State v. Connor

[Cite as State v. Connor, 2020-Ohio-5519.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 19AP-358
v. : (C.P.C. No. 18CR-771)
Raymond Conner, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on December 3, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellant.
On brief: Yeura R. Venters, Public Defender, and Robert D.
Essex, for appellee.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals a sentence of three years of
community control imposed by the trial court following a plea by defendant-appellee,
Raymond Conner, to one count of burglary and one count of failure to appear. Because we
find that the trial court's discussion, in the context of the full record, adequately shows that
it considered the seriousness of the offense and the likelihood of whether the defendant
would recidivate or more simply put, go back to bad behavior, we are unable find, "clearly
and convincingly," that "the record does not support the sentencing court's" judgment. R.C.
2953.08(G)(2)(a). We therefore overrule the State's assignment of error and affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 15, 2018, a Franklin County Grand Jury indicted Conner for one
count of aggravated burglary. (Feb. 15, 2018 Indictment.) According to the undisputed
statement of facts offered in support of Conner's eventual guilty plea, the indictment
No. 19AP-358 2
stemmed from an incident in which Conner kicked in the back door of his ex-girlfriend's
residence, entered, threatened to "fuck [her] up," and then left. (Apr. 2, 2019 Plea Hearing
Tr. at 12, filed June 26, 2019.) After initially pleading "not guilty" and then failing to appear
on one occasion, Conner agreed to plead guilty to a stipulated lesser offense of burglary and
an additional count of failure to appear. (Feb. 23, 2018 "Not Guilty" Plea Form; Apr. 2,
2019 "Guilty" Plea Form; Apr. 2, 2019 Plea Hearing Tr. at 13-14.)
{¶ 3} The trial court held a sentencing hearing on May 3, 2019. (May 3, 2019
Sentencing Hearing Tr., filed June 26, 2019.) During the hearing the State argued that,
although the victim was traveling and unavailable to be present or speak at the hearing, the
victim had indicated that she was terrified of Connor and asked the court to imprison him
for her protection. Id. at 2-4. The defense presented arguments and statements by Conner
and his mother to the effect that the offense was the result of intoxication and anger issues,
that Conner had sought treatment for both problems, and that he would not, as a result of
these efforts, be likely to reoffend. Id. at 4-10. The trial court agreed that the offense was a
result of Conner's anger issues, power issues as relates to women in his life, and alcohol
problems. Id. at 12-13. Rather than impose prison, the trial court imposed community
control and informed Conner that if community control were revoked for failure to follow
its conditions, Conner would serve a 4-year term of imprisonment on the burglary offense
and a concurrent 18-month sentence on the failure to appear offense. Id. at 10-12. Conner's
term of community control required was for 3 years of intensive supervision involving, and
among other requirements, that he stay away from his ex-girlfriend, serve a to-be-
determined length of time at a Community Based Correctional Facility ("CBCF"), submit to
urine screens, maintain employment, and attend behavior programs, domestic violence
counseling, and 3 Alcoholics Anonymous meetings per week. Id.
{¶ 4} At the request of the State, before issuing a judgment entry in the case, the
trial court reconvened to more explicitly explain its reasoning for placing Conner on
community control rather than outright sentencing him to a prison term. (May 15, 2019
Hearing Tr. at 2-3, filed June 26, 2019.) The Court had ordered and reviewed a pre-
sentence investigation and at this hearing stated its reasoning for imposing community
control:
At the time of sentencing the first thing that the Court did
review was the Ohio Risk Assessment tool as it related to
No. 19AP-358 3
Mr. Conner. Mr. Conner's risk assessment score was a 23,
which placed him in a moderate range risk for recidivism, also
indicated that the most appropriate placement was with the
chemical dependency caseload.
And, granted, it was an offense that had a presumption for
prison. The evaluation that was completed had indicated that
even though it was a case where there was a presumption for
prison that that presumption was not appropriate at this time.
So what the Court did look at was Mr. Conner's prior criminal
history. His prior criminal history, the only previous felony that
he had been convicted of was a nonsupport of dependents case
from 2012. He successfully completed community control in
that case was my recollection of the information that had been
provided to the Court.
His prior convictions have all been misdemeanor offenses,
disorderly conduct M4 back in 1995, disorderly conduct M1,
but there's not an M1 disorderly conduct. I don't know if that's
an MM or M4, but disorderly conduct 1998. There was a
domestic violence conviction in '05, violation of protection
order in '05, disorderly conduct in '10, and then the nonsupport
in '12.
So in looking at the risk assessment tool and then the factors
that the Court needed to consider, the Court found that the
recidivism factors as well as the ORAS ruled in favor of
community control and against incarceration. The only
seriousness factor was the relationship with the victim did
facilitate the offense.
So taking into consideration the defendant's prior criminal
history, one prior felony offense in which he successfully
completed community control, the moderate score on the risk
assessment tool of 23, indicating that a moderate risk of
recidivism, is the reason why the Court ultimately agreed to
have -- well, not agreed, but the reason why the Court placed
Mr. Conner in Community Based Correctional Facility
program.
All right. Is there anything else that the State would like to add
on the record based upon what the Court has indicated at this
time.
[PROSECUTION]: No, Your Honor. Thank you for your time.
Id. at 3-5.
No. 19AP-358 4
{¶ 5} The State now appeals the sentence imposed by the trial court. See R.C.
2953.08(B)(1).
II. ASSIGNMENT OF ERROR
{¶ 6} The State presents a single assignment of error for review.
THE TRIAL COURT ERRED IN IMPOSING COMMUNITY
CONTROL WHEN IT FAILED TO MAKE THE REQUIRED
FINDINGS FOR OVERCOMING THE PRESUMPTION OF
PRISON.
III. DISCUSSION
{¶ 7} In sentencing a defendant for a second-degree felony, a trial court must
consider division (D) of R.C. 2929.13, which provides in relevant part:
(1) [F]or a felony of the * * * second degree * * * it is presumed
that a prison term is necessary in order to comply with the
purposes and principles of sentencing under section 2929.11 of
the Revised Code. * * *
(2) Notwithstanding the presumption established under
division (D)(1) of this section * * * the sentencing court may
impose a community control sanction or a combination of
community control sanctions instead of a prison term on an
offender for a felony of the * * * second degree * * * if it makes
both of the following findings:
(a) A community control sanction or a combination of
community control sanctions would adequately punish the
offender and protect the public from future crime, because the
applicable factors under section 2929.12 of the Revised Code
indicating a lesser likelihood of recidivism outweigh the
applicable factors under that section indicating a greater
likelihood of recidivism.
(b) A community control sanction or a combination of
community control sanctions would not demean the
seriousness of the offense, because one or more factors under
section 2929.12 of the Revised Code that indicate that the
offender's conduct was less serious than conduct normally
constituting the offense are applicable, and they outweigh the
applicable factors under that section that indicate that the
offender's conduct was more serious than conduct normally
constituting the offense.
R.C. 2929.13(D).
No. 19AP-358 5
{¶ 8} In reviewing an appeal regarding whether a trial court made required
sentencing findings, an appellate court "shall review the record, including the findings
underlying the sentence or modification given by the sentencing court." R.C.
2953.08(G)(2). The Ohio Revised Code then explains the standard of review:
* * * The appellate court's standard for review is not whether
the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
Id. As we have previously explained, this statute requires that we essentially analyze
" '(1) whether the trial court expressly made the required findings, and (2) whether we
determine by clear and convincing evidence that the record does not support those findings
or is otherwise contrary to law.' " State v. Will, 10th Dist. No. 18AP-759, 2019-Ohio-3906,
¶ 13, quoting State v. Fisher, 10th Dist. No. 13AP-236, 2013-Ohio-4063, ¶ 7, citing State v.
Milhoan, 10th Dist. No. 13AP-74, 2014-Ohio-310, ¶ 16. If we find the standard to be met,
we are empowered to "increase, reduce, or otherwise modify a sentence that is appealed
under this section or may vacate the sentence and remand the matter to the sentencing
court for resentencing." R.C. 2953.08(G)(2).
{¶ 9} The State does not contend that the sentence in this case is contrary to law in
the sense of not being within the authorized range permitted for the offenses of conviction.
R.C. 2953.08(G)(2)(a). Rather, the State's concern is that the trial court failed to make the
findings necessary to justify its decision not to impose a prison term and that the record
does not support such findings. R.C. 2953.08(G)(2)(b). We have frequently "recognize[d]
that the mandatory sentencing guidelines do not require talismanic words from the
sentencing court. Nevertheless, it must be clear from the record that the trial court engaged
in the appropriate analysis." State v. Overmyer, 10th Dist. No. 09AP-945, 2010-Ohio-
2072, ¶ 7. Thus, the question we must answer is whether the record indicates that the trial
court considered the recidivism and seriousness factors and justifiably concluded that the
factors indicating that Conner was less likely to recidivate than more likely to do so and that
No. 19AP-358 6
the record supports a finding that the offense was of less serious form among similar
offenses than a more serious form. See Will at ¶ 13; R.C. 2953.08(G)(2)(a); R.C.
2929.13(D)(2)(a) and (b).
{¶ 10} The recidivism factors set out in R.C. 2929.12 are as follows:
(D) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as
factors indicating that the offender is likely to commit future
crimes:
(1) At the time of committing the offense, the offender was
under release from confinement before trial or sentencing; was
under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code; was under post-
release control pursuant to section 2967.28 or any other
provision of the Revised Code for an earlier offense or had been
unfavorably terminated from post-release control for a prior
offense pursuant to division (B) of section 2967.16 or section
2929.141 of the Revised Code; was under transitional control in
connection with a prior offense; or had absconded from the
offender's approved community placement resulting in the
offender's removal from the transitional control program
under section 2967.26 of the Revised Code.
(2) The offender previously was adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to January
1, 2002, or pursuant to Chapter 2152. of the Revised Code, or
the offender has a history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory
degree after previously being adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to January
1, 2002, or pursuant to Chapter 2152. of the Revised Code, or
the offender has not responded favorably to sanctions
previously imposed for criminal convictions.
(4) The offender has demonstrated a pattern of drug or alcohol
abuse that is related to the offense, and the offender refuses to
acknowledge that the offender has demonstrated that pattern,
or the offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
(E) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as
factors indicating that the offender is not likely to commit
future crimes:
No. 19AP-358 7
(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the offender had led a law-
abiding life for a significant number of years.
(4) The offense was committed under circumstances not likely
to recur.
(5) The offender shows genuine remorse for the offense.
It is apparent in this case that the trial court did not explicitly discuss each of the factors set
out in R.C. 2929.12 related to the issue of recidivism. (May 3, 2019 Sentencing Hearing Tr.
in passim; May 15, 2019 Hearing Tr. in passim.)
{¶ 11} The record shows, however, that, although the trial court uttered no
talismanic words to quote or invoke the factors, the court considered the issues related to
the statutory factors. The trial court acknowledged that Conner had a history of criminal
convictions. (May 15, 2019 Hearing Tr. at 3-4.) R.C. 2929.12(D)(2) and (E)(2). But it noted
that the convictions were minor and quite old at the time of sentencing and that Conner
had performed well on supervision before, contrary to division (D)(3) and (D)(1). (May 15,
2019 Hearing Tr. at 3-4.) R.C. 2929.12(D)(1) and (3). Although the trial court
acknowledged that alcohol abuse appeared to have been related to the offense, the
sentencing hearing transcript indicates that Conner acknowledged the problem and had
sought treatment for both that problem and his anger issues, thus rendering division (D)(4)
inapplicable. (May 3, 2019 Sentencing Hearing Tr. at 8-13.) R.C. 2929.12(D)(4). In other
words, only the fact that Conner had prior convictions suggested he was likely to recidivate.
{¶ 12} The trial court remarked about the age of Conner's convictions, suggesting he
had been living a more law abiding life in recent years. (May 15, 2019 Hearing Tr. at 3-4.)
R.C. 2929.12(E)(3). Likewise, though the trial court did not expressly address whether the
circumstances of the offense were such that it was not likely to reoccur, it did find that
Conner's alcohol and anger issues were causes of the offense and determined to assist
Conner with directly addressing these issues with intensive community control supervision
and intensive programming requirements, including placement in the CBCF, which we
acknowledge is a facility involving confinement for which jail-time credit is afforded. State
No. 19AP-358 8
v. Napier, 93 Ohio St.3d 646, 648 (2001). Because the trial court imposed these conditions
of community control, the record supports that the trial court believed that this
combination of conditions and expenditure of state resources suggested he would be less
likely to reoffend. (May 15, 2019 Hearing Tr. at 3; May 3, 2019 Sentencing Hearing Tr. at
11-13.) R.C. 2929.12(E)(4).
{¶ 13} Though the trial court did not specifically comment on it, but instead
imposed intensive supervision with strict conditions, including placement in CBCF,
Conner's frank expression of remorse for his actions were evidence of his motivation to
change that the trial court took into account when setting the conditions of community
control. (May 3, 2019 Sentencing Hearing Tr. at 8.) R.C. 2929.12(D)(5), and (E)(5). In
short, the record makes clear that the trial court considered the recidivism factors and
concluded that with appropriate community supervision, the factors "indicating a lesser
likelihood of recidivism outweigh[ed] the applicable factors * * * indicating a greater
likelihood of recidivism," as supported by the record. R.C. 2929.13(D)(2)(a) and
2953.08(G)(2)(a).
{¶ 14} The seriousness factors set forth in R.C. 2929.12 are these:
(B) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender's conduct
is more serious than conduct normally constituting the offense:
(1) The physical or mental injury suffered by the victim of the
offense due to the conduct of the offender was exacerbated
because of the physical or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.
(3) The offender held a public office or position of trust in the
community, and the offense related to that office or position.
(4) The offender's occupation, elected office, or profession
obliged the offender to prevent the offense or bring others
committing it to justice.
(5) The offender's professional reputation or occupation,
elected office, or profession was used to facilitate the offense or
is likely to influence the future conduct of others.
No. 19AP-358 9
(6) The offender's relationship with the victim facilitated the
offense.
(7) The offender committed the offense for hire or as a part of
an organized criminal activity.
(8) In committing the offense, the offender was motivated by
prejudice based on race, ethnic background, gender, sexual
orientation, or religion.
(9) If the offense is a violation of section 2919.25 or a violation
of section 2903.11, 2903.12, or 2903.13 of the Revised Code
involving a person who was a family or household member at
the time of the violation, the offender committed the offense in
the vicinity of one or more children who are not victims of the
offense, and the offender or the victim of the offense is a parent,
guardian, custodian, or person in loco parentis of one or more
of those children.
(C) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender's conduct
is less serious than conduct normally constituting the offense:
(1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong
provocation.
(3) In committing the offense, the offender did not cause or
expect to cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender's
conduct, although the grounds are not enough to constitute a
defense.
{¶ 15} Most of the seriousness factors to be considered did not apply in Conner's
case. The record does not show that the victim, who did not attend the sentencing hearing,
suffered serious physical, psychological, or economic harm from Conner's actions, or that
such harm was worsened by her age or physical or mental condition (although the
prosecutor stated at the sentencing hearing that she was terrified of him, the prosecutor's
statement being the only indication of mental harm). (May 3, 2019 Sentencing Hearing Tr.
at 2-4.) R.C. 2929.12(B)(1) and (2). Conner did not occupy a position of trust or office in
relation to the offense. R.C. 2929.12(B)(3) through (5). Although the trial court remarked
that his relationship with the victim facilitated the offense and although a prior romantic
No. 19AP-358 10
relationship with the victim may have motivated the offense, the prior relationship would
not have "facilitated"1 this offense. There is no evidence that he, for example, had a key to
her place, or that he was staying there. After he kicked in her door and entered, he shouted
a threat and then walked away. (May 15, 2019 Hearing Tr. at 4.) R.C. 2929.12(B)(6). Nor
was the offense a hate crime, part of organized crime, or a crime involving a household
member. R.C. 2929.12(B)(7) through (9). The trial court's recognition of the fact of the
prior relationship as a seriousness factor points only to the identity of the victim, but
nothing appears in the record that the former relationship facilitated any other aspect of
the crime. The record essentially does not support any seriousness factor listed in R.C.
2929.12(B).
{¶ 16} Regarding the factors that show the offense was less serious, there is no
indication in the record that Conner was provoked or that the victim induced or facilitated
the offense, rendering those mitigating factors inapposite. R.C. 2929.12(C)(1) and (2).
There is also no indication in the record that Conner went to the victim's house that day
expecting to cause harm to persons or property and it is not clear from the record whether
the acts of kicking the door open in a drunken state and then yelling threats actually caused
any "physical harm" to the door or the victim, except to create fear. (May 3, 2019
Sentencing Hearing Tr. at 4; Apr. 2, 2019 Plea Hearing Tr. at 12.) R.C. 2929.12(C)(3). The
trial court's acknowledgement of Conner's prior misdemeanors indicates that the court
considered this offense in light of his past criminal behavior and did not see an appreciable
escalation in the facts as agreed to by the parties. The statement of facts in the record and
the trial court's statement about Conner's criminal history support a finding by the court
that Conner "did not cause or expect to cause physical harm to any person or property."
R.C. 2929.12(C)(3)
{¶ 17} R.C. 2929.12(B) through (E) also permits a court to consider "any other
relevant factors" and, with respect to mitigation in particular, whether there were "other
substantial grounds to mitigate" the offense. R.C. 2929.12(C)(4). Under that broad
authority to consider mitigation and "any other relevant factors," the record supports the
view that this was not an especially serious form of burglary. Drunkenly kicking in the door
1 "Facilitate" is defined as, "[t]o make (an action, process, etc.) easy or easier; to promote, help forward; to
assist in bringing about (a particular end or result)." OED Online, Oxford University Press, September 2020,
www.oed.com/view/Entry/67460 (accessed Dec. 2, 2020).
No. 19AP-358 11
of an individual with whom Conner has previously been romantically involved to yell
threats and obscenities is criminal behavior. But when that conduct is considered on the
spectrum of what constitutes the crime of burglary, that incident is substantially less serious
than other cases (in which, for example, an offender would enter a home and inflict injury
or rob).
{¶ 18} Despite the fact that the trial court construed one of the seriousness factors
to be present, the record supports the view that none of the factors indicated that the offense
was more serious than usual form of the crime at that level of felony. See supra at ¶ 15. The
record also supports that the trial court recognized as many as two factors were present
showing that the offense was of a less serious variety. See supra at ¶ 16-17. Granted, the
trial court could have been more explicit. However, we cannot find "clearly and
convincingly" that "the record does not support the sentencing court's findings" when it
chose not sentence Conner to prison. R.C. 2953.08(G)(2)(a). That is, under R.C.
2953.08(G)(2)(a), R.C. 2929.13(D), and R.C. 2929.12(B) through (E), the record adequately
demonstrates that the trial court analyzed and considered the statutory factors to overcome
the presumption of prison as to the offense being a less serious form of the offense. R.C.
2953.08(G)(2)(a); see also R.C. 2929.13(D)(2)(b).
{¶ 19} The State's sole assignment of error is overruled.
IV. CONCLUSION
{¶ 20} The trial court's discussion in the context of the full record was sufficient to
demonstrate its findings that the defendant, under intensive supervision, a CBCF sentence
and intensive programmatic conditions was not likely to reoffend and that the offense was
not among the more serious forms of the offense. We cannot conclude "clearly and
convincingly" from the court's record that the sentencing court's judgment and findings did
No. 19AP-358 12
not overcome the presumption of prison. We therefore overrule the State's assignment of
error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT, J., concurs.
BROWN, J., dissents.
BROWN, J., dissenting.
{¶ 21} Being unable to concur with the majority's determination that the trial court
made the necessary findings required to impose a community control sentence, I
respectfully dissent.
{¶ 22} In order to overcome the presumption in favor of a prison term and to impose
a community control sanction, the sentencing court is required to make "two findings."
State v. Murnahan, 2d Dist. No. 2018-CA-6, 2018-Ohio-4762, ¶ 12. See also State v.
Milhoan, 10th Dist. No. 13AP-74, 2014-Ohio-310, ¶ 6 (sentencing court must make both of
the findings under R.C. 2929.13(D)(2)(a) and (b) "before it may deviate from the
presumption that a prison term should be imposed"). First, "the court must find that a
community-control sanction 'would adequately punish the offender and protect the public
from future crime, because the applicable factors under section 2929.12 of the Revised Code
indicating a lesser likelihood of recidivism outweigh the applicable factors under that
section indicating a greater likelihood of recidivism.' " Murnahan at ¶ 12, quoting R.C.
2929.13(D)(2)(a). Second, "the court must find that a community-control sanction 'would
not demean the seriousness of the offense, because one or more factors under section
2929.12 of the Revised Code that indicate that the offender's conduct was less serious than
conduct normally constituting the offense are applicable, and they outweigh the applicable
factors under that section that indicate that the offender's conduct was more serious than
conduct normally constituting the offense.' " Id., quoting R.C. 2929.13(D)(2)(b).
{¶ 23} Because appellee was convicted of a second-degree felony, there was a
presumption in favor of a prison term. In addressing that presumption, the trial court
noted during the sentencing hearing that appellee had a moderate range of risk assessment
score (of 23), that he had one prior felony, and that he had misdemeanor convictions for
disorderly conduct, domestic violence, and violation of a protection order. The court cited
appellee's "prior criminal history," as well as the "moderate score on the risk assessment
No. 19AP-358 13
tool," as the reason why it was placing him in a community based correctional facility. (May
26, 2019 Tr. at 4.)
{¶ 24} On review of the record, I agree with the state that the trial court's findings
fall short of those required by statute. As to the recidivism factors, while the trial court cited
appellee's prior criminal history and moderate risk score as the basis for not imposing a
prison term, the court did not make the finding required by R.C. 2929.13(D)(2)(a) that a
community sanction would adequately punish appellee and protect the public from future
crime (i.e., because the applicable factors under R.C. 2929.12 indicating a lesser likelihood
of recidivism outweigh the applicable factors indicating a greater likelihood of recidivism).
See, e.g., State v. Fisher, 10th Dist. No. 13AP-236, 2013-Ohio-4063, ¶ 8 (remanding for
resentencing to comply with statutory sentencing guidelines; although trial court "found
that defendant has 'a low risk of potentially reoffending,' which indicates the court
considered he had a lesser likelihood of recidivism, the court did not make the finding
required by R.C. 2929.13(D)(2)(a) that the community control sanction would adequately
punish the offender and protect the public from future crime").
{¶ 25} With respect to the seriousness factors under R.C. 2929.12(B) and (C), the
trial court found the only applicable "more serious" factor to be that the offender's
relationship with the victim facilitated the offense (under R.C. 2929.12(B)(6)). The court,
however, did not discuss any of the less serious factors under R.C. 2929.12(C), nor did the
court make the finding under R.C. 2929.13(D)(2)(b) that the community control sanction
would not demean the seriousness of appellee's offense (i.e., because one or more of the
factors indicating appellee's conduct was less serious than conduct normally constituting
the offense are applicable and that they outweigh the applicable factors indicating that the
conduct was more serious than conduct normally constituting the offense). See, e.g., State
v. Martin, 10th Dist. No. 08AP-1103, 2009-Ohio-3485, ¶ 7 (remanding matter for
resentencing; although trial court "said at the sentencing hearing that community control
'is the best way to protect the public,' the court did not find that, under the R.C. 2929.12
factors, a community control sanction would adequately punish appellee and protect the
public from future crime," nor did the court "find at the sentencing hearing that, under the
R.C. 2929.12 factors, a community control sanction would not demean the seriousness of
appellee's offense").
No. 19AP-358 14
{¶ 26} While this court has noted "the mandatory sentencing guidelines do not
require talismanic words from the sentencing court," we have "[n]evertheless" found that
"it must be clear from the record that the trial court engaged in the appropriate analysis."
State v. Overmyer, 10th Dist. No. 09AP-945, 2010-Ohio-2072, ¶ 7. In the present case,
because a review of the sentencing hearing indicates the trial court did not make either of
the two findings as required by R.C. 2929.13(D)(2)(a) and (b) (i.e., that a sentence of
community control would adequately punish the offender and protect the public from
future crime, and not demean the seriousness of the offense) in order to overcome the
presumption of incarceration, "it is not clear that the trial completed the required analysis."
Id. Accordingly, I would sustain the state's assignment of error and remand for
resentencing for the trial court to make the necessary statutory findings.