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Appellant was subsequently indicted on one count each of attempted murder,
felonious assault, aggravated robbery, and aggravated burglary, and two counts of
kidnapping. On February 19, 2019, appellant pled guilty to a first-degree felony count of
complicity to aggravated burglary. The other five counts were dismissed. A sentencing
hearing was scheduled for April 23, 2019, and the trial court ordered that a presentenceinvestigative report ("PSI") be prepared. At the sentencing hearing, the trial court heard
from the state, a detective, defense counsel, and appellant.
{¶ 4} Defense counsel discussed that appellant was remorseful for the harm
inflicted upon the victim, believed the victim might not be home during the burglary, did not
anticipate what ultimately occurred, and accepted responsibility for his role in the crime.
Appellant apologized for what happened to the victim and expressed remorse for his
actions.
{¶ 5} The detective testified that appellant helped police apprehend Winston. The
detective further expressed his belief that appellant's remorse was sincere. However, the
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detective also emphasized that appellant spent a lot of time denying responsibility and
minimizing his role in the crime, and that were it not for videotaped and other evidence,
appellant would likely have continued to deny responsibility. The state requested that
appellant be sentenced to 11 years in prison, the maximum prison term for a first-degree
felony. In support of its request, the state emphasized appellant's pivotal role in planning
the burglary, dropping off the two codefendants at the victim's home, and providing help to
Winston once the burglary was over. The state further emphasized appellant's knowledge
that Downing was a dangerous and violent individual who, prior to the burglary, had talked
about beating the victim.
{¶ 6} After reviewing the PSI and the victim's impact statement and considering the
information presented at the sentencing hearing, the trial court sentenced appellant to nine
years in prison. The trial court considered the purposes and principles of felony sentencing
and found that appellant's conduct was more serious because he had taken advantage of
the victim's trust and their relationship to facilitate the burglary. The trial court further noted
appellant's extensive criminal history dating back to 1982 and the several prison terms he
had served without avail in modifying his criminal behavior.
{¶ 7} Appellant now appeals, raising one assignment of error:
{¶ 8} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY
SENTENCING APPELLANT.
{¶ 9} Appellant argues the trial court erred in sentencing him to nine years in prison.
{¶ 10} An appellate court reviews the imposed sentence according to R.C.
2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court does not review the
sentencing court's decision for an abuse of discretion. Id. at ¶ 10. Rather, R.C.
2953.08(G)(2) provides that an appellate court can modify or vacate a sentence only if the
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appellate court finds 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.
{¶ 11} A sentence is not clearly and convincingly contrary to law where the trial court
"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, properly imposes postrelease control, and sentences the defendant within the
permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-
Ohio-2890, ¶ 8. Thus, this court may increase, reduce, or otherwise modify a sentence only
when it clearly and convincingly finds that the sentence is either contrary to law or
unsupported by the record. Marcum at ¶ 7.
{¶ 12} Appellant's nine-year prison sentence is not clearly and convincingly contrary
to law as the trial court considered the R.C. 2929.11 principles and purposes of sentencing
and the seriousness and recidivism factors of R.C. 2929.12, properly imposed postrelease
control, and imposed a sentence within the permissible statutory range for a felony of the
first degree in accordance with R.C. 2929.14(A)(1)(b). While the trial court did not
specifically cite R.C. 2929.12 during the sentencing hearing, it expressly stated in its April
23, 2019 sentencing entry that it had "balanced the seriousness and recidivism factors
pursuant to Ohio Revised Code Section 2929.12."1 Thus, appellant's sentence is not
contrary to law. State v. Back, 2d Dist. Clark No. 2013-CA-62, 2014-Ohio-1656, ¶ 14; see
also State v. Ballard, 12th Dist. Butler No. CA2014-09-197, 2015-Ohio-2084, ¶ 9 (affirming
a sentence where the trial court failed to cite R.C. 2929.11 or 2929.12 during the sentencing
hearing but stated in its judgment entry of conviction that it had considered the principles

1. We note that the R.C. 2929.12 seriousness and recidivism factors are not in addition to the R.C. 2929.11
purposes and principles of felony sentencing but are employed to guide a trial court's consideration of the
purposes and principles of felony sentencing.
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and purposes of sentencing pursuant to R.C. 2929.11 and balanced the seriousness and
recidivism factors pursuant to R.C. 2929.12).
{¶ 13} Appellant challenges his nine-year prison sentence, arguing that the trial court
did not "truly consider" the principles and purposes of felony sentencing under R.C. 2929.11
and the seriousness and recidivism factors in R.C. 2929.12. Appellant asserts that the trial
court should have imposed a shorter sentence, given his expressed remorse, the fact he
was not present during the burglary and did not expect the victim to be harmed, the fact his
prior criminal history does not involve harm to others, his life-long substance abuse issues,
and his assistance in helping police apprehend Winston.
{¶ 14} It is well established that when sentencing a defendant, "a trial court is not
required to consider each sentencing factor, but rather to exercise its discretion in
determining whether the sentence satisfies the overriding purpose of Ohio's sentencing
structure." State v. Abrams, 12th Dist. Clermont Nos. CA2017-03-018 and CA2017-03-019,
2017-Ohio-8536, ¶ 14. The factors set forth in R.C. 2929.12 are nonexclusive, and R.C.
2929.12 explicitly allows a trial court to consider any relevant factors in imposing a
sentence. Id.
{¶ 15} The June 5, 2018 burglary was the result of planning and deliberation based
upon appellant's long-standing relationship with the victim. Appellant conceived the idea
for the burglary, planned its details, and played a pivotal role in carrying out the offense by
dropping off his two codefendants at the victim's home and later picking up Winston and
accompanying him to convert some of the burglary proceeds to cash. Appellant clearly took
advantage of the victim's trust and their relationship to facilitate the burglary.
{¶ 16} While appellant expressed remorse for his actions and what happened to the
victim, he did not accept responsibility for his role until he was ultimately confronted with
videotaped and other evidence. Further, while appellant claimed he did not anticipate what
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ultimately occurred and did not want the victim to get hurt, he knew that Downing was a
violent and dangerous individual who, prior to the burglary, had expressed his intent to beat
the victim. Despite this knowledge, appellant facilitated Downing's encounter with the victim
under circumstances fraught with a risk of violence. As a result of the burglary, the victim
suffered serious injuries that required a lengthy hospitalization and several days in
rehabilitation. The serious nature of appellant's offense supports the trial court's sentencing
decision.
{¶ 17} The court's sentencing decision is further supported by appellant's extensive
criminal history which dates to 1982. That year, appellant was adjudicated a delinquent
child in Arkansas in a theft and escape case and was sentenced to a 16-year prison term.
In addition to his juvenile record, appellant's adult criminal record consists of numerous
convictions and prison terms, including convictions for theft and drug offenses and a 1997
conviction for aggravated vehicular homicide for which he served five years in prison,
followed by convictions for operating a vehicle under the influence of alcohol in 2001 and
2004. Though appellant has been repeatedly penalized for his past criminal behavior, his
criminal record plainly demonstrates his inability to modify his behavior and learn from past
mistakes. As the trial court noted, despite his numerous opportunities to turn his life around,
appellant continues to resort to quick fixes, substance abuse, and criminality at age 52. And
while his prior criminal record does not involve offenses of violence, the June 5, 2018
burglary represents an escalation and a disturbing portent of appellant's future behavior.
{¶ 18} Appellant simply disagrees with the trial court's analysis and its balancing of
the relevant factors in both R.C. 2929.11 and 2929.12. But, as this court has stated
previously, "[t]he trial court, in imposing a sentence, determines the weight afforded to any
particular statutory factors, mitigating grounds, or other relevant circumstances." State v.
Steger, 12th Dist. Butler No. CA2016-03-059, 2016-Ohio-7908, ¶ 18; State v. Liming, 12th
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Dist. Clermont Nos. CA2018-05-028 and CA2018-05-029, 2019-Ohio-82, ¶ 33. The fact
that the trial court chose to weigh various sentencing factors differently than how appellant
would have weighed them does not mean the trial court erred in imposing appellant's
sentence. Liming at ¶ 33.
{¶ 19} In light of the foregoing, because the trial court properly considered the
necessary sentencing statutes, R.C. 2929.11 and 2929.12, and because appellant's
sentence is not contrary to law or unsupported by the record, we find no error in the trial
court's decision to sentence appellant to serve nine years in prison as a result of his guilty
plea to complicity to aggravated burglary, a first-degree felony.
{¶ 20} Appellant further argues that the trial court erred by failing to notify him during
sentencing that he was forbidden from taking drugs and was required to submit to random
drug testing pursuant to R.C. 2929.19(B)(2)(f), or that he was required to submit to DNA
testing pursuant to R.C. 2901.07(B) as a result of his felony conviction.
{¶ 21} We have previously addressed such arguments and found them to be without
merit in State v. Setty, 12th Dist. Clermont No. CA2014-09-068, 2015-Ohio-2012, ¶ 14;
State v. Chisenhall, 12th Dist. Clermont Nos. CA2015-07-055 and CA2015-07-063, 2016-
Ohio-999, ¶ 37-39; and Abrams, 2017-Ohio-8536 at ¶ 23. For the reasons set forth in Setty
and Chisenhall, we find that any error that resulted from the trial court's failure to provide
the advisements set forth in R.C. 2929.19(B)(2)(f) and 2901.07(B) was harmless.
{¶ 22} Appellant's assignment of error is overruled.

Outcome: } Judgment affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: