[Cite as State v. Buck , 2021-Ohio-1073.]

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

State of Ohio Court of Appeals No. WD-20-031 Appellee Trial Court No. 2019CR0356

v. Tahra S. Buck DECISION AND JUDGMENT Appellant Decided: March 31, 2021

* * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.

* * * * * MAYLE, J. {¶ 1} Appellant, Tahra Buck, appeals the March 4, 2020 judgment of th e Wood County Court of Common Pleas sentencing her to 17 months in pri son following her conviction for theft from a person in a protected class. For t he following reasons, we affirm the trial court’s judgment.2. I. Background {¶ 2} On August 8, 2019, Buck was indicted on one count of theft from a person in a protected class in violation of R.C. 2913.02(A)(1) and (B) (3), a fourth-degree felony. On August 20, 2019, Buck appeared, without counsel, for her arr aignment. She was determined to be indigent and was assigned counsel. She then e ntered a not guilty plea to the single theft count. {¶ 3} On January 20, 2020, Buck appeared for a change of plea hearing

. Following negotiations with the state, Buck agreed to enter a g uilty plea to the charge as indicted. In exchange for the guilty plea, the state agreed to recommend a sentence consisting of a term of community control rather than a prison term. The trial court accepted Buck’s guilty plea and ordered her to participate in a presentencing interview before her sentencing hearing on March 3, 2020. {¶ 4} At the sentencing hearing, the trial court imposed a 17-month p rison term for

Buck’s theft conviction. Buck’s sentence was memorialized in a judgment entry dated March 4, 2020. Buck timely appealed and asserts the following error for our review: The court abused its discretion by sentencing appellant to serv e a seventeen month term in the Ohio Department of Rehabilitation and Corrections instead of ordering community control sanctions as recommended by the State of Ohio.3. II. Law and Analysis {¶ 5} In her sole assignment of error, Buck argues that her sentence is contrary to law because the trial court did not properly consider the purpo ses of felony sentencing under R.C. 2929.11 or appropriately weigh the seriousness and r ecidivism factors under R.C. 2929.12 when it fashioned her sentence. According to Buck , the trial court surely would have ordered community control sanctions—instead of a 17- month prison term—if it had appropriately considered the statutory factors of R.C. 2 929.11 and 2929.12. {¶ 6} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings , 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. In State v. Tammerine , 6th Dist. Lucas No. L-13-1081, 2014-Ohio- 425, ¶ 15, we recognized that a sentence is not clearly and convincingly contrary to law for purposes of R.C. 2953.08(G )(2)(b) where the trial court has considered the purposes and principles of sentencing in R.C. 2929.11 and the seriousness and recidivism factors listed in R.C. 2929.12, prop erly applied postrelease control, and sentenced the defendant within the statutorily-per missible range. The burden is on the appellant to identify clear and convincing evidence i n the record that their sentence was erroneously imposed. State v. Torres , 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6. {¶ 7} Importantly, however, the Ohio Supreme Court has made clear tha t “neither R.C. 2929.11 nor 2929.12 requires a trial court to make any spe cific factual findings on

the record.” State v. Jones , -- N.E.3d --, Slip Opinion No. 2020-Ohio-6729, ¶ 20. In fact , the trial court’s consideration of the factors set forth in R.C . 2929.11 and 2929.12 is4. presumed even on a silent record. State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1 (2017); State v. Cyrus , 63 Ohio St.3d 164, 166, 586 N.E.2d 94, 95 (1992). An appellate court may not independently weigh the evidence and substitute its judgment for that of the trial court regarding the appropriate sentence under R.C. 2929.11 and 2929.12, nor may it modify or vacate a sentence under R.C. 2953 .08(G)(2)(b) based on the lack of support in the record for the trial court’s finding s under those statutes. Jones at ¶ 39, 41-42. {¶ 8} Here, Buck argues that her prison sentence was contrary to law because the trial court “failed to fully comply with the requirements of R. C. 2929.11, the purposes of sentencing, and R.C. 2929.12, seriousness of crime and recidivi sm factors in ordering [her to serve] a seventeen month ODRC sentence.” Specifically, she claims that the trial court failed to consider two mitigating factors which would sup port the imposition of a

lesser sentence—her need for substance abuse treatment and the lack of physical harm resulting from her conduct—when it determined that the appropri ate sentence was a 17-month prison term for her theft conviction. Buck argues tha t had the trial court properly weighed the seriousness and recidivism factors in R.C. 2929.12 it would have determined that a term of community control was the appropriate sentence. This, she argues, resulted in a sentence that exceeded the minimum sancti on necessary to accomplish the principals of felony sentencing established in R .C. 2929.11. {¶ 9} Essentially, Buck asks this court to make an independent determ ination as to whether the record supports her sentence under R.C. 2929.11 and 2929.12. But, as the5. Supreme Court of Ohio recognized in Jones , R.C. 2953.08(G)(2) does not permit an “appellate court to independently weigh the evidence in the rec ord and substitute its judgment for that of the trial court concerning the sentence th at best reflects compliance

with R.C. 2929.11 and 2929.12.” Id. at ¶ 42. Accordingly, because we cannot second guess the trial court’s application of R.C. 2929.11 and 2929.12 , Buck’s sole assignment

of error is found not well-taken.

III. Conclusion {¶ 10} We cannot independently weigh the evidence in the record and su bstitute our judgment for that of the trial court concerning the sentenc e that best reflects compliance with R.C. 2929.11 and 2929.12. Therefore, we find B uck’s assignment of error not well-taken and affirm the March 4, 2020 judgment of t he Wood County Court of Common Pleas. Buck is ordered to pay the costs of this appe al pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.6. State v. Buck C .A. No. WD-20-031

Christine E. Mayle, J. _____________________

__________ JUDGE Gene A. Zmuda, P.J.

_______________________________ Myron C. Duhart, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.