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Date: 07-06-2020

Case Style:


Case Number: 17-19-19

Judge: Vernon L Preston


Plaintiff's Attorney: William R. Zimmerman

Defendant's Attorney:

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{¶2} On January 31, 2019, the Shelby County Grand Jury indicted Smith on
one count of failure to provide notice of a change of address in violation of R.C.
2950.05(F)(1), a third-degree felony.1
(Doc. No. 3). On May 2, 2019, Smith
appeared for arraignment and pleaded not guilty to the count of the indictment.
(Doc. No. 20).
{¶3} A change of plea hearing was held on July 15, 2019. (July 15, 2019 Tr.
at 3-4). At the hearing, Smith withdrew his previous not guilty plea and pleaded
guilty to an amended count of fourth-degree felony failure to provide notice of a
change of address. (Id. at 3-4, 13); (Doc. Nos. 52, 53). The trial court accepted
Smith’s guilty plea, found him guilty, and ordered a presentence investigation
report. (July 15, 2019 Tr. at 13-14).
{¶4} On September 10, 2019, the trial court sentenced Smith to 17 months in
(Doc. No. 82).

Smith was previously convicted of third-degree felony gross sexual imposition in Shelby County Common
Pleas Court case number 16CR00094. (Doc. No. 3). As a result, the related offense in the instant case was
charged as a third-degree felony. See R.C. 2950.99(A)(1)(a)(ii). 2
On November 6, 2019, the trial court filed an amended judgment entry of sentence correcting a
typographical error in the spelling of Smith’s first name. (Doc. No. 107).
Case No. 17-19-19
{¶5} Smith filed his notice of appeal on October 7, 2019. (Doc. No. 97). He
raises one assignment of error for our review.
Assignment of Error
The trial court erred in imposing the sentence upon Appellant.
{¶6} In his assignment of error, Smith argues that the trial court erred by
sentencing him to 17 months in prison. Smith maintains that the record does not
support the trial court’s sentence and that his sentence “is clearly and convincingly
contrary to law because the trial court engaged in ‘minimal discussion’ regarding
the sentencing factors and focused too heavily on punishing the offender under
[R.C. 2929.11(A)].” (Appellant’s Brief at 5).
{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
{¶8} “‘Trial courts have full discretion to impose any sentence within the
statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶
Case No. 17-19-19
9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing
State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. As a fourthdegree felony, failure to provide notice of a change of address carries a sanction of
6 to 18 months’ imprisonment. R.C. 2950.99(A)(1)(a)(ii); R.C. 2929.13(B)(2) (Oct.
31, 2018) (current version at R.C. 2929.13(B)(2) (Oct. 17, 2019)); R.C.
2929.14(A)(4) (Oct. 31, 2018) (current version at R.C. 2929.14(A)(4) (Mar. 22,
{¶9} In this case, Smith was sentenced to 17 months’ imprisonment.
Accordingly, the trial court’s sentence is within the statutory range. “‘[A] sentence
imposed within the statutory range is “presumptively valid” if the [trial] court
considered applicable sentencing factors.’” State v. Nienberg, 3d Dist. Putnam Nos.
12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 10, quoting State v. Maggette, 3d Dist.
Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31, quoting State v. Collier, 8th Dist.
Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.
{¶10} R.C. 2929.11 provides, in pertinent part, that the “overriding purposes
of felony sentencing are to protect the public from future crime by the offender and
others, to punish the offender, and to promote the effective rehabilitation of the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” R.C. 2929.11(A). To achieve the overriding purposes of felony
Case No. 17-19-19
sentencing, R.C. 2929.11 directs courts to “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.”
Id. In addition, R.C. 2929.11(B) instructs that a sentence imposed for a felony “shall
be reasonably calculated to achieve the three 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 committed by similar offenders.” “In accordance with
these principles, the trial court must consider the factors set forth in R.C.
2929.12(B)-(E) relating to the seriousness of the offender’s conduct and the
likelihood of the offender’s recidivism.” Smith at ¶ 10, citing R.C. 2929.12(A). “‘A
sentencing court has broad discretion to determine the relative weight to assign the
sentencing factors in R.C. 2929.12.’” Id. at ¶ 15, quoting State v. Brimacombe, 195
Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio
St.3d 208, 215 (2000).
{¶11} From the record, it is clear that the trial court sentenced Smith after
considering the overriding purposes of felony sentencing set forth in R.C.
2929.11(A) and the relevant R.C. 2929.12(B)-(E) factors. First, at the sentencing
hearing, the trial court noted that it had “considered the purposes and the principles
of sentencing under 2929.11 and the seriousness and the recidivism factors under
Case No. 17-19-19
2929.12.” (Sept. 10, 2019 Tr. at 6). Furthermore, in its judgment entry of sentence,
the trial court stressed that it had “considered * * * the principles and purposes of
sentencing under Ohio Revised Code Section 2929.11” and “balanced the
seriousness and recidivism factors of Ohio Revised Code Section 2929.12.” (Doc.
No. 82). Nevertheless, Smith argues that the trial court did not satisfy its duties
under the sentencing statutes because “the Judgment Entry of Sentencing, as well
as the communication between [Smith] and the trial court, shows a lacking of any
discussion as to whether or not the trial court weighed the * * * seriousness of his
conduct pursuant to [R.C.] 2929.12, as well as * * * [the] recidivism factors.” (See
Appellant’s Brief at 8). Smith’s argument is without merit. “A trial court’s
statement that it considered the required statutory factors, without more, is sufficient
to fulfill its obligations under the sentencing statutes.” Maggette at ¶ 32, citing State
v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-Ohio-4570, citing State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. Therefore, the record establishes that
the trial court fulfilled its obligation to consider R.C. 2929.11 and 2929.12 when it
sentenced Smith.
{¶12} Moreover, the record supports the trial court’s sentence. Given the
nature of the instant offense, many of the R.C. 2929.12(B)-(E) factors do not apply.
However, it is clear that some of the factors do apply to Smith and that the trial court
was aware of and considered evidence corresponding to the applicable factors.
Case No. 17-19-19
First, the trial court was aware of both Smith’s considerable juvenile history and his
history of adult criminal convictions, and the trial court expressly referenced this
history in settling on an appropriate sentence. (Sept. 10, 2019 Tr. at 6-7); (PSI at 2-
5). See R.C. 2929.12(D)(2). In addition, the trial court recognized that Smith
committed the instant offense while he was on post-release control for his 2016
gross-sexual-imposition conviction. (Sept. 10, 2019 Tr. at 7); (PSI at 5). See R.C.
2929.12(D)(1). Finally, the record contains evidence relevant to R.C.
2929.12(C)(4), (D)(5), and (E)(5)—the factors dealing with whether there are
“substantial grounds to mitigate [Smith’s] conduct, although the grounds are not
enough to constitute a defense” and whether Smith expressed genuine remorse for
his offense. At the sentencing hearing, Smith apologized for his offense and
explained that “[a]t the time, [he] was * * * getting high and stuff and wasn’t in the
right state of mind because of losing family members and stuff.” (Sept. 10, 2019
Tr. at 5). Thus, the trial court was able to assess whether Smith was sincerely
remorseful and whether Smith’s professed drug problem and difficulties brought on
by the loss of family members substantially mitigated his conduct. Ultimately, the
trial court had broad discretion to determine the relative weight to assign the R.C.
2929.12 factors, and on this record, we cannot find any fault in the trial court’s
decision to afford greater weight to the aggravating factors than to the mitigating
Case No. 17-19-19
{¶13} In conclusion, the trial court properly considered the purposes and
principles of felony sentencing and applied the relevant R.C. 2929.12 factors.
Furthermore, Smith’s sentence is within the statutory range. Therefore, there is not
clear and convincing evidence that Smith’s sentence is unsupported by the record
or that his sentence is otherwise contrary to law. See Nienberg, 2017-Ohio-2920, at
¶ 23.
{¶14} Smith’s assignment of error is overruled.

Outcome: Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.

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