[Cite as State v. Landry , 2022

- Ohio

- 4420.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD

- 21

- 085

Appellee Trial Court No. 2020CR0514

v.
Jestin Javon Landry DECISI ON AND JUDGMENT

Appellant Decided: December 9, 2022

* * * * *

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

* * * * *

OSOWIK, J.
{¶ 1} Thi s is an appeal from a judgment of the Wood County Court of Common

Pleas which, following entry of guilty pleas , found appellant guilty of Count One, the

offe ns e of B reaking and E ntering , in violation of R.C. 291 .13(B) and 2911. 13(C), a2

.

felony of the fifth degree ; Count Two, the offense of T heft, a violation of

R.C. 2913.02 (A)(1) and 2913.02(B)(2), a felony of the fifth degree ; Count Five, the

offense of Identity Fraud, in violation of R.C. 2913.49 (I)( 2), a felony of the fifth degree ;

Count Seven, the offen s e of Te lecommunications F raud, in violation of R.C. 2913.05 (A)

and 2913.05(C), a felony of the fifth degree ; Count Eight, R eceiving S tolen P roperty , in

violation of R.C. 2913. 51(A) and 2913.51(C), a felony of the fifth degree ; Count Ten, the

offense of offe nse of I dentity F raud , in violation of R.C. 2913.49(B)(1) and

2913.49(I)(2), a felony of the fifth degree ; and Count Eleven, the offense of B urglary in

violation of R.C. 2911.12(A)(3) and 2911.12(D), a felony of the third degree.
{¶ 2} In exch ange for the guilty pleas, the c ourt dismissed Counts Three, Four, Six

and Nine of the Indictment.
{¶ 3} Appellant wa s then sentenced to serve 12 months in the Ohio Department of

Rehabilitation and Correction on Counts One, Two, Five, Seven, Eight and Ten. He wa s

also sentenced t o serve 30 months on Count Eleven consecutively. The sentence imposed

in Count Eleven was also to be served consecutively on an unrelated c ase , No. 2021

- CR

0046.
{¶ 4} Appellant presents a single Ass ignment of Error for our review:

The Trial Court’s imposition of a prison sentence was an abuse of

discretion because the Trial Court failed to consider Landry stole to support

himself and did not put any of his victims in any danger.3

. {¶ 5} In support of his argument, Landry points out that the burglary charge

involved a n unoccupied garage and there was no risk to human life at the time of his

offense. He further argues that the bulk of the remaining thefts involved credit cards and

that no luxury items were purchased.
{¶ 6} Appellant claims that the trial court was required t o make specific findings
of fact under R.C. 2929.12(C)(4) and to consider his conduct and “horrible childhood” as

a mitigating factor that would warrant community control as an appropriate sanction.
{¶ 7} We review challenges to felony sentencing under R.C. 2953 .08(G)(2), which

provides that, t he court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.
{¶ 8} The appellate court may incre ase, 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. 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) t hat the record does not support the sentencing court's findings under

division (B) or (D) of section 29 29.13, 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)

t hat the sentence is otherwise contrary to law.4

. {¶ 9} Landry ’ s underlying argument in this case is that the imposi tion of a prison

term fails to comport with the principles and purposes of sentencing under R.C. 2929.11

and 2929.12 and that this reviewing court may review the findings made by the trial court

under these sections.
{¶ 10} Upon ruling on this proposition of la w, the Ohio Supreme Court held, in

pertinent part, “ Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment for that of the

trial court concerning the sentence that best reflect s compliance with R.C. 2929.11 and

2929.12.” State v. Jones, 163 Ohio St.3d 649, 2020

- Ohio

- 6729, 169 N.E.3d 242, ¶ 42.

The Ohio Supreme Court further elucidated in State v. Toles
, 166 Ohio St.3d 397, 2021

-

Ohio

- 3531, 186 N.E.3d 784, ¶ 10, “ R.C. 2953.08, as amended, precludes second

guessing a sentence imposed by the trial court based on its weighing of the considerations

in R.C. 2929.11 and 2929.12. ” See State v. Szozda
, 6th Dist., Lucas No. L

- 21

- 1026,

2022

- Ohio

- 2294, ¶ 32

- 34, appeal not allowed 2022

- Oh io

- 3752, 168 Ohio St. 3d 1420

. {¶ 11} Nevertheless, Landry cites specifically the concurring opinion of Justice

Fis c her in Jones in support of his argument that this court can review the R.C. 2929.11

and 2929.12 findings of the trial court

. {¶ 12} Moreover, r ecently, th e Supreme Court determined tha t, despite Landry’s

protestations that the trial court made no statutory findings, neither R.C. 2929.11 nor

2929.12 requires the trial court to make any specific factual findings on the record. State5

.

v. Bryant , 2022

- Ohio

- 1878
, ¶ 20 reconsideration denied
, 2022

- Ohio

- 2765, 167 Ohio

St. 3d 1484, 192 N.E.3d 515

. The c ourt also r ecognized the phrase “otherwise contrary to
law” simply means “ in violation of statute or legal regulations at a given time.” Id

. at
¶ 22 , quoting Jones a t ¶ 34.
{¶ 13} We have noted that impermissible considerations, like in Bryant , are those

that fall outside those that are contained in R.C. 2929.11 and 2929.12. In Bryant , for
example, the Supreme Court determined that a sentence was “contrary to law” because i t
was “improperly imposed based on impermissible considerations

— i.e., considerations

that fall outside those that are contained in R.C. 2929.11 and 2929.12.” Id

. See State v.

Fowler
, 6th Dist. Ottawa No. OT

- 21

- 031, 2022

- Ohio

- 3499, ¶ 13

- 14.
{¶ 14} Landry does not claim that the trial court considered any factors outside of

those contained in R.C. 2929.11 and 2929.12

. {¶ 15} In this case, after careful review, we cannot find that Landry ’s sentence is

clearly and convincingly contrary to law . His single assignment of erro r is found not

well

- taken.

Conclusion
{¶ 16} On consideration whereof, t he judgment of the Wood County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24 (A)

. Judgment affirmed.6

. State of Ohio v. Jestin Jav on Landry

WD

- 21

- 085

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J.

____________________________ JUDGE Thomas J. Osowik, J.

____________________________ Christine E. Mayle, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewin g the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.