[Cite as State v. O'Shell, 2021-Ohio-3648.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

MADISON COUNTY 

STATE OF OHIO, 

 Appellee, 

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BRADLEY K. O'SHELL, 

 Appellant. 

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CASE NO. CA2021-01-003 

O P I N I O N 

10/12/2021 

CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS 

Case No. CRI20190197 

Nicholas A. Adkins, Madison County Prosecuting Attorney, and Rachel M. Price, Assistant 

Prosecuting Attorney, for appellee. 

Chaudry Law, LLC, and Adam Chaudry, for appellant. 

 BYRNE, J. 

{¶1} Bradley K. O'Shell appeals a sentence imposed by the Madison County Court 

of Common Pleas. For the reasons articulated below, we affirm the sentence. 

I. Procedural Background 

{¶2} A Madison County grand jury indicted O'Shell on two counts. Count one was 

aggravated possession of drugs, a first-degree felony, with a major drug offender 
Madison CA2021-01-003 

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specification and a gun specification. Count two was possession of drugs, a second-degree 

felony, with a gun specification. The matter proceeded to a jury trial, in the midst of which 

the state and O'Shell agreed to a plea deal. Pursuant to this plea deal O'Shell pleaded 

guilty to count two, with no gun specification, and the state dismissed count one entirely. 

{¶3} At sentencing, the court indicated that it had reviewed the seriousness and 

recidivism factors set forth under R.C. 2929.12 and weighed those factors against the 

purposes and principles of sentencing under R.C. 2929.11. The court found that O'Shell's 

case was more serious because O'Shell had committed his offense as part of an "organized 

criminal activity," one of the factors under R.C. 2929.12(B). Specifically, the court noted 

that when O'Shell was arrested he was in possession of four firearms, one of which was 

stolen, and that he was in possession of approximately 14 grams of heroin and nearly 2 

pounds of methamphetamine. The trial court subsequently sentenced O'Shell to a range 

of four to six years in prison and informed him that he would be subject to three years 

mandatory postrelease control. O'Shell appeals, raising one assignment of error. 

II. Law and Analysis 

{¶4} Assignment of Error No. 1: 

{¶5} THE TRIAL COURT ERRED WHEN IT SENTENCED BRADLEY [O'SHELL] 

TO A FOUR TO SIX YEAR TERM OF IMPRISONMENT BECAUSE THAT SENTENCE IS 

NOT SUPPORTED BY THE RECORD IN THIS CASE. R.C. 2953.08(G); 2929.11(A). 

{¶6} In his assignment of error, O'Shell argues that the court erred in weighing the 

seriousness and recidivism factors set forth in R.C. 2929.12. Specifically, O'Shell contends 

that the court erred in its finding that his offense was more serious because it was part of 

organized criminal activity. O'Shell argues that merely being convicted of drug possession 

was not sufficient evidence to establish that his offense was part of an organized criminal 

activity. He argues that the record must contain more evidence to support such a finding. 
Madison CA2021-01-003 

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A. Standard of Review 

{¶7} We review felony sentences pursuant to R.C. 2953.08(G)(2). State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate 

court does not review the sentencing court's decision for an abuse of discretion. Id. at ¶ 10. 

Rather, R.C. 2953.08(G)(2) permits an appellate court to modify or vacate a sentence only 

if the appellate court finds by clear and convincing evidence that the record does not support 

the trial court's findings under certain listed statutes (specifically, R.C. 2929.13[B] or [D], 

R.C. 2929.14[B][2][e] or [C][4], or R.C. 2929.20[I]), or that the sentence is otherwise contrary 

to law. Id. at ¶ 1. 

{¶8} A sentence is not clearly and convincingly contrary to law where trial court 

"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 

2929.12, properly imposes postrelease control, and sentences the defendant within the 

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8. 

B. Legal Analysis 

{¶9} Regarding O'Shell's argument that the record does not support the trial court's 

seriousness finding under R.C. 2929.12, the Ohio Supreme Court recently clarified our 

scope of review when presented with such arguments. State v. Jones, 163 Ohio St.3d 242, 

2020-Ohio-6729. In Jones, the supreme court held that R.C. 2953.08(G)(2)(b) "does not 

provide a basis for an appellate court to modify or vacate a sentence based on its view that 

the sentence is not supported by the record under R.C. 2929.11 and 2929.12." Id. at ¶ 39. 

{¶10} The court explained that R.C. 2953.08(G)(2)(a) permits an appellate court to 

modify or vacate a sentence if the appellate court clearly and convincingly finds that the 

record does not support the sentencing court's finding under certain specified statutory 

provisions not at issue in this appeal (that is, R.C. 2929.13[B] or [D], R.C. 2929.14[B][2][e] 
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or [C][4], or R.C. 2929.20[I]). Id. at ¶ 28. However, R.C. 2929.11 and 2929.12 are not 

among the statutory provisions listed in R.C. 2953.08(G)(2)(a). Id. 

{¶11} Furthermore, the supreme court explained that "an appellate court's 

determination that the record does not support a sentence does not equate to a 

determination that the sentence is 'otherwise contrary to law' as that term is used in R.C. 

2953.08(G)(2)(b)." Id. at ¶ 32. Accordingly, R.C. 2953.08(G)(2)(a) does not permit an 

appellate court to modify or vacate a sentence based on a lack of support in the record for 

the trial court's findings under R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 29. 

{¶12} As such, we lack the authority to modify or vacate O'Shell's sentence based 

on the argument that the record did not support the trial court's findings under R.C. 2929.12. 

Instead, we are limited to reviewing whether O'Shell has presented clear and convincing 

evidence that his sentence is "otherwise contrary to law." 

{¶13} Here, the record reflects that the trial court considered the purposes and 

principles of sentencing as set forth in R.C. 2929.11 and the seriousness and recidivism 

factors listed in R.C. 2929.12. Furthermore, the court properly imposed postrelease control 

and O'Shell's sentence fell within the permissible statutory range. O'Shell's sentence was 

not contrary to law. 

III. Conclusion 

{¶14} For these reasons, we overrule O'Shell's sole assignment of error. 

{¶15} Judgment affirmed. 

 PIPER, P.J., and M. POWELL, J., concur.