State v. McCauley , 2020 Ohio 2813 ( 2020 )

[Cite as State v. McCauley, 2020-Ohio-2813.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 19-CA-84
:
DENNIS MCCAULEY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 19CA232
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 5, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES WILLIAM T. CRAMER
LICKING CO. PROSECUTOR 470 Olde Worthington Rd., Ste 200
PAULA M. SAWYERS Westerville, OH 43082
20 S. Second St., Fourth Floor
Newark, OH 43055
Licking County, Case No. 19-CA-84 2
Delaney, J.
{¶1} Appellant Dennis McCauley appeals from the August 23, 2019 Judgment
Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The parties agree to the following statement of the facts and procedural
history.
{¶3} A parole-violator-at-large warrant existed for appellant’s arrest. Two parole
officers, Thoms and Bailey, picked up appellant and his girlfriend, Paulleana Smith, on
March 28, 2019. Appellant provided a home address of 51 North Fourth Street,
Apartment D, Newark, and the parole officers transported appellant and Smith to the
residence.
{¶4} Officers searched the residence and Thoms found a small bag containing a
little over half a gram of methamphetamine. The bag was found wrapped inside a “do-
rag” or “wave cap” found between the television and a DVD player in the living room.
Thoms saw appellant wearing a similar cap on a prior occasion.
{¶5} Bailey found small empty baggies matching that found by Thoms. Bailey
also recovered what appeared to be an “owe list,” typically documenting money owed to
drug dealers. The spare baggies and “owe list” were found in a nightstand drawer in the
bedroom. Bailey also found a baggie containing residue hidden in a speaker on a table
beside the bed. Finally, officers recovered three cell phones and $1600 cash. Upon
finding the methamphetamine, officers concluded the search without searching the
kitchen.
Licking County, Case No. 19-CA-84 3
{¶6} Appellant and Smith were both present during the search. Appellant was
asked whether there were drugs in the house before the search and said no. Smith said
she didn’t live there, but refused to leave when given an opportunity to do so. Appellant
and Smith were both agitated during the search. As the officers began to discover items,
appellant and Smith both became argumentative, and Smith became physically
disruptive. As a result, officers handcuffed both. Appellant told the officers that the “do-
rag” was his, but claimed that the methamphetamine found in it belonged to a prostitute
he hired earlier that day. Appellant said the “owe list” was his and the room where it was
found was his bedroom. Appellant did not claim that anyone else lived with him.
{¶7} Thoms and Bailey testified that a violator-at-large warrant is intended to find
an offender and determine his residence, and that arrest is not required. The officers
decided to arrest appellant, however, upon finding the drugs in his home.
{¶8} Detective Green was present for the March 28 search to collect evidence.
He testified that based on his experience, the amount of baggies and the “owe list”
indicate someone was dealing methamphetamine.
{¶9} On April 1, 2019, Detective Conley listened in on a conversation between
appellant and Smith. A partial recording of the conversation was played for the jury.
Conley recognized the voices on the recording as appellant and Smith. Conley heard
appellant say, “I have 14 in the house,” and refer to an “oven mitt.” Conley presumed
appellant was referring to 14 grams of some drug and obtained a search warrant for
appellant’s residence.
{¶10} Green testified that Conley told him about the phone call and he told Conley
to get a warrant. While Conley was getting the warrant, Green obtained keys for the
Licking County, Case No. 19-CA-84 4
apartment. Green executed the search warrant and found the drugs exactly where
appellant told Smith to look: under the sink by the ice cream cup in a blue oven mitt. The
oven mitt contained a larger bag that contained four smaller bags of methamphetamine.
The weight as measured in the field was a little over 8 grams.
{¶11} Although they did not recover 14 grams, Conley testified that he listened to
the rest of the recording after the search and heard appellant also mention a silver glasses
case. Conley presumed that the other methamphetamine was in the glasses case, but
the remaining drugs were never recovered. Conley was positive that Smith did not access
the house and remove them prior to the search.
{¶12} Green testified that the apartment had been secured following the first
search and the building was being watched. Nonetheless, Green was unable to say for
certain that Smith did not get the other drugs. Green testified that they were not guarding
the apartment and did not see Smith when they returned to watch the building. Green
speculated that “14” could be code for a quarter of an ounce or seven grams, which was
approximately what was found.
{¶13} After the warrant was executed and drugs were found, Conley interviewed
appellant. Appellant told Conley that he sold drugs from his residence, that Smith
transported drugs for him, and that he owed his dealer for some of the methamphetamine
that the police recovered from his residence. Appellant identified his dealer and indicated
that the dealer generally fronted him an ounce at a time. Appellant said he was just
dealing drugs to supplement his income until he began receiving social security disability.
{¶14} Green testified that he had never met appellant before, but had been
hearing his name from informants on the streets for a couple of months. Green had never
Licking County, Case No. 19-CA-84 5
met Smith before, either, and knew nothing about her. During the March 28th search,
Smith told Green that she was a recovering addict who had quit using because she was
pregnant.
{¶15} The drugs recovered from the March 28th search tested positive as
methamphetamine and weighed .661 grams. The drugs recovered from the April 1st
search also tested positive as methamphetamine.
{¶16} Appellant testified in his own defense. He admitted a prior felony conviction
for breaking and entering, and that he was on post-release control after serving a prison
term. Appellant also testified to receiving social security disability.
{¶17} Appellant testified that he had a relationship with Smith, she was pregnant
with his child, and he gave her a place to stay. Appellant was furious with Smith over her
drug use because he did not want his child born addicted. Smith used drugs several
times a day. Smith had 8 other children, but did not have custody of any of them due to
her addiction. Appellant kept trying to hide drugs from Smith, but she would get abusive
without them and even tried to stab him.
{¶18} Appellant was afraid that Smith had tried to manipulate him. She was seven
months pregnant when appellant was arrested, but he had not heard from her since the
April 1st conversation. Appellant heard rumors that she had been in trap houses and
thought she may have been working for police to set him up. Appellant claimed Smith
was trafficking drugs and he tried to stop it; she would bring bundles of clothes and bags
to his house, though, and he was unable to search all of it. Appellant never turned Smith
in because he didn’t want to lose his child. Appellant said he hid the drugs rather than
dispose of them because her drug supplier would have retaliated against her.
Licking County, Case No. 19-CA-84 6
{¶19} Appellant testified he last used drugs when he went to prison 4 years earlier.
Appellant was to be released from post-release control early because he was consistently
testing clean.
{¶20} Appellant testified there was some confusion over the summer of 2018 as
to his supervision status. Appellant said that his supervisory officer said he was doing
good, so he only needed to call or text once a month. And in June 2018, appellant signed
paperwork for early release from supervision, but never heard back. Appellant kept
calling and texting his supervisory officer through December 2018 without getting any
response. When these incidents occurred in March and April of 2019, appellant
purportedly was not sure if he was still under supervision.
{¶21} Appellant testified that the jury didn’t hear the entire recording of his call
with Smith. He said that during the first part of the call, Smith was begging him for drugs
and asking him where they were because she was sick and needed to get high. Appellee
only played the recording from the point where appellant finally gave in to Smith’s
demands. Appellant admitted he knew the conversation was being recorded and that he
was speaking in code when he used “14” to refer to the drugs. Appellant meant that there
was a quarter of an ounce in the house.
{¶22} Appellant denied telling law enforcement that he was using or selling drugs.
However, appellant admitted telling police they were his drugs. He said he did it to protect
Smith and his baby.
{¶23} Appellant testified that it was Smith who had the relationship with the drug
supplier and had two children with him. The supplier would text Smith and tell her to
come out front, and then drop off the drugs with her. The supplier also gave her the
Licking County, Case No. 19-CA-84 7
baggies and would give her an extra bag of drugs, usually heroin, for her personal use.
Smith had scales that she used to weigh the drugs that she kept in the coffee table drawer.
{¶24} Conley admitted Smith was a known drug addict and drug dealer, but
denied that she was an informant for him. Conley admitted that the drugs could have
been Smith’s and appellant was covering for her. Furthermore, Thoms admitted that they
never questioned Smith about the methamphetamine during the initial search because
they were not there because of her and she claimed she was just visiting.
{¶25} Appellant was charged by indictment with one count of aggravated
trafficking in drugs (methamphetamine) pursuant to R.C. 2925.11(A)(C)(1)(a) [Count I], a
felony of the fifth degree; one count of aggravated trafficking in drugs (methamphetamine)
pursuant to R.C. 2925.11(A)(C)(1)(b) [Count II], a felony of the third degree; and one
count of aggravated trafficking in drugs (methamphetamine) pursuant to R.C.
2925.11(A)(2)(C)(1)(c) [Count III], a felony of the third degree.
{¶26} Appellant entered pleas of not guilty and filed a motion to suppress
evidence seized from his apartment pursuant to a search warrant and custodial
statements made by appellant. Appellee responded with a memorandum in opposition
and the matter proceeded to evidentiary hearing on June 25, 2019. On June 27, 2019,
the trial court overruled the motion to suppress by judgment entry.
{¶27} The matter proceeded to trial by jury and appellant was found guilty as
charged. Appellant requested a pre-sentence investigation but the trial court proceeded
to immediate sentencing. The trial court found Counts II and III merged for purposes of
Licking County, Case No. 19-CA-84 8
sentencing and appellee elected to sentence upon Count II. The trial court thereupon
sentenced appellant to a total aggregate prison term of 4 years.1
{¶28} Appellant now appeals from the trial court’s judgment of conviction and
sentence.
{¶29} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
“I. APPELLANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL
INTENTIONALLY ELICITED INFORMATION ABOUT APPELLANT’S CRIMINAL
HISTORY.”
“II. THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO
ORDER A PRESENTENCE INVESTIGATION PRIOR TO IMPOSING
SENTENCE.”
“III. CLEAR AND CONVINCING EVIDENCE DEMONSTRATES THAT
THE RECORD DOES NOT SUPPORT MAXIMUM PRISON TERMS.”
ANALYSIS
I.
{¶30} In his first assignment of error, appellant argues he received ineffective
assistance of counsel because defense trial counsel introduced evidence of his prior
convictions. We disagree.
1 Appellant was sentenced to a prison term of 1 year upon Count I and 3 years upon Count
II, to be served concurrently. The trial court imposed an additional 1-year term for
appellant’s violation of post-release control.
Licking County, Case No. 19-CA-84 9
{¶31} The issue of admission of appellant’s post-release control status and his
prior convictions was addressed before trial. The trial court cautioned appellee to avoid
both topics, which was challenging because the case arose from a parole search.
Appellee agreed, however, to avoid both topics in its case-in-chief; when the parole
officers were questioned upon direct examination, for example, they referred to
themselves generically as “law enforcement officers.”
{¶32} Appellant asserts, though, that defense trial counsel negated these efforts
altogether by asking Thoms about the violator-at-large warrant and whether appellant
went to the probation office before the search upon cross-examination. Defense trial
counsel also asked Thoms about his knowledge of appellant’s post-release control
history, and addressed the same topics with Bailey. Upon cross-examination of Green,
defense trial counsel elicited testimony that Green “heard appellant’s name on the street”
from informants for several months. The cross-examination of Thoms prompted appellee
to ask to approach the bench and to argue appellant opened the door to evidence of his
criminal history. The trial court took a wait-and-see approach. Upon redirect, appellee
asked about the officers about details of appellant’s post-release control supervision.
{¶33} Appellant argues that defense trial counsel’s “opening of the door” to
evidence of his criminal history is ineffective assistance of counsel. To succeed on a
claim of ineffectiveness, a defendant must satisfy a two-prong test. Initially, a defendant
must show that trial counsel acted incompetently. See, Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
Licking County, Case No. 19-CA-84 10
circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at
689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).
{¶34} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶35} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. A court may dispose of a case by considering the
second prong first, if that would facilitate disposal of the case. State v. Bradley, 42 Ohio
St.3d 136, 143, 538 N.E.2d 373 (1989), citing Strickland, 466 U.S. at 697. We note that
a properly licensed attorney is presumed competent. See Vaughn v. Maxwell, 2 Ohio
St.2d 299, 209 N.E.2d 164 (1965); State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905(1999).
{¶36} Further, reviewing courts must refrain from second-guessing strategic
decisions and presume that counsel's performance falls within the wide range of
reasonable legal assistance. State v. Merry, 5th Dist. Stark No. 2011CA00203, 2012-
Ohio-2910, ¶ 42, citing State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
Debatable trial tactics do not establish ineffective assistance of counsel. State v. Wilson,
2018-Ohio-396, 106 N.E.3d 806, ¶ 36 (5th Dist.), citing State v. Hoffner, 102 Ohio St.3d
358, 365, 2004-Ohio-3430, 811 N.E.2d 48 (2004), ¶ 45.
Licking County, Case No. 19-CA-84 11
{¶37} Appellant argues that defense trial counsel provided ineffective assistance
in raising the topics of his post-release control status and criminal history, implying the
evidence would have been otherwise inadmissible. Appellee responds, and we agree,
that due to appellant’s theory of the case, counsel had little choice but to raise the topic
of appellant’s criminal history to maintain credibility. Appellant’s defense was that the
drugs weren’t his. Appellant argued from the beginning of the trial that the drugs belonged
to Smith, even telling the jury in opening statement that he was likely to testify. Key to
this argument was his contention that Smith could not be located to be personally called
as a witness. To advance this theory of the case, appellant had to testify.
{¶38} Knowing that appellant would ultimately testify, therefore, may have led
defense trial counsel to raise the issues of parole status and criminal history directly rather
than risk the appearance of hiding it from the jury. In fact, some appellate courts have
noted that it may be “customary practice for attorneys to disclose a witness' prior felony
convictions on direct,” to the extent that doing so is “preferential.” See, Merry, supra,
2012-Ohio-2910 at ¶ 49, citing State v. Kachovee, 4th Dist. Scioto No. 98CA2562, 1999
WL 38994 (Jan. 25, 1999), appeal not allowed, 85 Ohio St.3d 1486, 709 N.E.2d 1214(1999).
{¶39} It was all but certain from the defense opening statement that appellant
would choose to testify. Upon cross-examination, his criminal past would have been
admissible pursuant to Evid.R. 609. We therefore ascribe defense trial counsel’s decision
to raise the topic as trial strategy. Counsel's arguable strategy may have been to admit
certain acts to lessen their significance to the jury and to bolster appellant's credibility so
that the jury would believe his testimony that the drugs belonged to Smith and not to him.
Licking County, Case No. 19-CA-84 12
Hindsight is not permitted to distort the assessment of what was reasonable in light of
counsel's perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel. State v. Hobbs, 10th Dist. Franklin No. 14AP-225, 2015-Ohio-2419, ¶ 24, citing
State v. Fritz, 163 Ohio App.3d 276, 2005–Ohio–4736, ¶ 18 (2nd Dist.), internal citations
omitted.
{¶40} Furthermore, we note the trial court gave a limiting instruction regarding
appellant’s criminal history. T. 269. We presume the jury followed this
instruction. See State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
1278, ¶ 23, citing State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995); Pang v.
Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990).
{¶41} We therefore find appellant did not receive ineffective assistance of trial
counsel and his first assignment of error is overruled.
II.
{¶42} In his second assignment of error, appellant contends the trial court abused
its discretion in refusing to order a pre-sentence investigation (P.S.I.) before imposing
sentence. We disagree.
{¶43} The decision to order a presentence investigation generally lies within the
sound discretion of the trial court if the court contemplates a prison term and not
community control in sentencing upon a criminal offense. See, State v. Adams, 37 Ohio
St.3d 295, 297, 525 N.E.2d 1361 (1988). A trial court’s decision in this regard will
therefore not be reversed absent an abuse of discretion. “A trial court abuses its
discretion when it makes a decision that is unreasonable, unconscionable, or
Licking County, Case No. 19-CA-84 13
arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013–Ohio–966, 986 N.E.2d 971, ¶ 34.
An abuse of discretion is apparent where the trial court's decision does not reveal a
“‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, 972
N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶44} A P.S.I. is required only when the trial court sentences an offender to a term
of community control. See, State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, ¶ 16
(O'Neill, J. with three Justices concurring in judgment only) [“[a] trial court acts contrary
to law when it imposes a sentence of one or more community-control sanctions on a
felony offender without first ordering and reviewing a presentence investigation report.”].
Ohio Crim. R. 32.2 states in pertinent part:
Unless the defendant and the prosecutor in the case
agree to waive the presentence investigation report, the court
shall, in felony cases, order a presentence investigation and
report before imposing community control sanctions or
granting probation. The court may order a presentence
investigation report notwithstanding the agreement to waive
the report. * * * *.
(Emphasis added).
{¶45} Appellant cites no authority supporting the underlying theory that the trial
court should have ordered a P.S.I. when appellant was sentenced to a prison term, not
community control. Community control was not considered. R.C. 2951.03(A)(2) provides
for the possibility that a felony offender will be sentenced to prison absent preparation of
Licking County, Case No. 19-CA-84 14
a P.S.I. [* * * *. “If a defendant is committed to any institution and a presentence
investigation report is not prepared * * *, the director of the department of rehabilitation
and correction or the director's designee may order that an offender background
investigation and report be conducted and prepared regarding the defendant pursuant to
section 5120.16 of the Revised Code.* * * *].
{¶46} In the instant case, appellant was convicted of three offenses carrying a
presumption of a prison term: two counts of aggravated drug possession pursuant to R.C.
2925.11(A)(C)(1)(b) and one count of aggravated drug trafficking pursuant to R.C.
2925.03(A)(2)(C)(1)(c). Moreover, appellant was on post-release control when he
committed the instant offenses. There is no evidence in the record that the trial court
considered term of community control at any point, and when appellant requested
community control at sentencing, he was flatly denied. T. 291.
{¶47} We find nothing in the record to establish that the trial court’s actions were
unreasonable, unconscionable, or arbitrary. Under the circumstances of the instant case,
the trial court’s decision to decline a P.S.I. was not an abuse of discretion.
{¶48} Appellant’s second assignment of error is overruled.
III.
{¶49} In his third assignment of error, appellant argues his sentence is not
supported by clear and convincing evidence. We disagree.
{¶50} We now review felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Cox, 5th Dist. Licking No. 16-CA-80, 2017-Ohio-5550, ¶ 10,
citing State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶
22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015–Ohio–4049, ¶ 31. R.C.
Licking County, Case No. 19-CA-84 15
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court's findings under R.C. 2929.13(B)
or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to
law. See also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶
28. In the instant case, appellant argues broadly that the record does not support
imposition of maximum terms.
{¶51} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus. “Where the degree of proof required to sustain an issue must be clear
and convincing, a reviewing court will examine the record to determine whether the trier
of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross,
161 Ohio St. at 477.
{¶52} A trial court's imposition of a maximum prison term is not contrary to law as
long as the court sentences the offender within the statutory range for the offense, and in
so doing, considers the purposes and principles of felony sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.
Santos, 8th Dist. Cuyahoga No. 103964, 2016–Ohio–5845, ¶ 12. Although a trial court
must consider the factors in R.C. 2929.11 and 2929.12, there is no requirement that the
court state its reasons for imposing a maximum sentence, or for imposing a particular
sentence within the statutory range. Id. There is no requirement in R.C. 2929.12 that the
trial court states on the record that it has considered the statutory criteria concerning
Licking County, Case No. 19-CA-84 16
seriousness and recidivism or even discussed them. State v. Hayes, 5th Dist. Knox No.
18CA10, 2019-Ohio-1629, ¶ 49, citing State v. Polick, 101 Ohio App.3d 428, 431, 655
N.E.3d 820 (4th Dist. 1995). We note, however, that in the instant case, the trial court did
reference the statutory factors. T. 293-294.
{¶53} Appellant was charged with one count of aggravated trafficking in drugs
(methamphetamine) pursuant to R.C. 2925.11(A)(C)(1)(a) [Count I], a felony of the fifth
degree; one count of aggravated trafficking in drugs (methamphetamine) pursuant to R.C.
2925.11(A)(C)(1)(b) [Count II], a felony of the third degree; and one count of aggravated
trafficking in drugs (methamphetamine) pursuant to R.C. 2925.11(A)(2)(C)(1)(c) [Count
III], a felony of the third degree. Counts II and III merged, and appellee elected to
sentence upon Count III. The maximum prison term for a felony of the fifth degree [Count
I] is one year. The maximum term for a felony of the third degree [Count III] is 3 years.
Pursuant to R.C. 2925.03(A)(2)(C)(1)(c), Count III carries a presumption of a prison term.
The trial court imposed a term of 1 year upon Count I and a term of 3 years upon Count
III, to run concurrently. The sentences were within the statutory range for felonies of the
third and fifth degrees. (Appellant received a total aggregate sentence of 4 years because
the trial court also imposed a 1-year term for the violation of post-release control.)
{¶54} At sentencing, the trial court specifically cited factors including appellant’s
criminal history, his self-serving statements and failure to take responsibility for his
actions, and the status of his post-release control. Appellant continued to insist at
sentencing that he was “set up” by Smith and bore no responsibility for the drugs in the
house.
Licking County, Case No. 19-CA-84 17
{¶55} Based on the foregoing, we find the trial court considered the purposes and
principles of sentencing [R.C. 2929.11] as well as the factors that the court must consider
when determining an appropriate sentence. [R.C. 2929.12]. The trial court has no
obligation to state reasons to support its findings, nor is it required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry.
{¶56} While appellant may disagree with the weight given to these factors by the
trial judge, appellant's sentence was within the applicable statutory range for a felony of
the first degree and therefore, we have no basis for concluding that it is contrary to law.
{¶57} Appellant’s third assignment of error is overruled.
CONCLUSION
{¶58} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.