resentencing, because the court failed to ensure that the sentence imposed was consistent with similar sentences imposed for similar offenders, as required by R.C. 2929.11(B). At sentencing, the court noted that this offense was the 28th criminal conviction for this 42 year old man. Prior offenses included aggravated burglary, aggravated robbery, aggravated arson, grand theft, forgery, uttering, passing bad checks, breaking and entering, receiving stolen property, obstruction of official business, and tampering with records. A sentence imposed on appellant in 1991 ordered drug treatment, which the court found to indicate a history of drug abuse prior to this offense. At the conclusion of the sentencing hearing, the court imposed a sentence of 12 months'imprisonment, and stated: "But I want the record to indicate that this individual has a long history of criminal convictions, of very serious crimes. He has a very high rate for recidivism and constitutes a likely threat of further criminal activity. -3- "He has crimes that occurred while he was on bond and on bail. He has not responded favorably to community control sanctions in the past. He continues to use drugs. He has lied to the Court. "I think that a sentence less than the maximum would demean the significance of the offense and his criminal conduct." Appellant now urges that the court did not engage in the analysis required by R.C. 2929.11(B), which directs the court to impose a sentence which is, among other things, "consistent with sentences imposed for similar crimes committed by similar offenders." Appellant has not shown that the court did not engage in this analysis. Unlike many other parts of the sentencing statutes, R.C. 2929.11(B) does not require the court to make express findings. Cf. State v. Edmondson (1999), 86 Ohio St.3d 324. Thus, the lack of any express finding that appellant 's sentence was consistent with the sentences imposed for similar crimes by similar offenders is neither surprising nor erroneous. There is nothing in the record to demonstrate that the court did not consider the sentences imposed for similar crimes by similar offenders. In fact, the court 's judgment entry expressly finds that "prison is consistent with the purpose of R.C. 2929.11. " Therefore, appellant has failed to demonstrate any error by the common pleas court. On the other hand, the court did comply with the dictates of 2929.19(B)(2)(c), which requires the court to make a finding that -4- gives its reasons for imposing the maximum term of imprisonment. Under R.C. 2929.14(C), the court may impose the maximum prison term "upon offenders who poses the greatest likelihood of committing future crimes." The court here found that appellant posed a very high likelihood of recidivism, justifying the maximum term of imprisonment. Affirmed. -5- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PRESIDING JUDGE KENNETH A. ROCCO PATRICIA A. BLACKMON, J. CONCURS TERRENCE O'DONNELL, J. CONCURS WITH SEPARATE CONCURRING OPINION N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). -1- COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 81056 STATE OF OHIO : : Plaintiff-Appellee : CONCURRING : vs. : OPINION : SAMUEL SMITH : : Defendant-Appellant : DATE: JANUARY 16, 2003 JUDGE TERRENCE O'DONNELL, CONCURRING SEPARATELY: I write separately to highlight for those engaged on this issue to point out that in my view R.C. 2929.11(B) does not impose a duty on a trial judge at sentencing. Rather, I would submit that this section has been misconstrued; it is after all only a legislative statement outlining the purposes of felony sentencing. Had the legislature intended for the sentencing trial courts of this state to engage in the kind of review forecasted in State v. Lyons, Cuyahoga App. No. 80220, 2002-Ohio-3424, and as Smith here suggests, it could have mandated such an obligation by incorporating language as it did with its directions for trial judges when imposing more than a minimum sentence (R.C. -2- 2929.14(B)), when imposing a maximum sentence (R.C. 2929.14(C)), and when imposing a consecutive sentence (R.C. 2929.14(E)(4)). It did not do so. Since our role is not to make the law, but rather to interpret it, I offer my view that R.C. 2929.22(B) does not impose any discretionary or mandatory duty or burden on a court in sentencing a criminal defendant. See State v. Bolton, Cuyahoga App. No. 80263, 2002-Ohio-4571. For this reason, I concur with the judgment reached by today's majority. .