State v. King , 2019 Ohio 1492 ( 2019 )

[Cite as State v. King, 2019-Ohio-1492.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-05-101
: OPINION
- vs - 4/22/2019
:
RICKY DA'ANTHONY KING, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2017-11-1861
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Michele Temmel, 6 S. Second Street, #305, Hamilton, Ohio 45011, for appellant
RINGLAND, J.
{¶ 1} Appellant, Ricky Da'Anthony King, appeals the sentence he received after he
was convicted of aggravated possession of drugs in the Butler County Court of Common
Pleas. For the reasons stated below, we affirm his sentence.
{¶ 2} In December 2017, appellant was indicted for three felony drug offenses and
one misdemeanor drug offense. The charges resulted from an investigation in which police
officers found appellant unlawfully possessed hundreds of oxycodone pills and a small
Butler CA2018-05-101
amount of cocaine. At the time appellant was charged with these offenses, he had been
placed under supervised probation as part of an intervention in lieu of conviction program
("ILC") for separate felony offenses. As a result of the instant drug offense charges,
appellant's probation officer filed a notice of ILC violation.
{¶ 3} The court held a consolidated hearing in March 2018 as both a pretrial hearing
for the instant drug offenses and a probation violation hearing for the ILC. At this hearing,
appellant pled guilty to one second-degree felony count of aggravated possession of drugs,
in violation R.C. 2925.11(A), and admitted to the ILC violation. In exchange for the guilty
plea, the state dismissed the other three drug offenses. The trial court ordered a
presentence-investigative report and continued both cases to April 2018 for sentencing.
{¶ 4} At the April hearing, the trial court sentenced appellant to a six-year mandatory
prison term for the aggravated possession conviction. On the ILC case, the court found
appellant was no longer amenable to community control and imposed a prison sentence.
The court ordered the prison sentences for each case to be served concurrently.
{¶ 5} Appellant now appeals his sentence for aggravated possession of drugs raising
one assignment of error:1
{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT
FAILED TO CONSIDER THE SERIOUSNESS AND RECIDIVISM FACTORS ENUMERATED
IN R.C. 2929.12 BEFORE IMPOSING A SIX YEAR TERM IN THE OHIO DEPARTMENT OF
CORRECTIONS.
{¶ 7} Appellant argues that this court should vacate his sentence and remand for re-
sentencing because the trial court failed to explicitly state at the sentencing hearing that it
considered the seriousness and recidivism factors of R.C. 2929.12 when it sentenced him for
1. We note that only the aggravated possession conviction, Case No. CR 2017-11-1861, is before this court on
appeal.
-2-
Butler CA2018-05-101
the aggravated drug possession conviction.
{¶ 8} We review a felony sentence according to R.C. 2953.08(G)(2). State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to R.C. 2953.08(G)(2), an
appellate court may modify or vacate a felony sentence only when it finds the sentence is
clearly and convincingly contrary to law or unsupported by the record. State v. McGowan,
147 Ohio St. 3d 166, 2016-Ohio-2971, ¶ 1, citing Marcum at ¶ 7. The standard of R.C.
2953.08(G)(2) does not require the trial court to have clear and convincing evidence on the
record to support the sentence; instead, this standard serves to restrict appellate review.
State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 8. Appellate
review of felony sentencing is highly deferential to the trial court. Id.; Accord Marcum at ¶ 23.
{¶ 9} Pursuant to R.C. 2929.12, the trial court must consider several factors relating
to the seriousness of the offense and the offender's likelihood of committing future crime
before sentencing an offender. These factors serve as guideline to aid the trial court in
determining the severity of the sentence. However, as we have previously held,
there is no statutory or common law requirement that the trial
court incorporate any specific findings in its sentencing entry
specific to the principles and purposes of sentencing, as well as
the seriousness and recidivism factors found in R.C. 2929.11
and R.C. 2929.12. Instead, the law only requires that the record
demonstrate that the trial court properly considered the purposes
and principles of sentencing as well as the seriousness and
recidivism factors of R.C. 2929.11 and R.C. 2929.12.
(Citation omitted.) (Emphasis sic.) State v. Van Tielen, 12th Dist. Brown No.
CA2015-09-025, 2016-Ohio-1288, ¶ 14.
{¶ 10} Consideration of these statutory provisions can be demonstrated in the record
when, at the sentencing hearing, the court states it has "considered the principles and
purposes of Ohio's sentencing statute." State v. Ballard, 12th Dist. Butler No. CA2014-09-
197, 2015-Ohio-2084, ¶ 9. A reference to the seriousness and recidivism factors and citation
-3-
Butler CA2018-05-101
to R.C. 2929.12 within the sentencing entry will further indicate the trial court made the
necessary considerations. Id.; State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-
Ohio-4822, ¶ 11; State v. Lancaster, 12th Dist. Butler No. CA2007-03-075, 2008-Ohio-1665,
¶ 4.
{¶ 11} As noted above, the trial court sentenced appellant for two separate cases.
The court began by sentencing for the case involving the ILC violation. The court specifically
stated, "the Court has considered the purposes and principles of sentencing, weight of
recidivism, and the seriousness factors," before imposing the sentence.
{¶ 12} Turning to the instant case, the trial court reiterated that it "considered the
purposes and principles of sentencing carries a mandatory prison sentence (sic)." Finally,
the trial court expressed its consideration in the sentencing entry:
The Court has considered * * * the principles and purposes of
sentencing under Ohio Revised Code Section 2929.11, and has
balanced the seriousness and recidivism factors of Ohio Revised
Code Section 2929.12 * * *.
{¶ 13} Given the statements made at the sentencing hearing and in the sentencing
entry, the record clearly indicates the trial court considered R.C. 2929.12 sentencing factors.
Consequently, appellant cannot show by clear and convincing evidence that the sentence is
unsupported by the record or contrary to law. Appellant's sole assignment of error is
overruled.
{¶ 14} Judgment Affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
-4-