# State v. Kalish

> Ohio Supreme Court · October 2, 2008 · 120 Ohio St. 3d 23

URL: https://www.frixlaw.com/law-library/cases/6793295

## Case

- **Full name:** The State of Ohio v. Kalish
- **Court:** Ohio Supreme Court
- **Decided:** October 2, 2008
- **Citations:** 120 Ohio St. 3d 23; 896 N.E.2d 124
- **Precedential status:** Published
- **Opinion:** Concurrence by Willamowski
- **Judges:** Connor, Cupp, Donnell, Lanzinger, Moyer, Only, Pfeifer, Stratton, Third, Willamowski
- **Cited by:** 1,222 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by State v. Marcum (Slip Opinion), 146 Ohio St. 3d 516 (2016).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6793295

## How later opinions describe it (automated extraction)

- stating that the appropriate standard of review is to first determine whether the sentencing court complied with all applicable rules and statutes to determine whether the sentence is clearly and convincingly contrary to law; and second, if the trial court complies with all ap…

## Opinion text

Willamowski, J.,
concurring in judgment only.
{¶ 27} While I agree with the result reached by the plurality, I believe the issue before the court to be of limited scope: whether the standard of review set forth in R.C. 2953.08(G)(2) applies to those appeals challenging the trial court’s considerations under R.C. 2929.11 and 2929.12. In my opinion, R.C. 2953.08(G)(2) applies only in part, and I would therefore affirm the judgment of the trial court.
{¶ 28} As noted by both the plurality and the dissent, this court severed portions of Ohio’s sentencing statute, including those sections that allowed for the *29 imposition of nonminimum, maximum, and consecutive sentences, because the now excised statutes required trial courts to make certain findings based on facts not admitted by the defendant or found by a jury. State v. Foster, 109 Ohio St.3d 1 , 2006-Ohio-856 , 845 N.E.2d 470, at ¶ 82-83 , and paragraphs one through six of the syllabus. The court considered the effect of Blakely v. Washington (2004), 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 , on R.C. 2929.11 and 2929.12 and noted, “[T]here is no mandate for judicial fact-finding in the general guidance statutes.” Id. at ¶ 42. In discussing the general standard of review provided by R.C. 2953.08(G), the court stated, “Employing a clear-and-convincing-evidence standard of review, the appellate court may ‘increase, reduce, or otherwise modify a sentence’ or may vacate the sentence and remand the matter for resentencing if the record does not support the judge’s findings or the sentence is otherwise contrary to law under R.C. 2953.08(G)(2)(a) and (b).” (Footnote omitted.) Id. at ¶ 48.
{¶ 29} R.C. 2929.11 provides:
{¶ 30} “(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{¶ 31} “(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, 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 committed by similar offenders.
{¶ 32} “(C) A court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender.” (Emphasis added.)
{¶ 33} R.C. 2929.12 states:
{¶ 34} “(A) Unless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a sentence under this chapter upon an offender for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the seriousness of the conduct and the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender’s recidivism and, in *30 addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing.” (Emphasis added.)
{¶ 35} The remaining divisions and subdivisions of R.C. 2929.12 provide nonexclusive lists of factors the court must consider in determining the most effective way to comply with the principles and purposes of felony sentencing.
{¶ 36} Since the trial court’s considerations under R.C. 2929.11 and 2929.12 are not “findings,” a sentence would be contrary to law in that regard if the court neglects to consider the statutes. See generally State v. Hairston, 118 Ohio St.3d 289 , 2008-Ohio-2338 , 888 N.E.2d 1073 , at ¶25 (“Although Foster ehminated judicial fact-finding, courts have not been relieved of the obligation to consider the overriding purposes of felony sentencing, the seriousness and recidivism factors, or the other relevant considerations set forth in R.C. 2929.11, 2929.12, and 2929.13. When imposing sentence, courts must be faithful to the law, must not be swayed by public clamor, media attention, fear of criticism, or partisan interest, and must be mindful of the obligation to treat litigants and lawyers with dignity and courtesy”); State v. Bates, 118 Ohio St.3d 174 , 2008-Ohio-1983 , 887 N.E.2d 328, at ¶ 18 (“The severance * * * of former R.C. 2929.14(E)(4) and former R.C. 2929.41(A) in their entirety by Foster * * * leaves no statute to establish in the circumstances before us presumptions for concurrent and consecutive sentencing or to limit trial court discretion beyond the basic ‘purposes and principles of sentencing’ provision articulated and set forth in R.C. 2929.11 and 2929.12”).
{¶ 37} In State v. Adams (1988), 37 Ohio St.3d 295 , 525 N.E.2d 1361 , at paragraph three of the syllabus, this court held that “[a] silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12.” However, the holding in Adams was implicitly overruled by State v. Arnett (2000), 88 Ohio St.3d 208, 215 , 724 N.E.2d 793 , in which Justice Cook stated, “[T]he sentencing judge could have satisfied her duty under R.C. 2929.12 with nothing more than a rote recitation that she had considered the applicable [factors].” Since R.C. 2929.11 and 2929.12 require the court to consider certain issues and factors, and in light of this court’s holding in Arnett , a judgment entry devoid of any reference to R.C. 2929.11 and 2929.12 would be contrary to law. Thus, R.C. 2953.08(A)(4) and (G)(2) would permit the appellate court to “increase, reduce, or otherwise modify a sentence that is appealed under this section or * * * vacate the sentence and remand the matter to the sentencing court for resentencing.”
{¶ 38} Furthermore, under R.C. 2929.11, the court’s consideration of the sentence could be reviewed under the clear-and-convincing-evidence standard. Just as appellate courts previously reviewed the evidence under R.C. 2929.14(B), (C), and (E)(4) under the clear-and-convincing-evidence standard specified in R.C. *31 2953.08(G), they can just as easily review any evidence introduced in support of, or in opposition to, R.C. 2929.11(B) as it relates to the seriousness of the crime and sentences imposed for similar offenses. However, I believe that a different result is reached when the appellant challenges the trial court’s consideration of the factors enumerated in R.C. 2929.12. This is so because the statute specifically grants the trial court discretion in its consideration. Although the dissent believes the language of R.C. 2953.08(G) to be unambiguous in requiring review to determine whether the sentence is clearly and convincingly contrary to law, the meaning is not so clear when read in pari materia with R.C. 2929.12, which sets forth its own standard of review: an abuse of discretion.
{¶ 39} Prior to their severance, R.C. 2929.14(B), (C), and (E)(4) did not establish a separate standard of review. In other words, those statutes did not grant the trial courts discretion in making the findings necessary to impose nonminimum, maximum, or consecutive sentences. Without specific language indicating a different standard of review, the standard found in R.C. 2953.08(G) was appropriate.
{¶ 40} A common rule of statutory interpretation requires that a specific statute prevail over a general statute. See generally State v. Taylor, 113 Ohio St.3d 297 , 2007-Ohio-1950 , 865 N.E.2d 37 , at ¶ 14 (holding that R.C. 2925.11, which prescribes specific sentences, controls over the more general sentencing statutes). A statute setting forth its own standard of review contrary to the standard of review found in a more general statute is no different than a statute setting forth specialized punishments, which would take precedence over a general sentencing statute.
{¶ 41} Additionally, this court has held that a trial court’s findings under R.C. 2929.12 would not be reversed absent an abuse of discretion. See State v. Arnett, 88 Ohio St.3d at 217 , 724 N.E.2d 793 .
{¶ 42} In my opinion, R.C. 2953.08(G) is not, and has never been, applicable to R.C. 2929.12(B) through (D). However, R.C. 2953.08(G) is, and has always been, applicable to R.C. 2929.11. R.C. 2953.08(G) is also applicable to R.C. 2929.12 only insofar as reviewing whether the trial courts bothered to consider the factors of divisions (B) through (D). If they did consider the factors of divisions (B) through (D), then their consideration of these factors is reviewed under an abuse-of-discretion standard, since they are specifically indicated by R.C. 2929.12 to be discretionary. While I believe that the dissent’s view is overly broad in its application and overlooks the standard established by R.C. 2929.12, I also believe that the plurality’s new “two-step” test is overly broad by requiring appellate courts to conduct a double review. Accordingly, I concur in judgment only.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6793295. Public record. Not legal advice.