[Cite as State v. Claar , 2021-Ohio-2180.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNT Y

STATE OF OHIO, Plaintiff-Appellee,

- v - MATTHEW J. CLAAR, Defendant-Appellant. CASE NO. 2020-P-0058

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2017 CR 00423

O P I N I O N Decided: June 28, 2021 Jud g ment: Affirmed

Victor V. Vigluicci , Portage County Prosecutor, and Theresa M. Scahill , Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 ( For Plaintiff-Appellee )

. Alexander Keane , A.T. Keane Law, P.O. Box 92, Canfield, OH 44406 (For Defendan tAppellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, Matthew J. Claar, appeals the imposition o f consecutive thirty-six-month prison terms for one count of thir d-degree Attempted Felonious Assault and one count of third-degree Tampering with Evidence. For the following reasons, we affirm the sentence imposed. {¶2} On November 20, 2017, Claar pled guilty to Attempted Felonious Assault and Tampering with Evidence and was placed on community control sanctions. {¶3} On July 19, 2019, the trial court revoked the community control sanctions2

Case No. 2020-P-0058 and sentenced Claar to consecutive thirty-six-month prison term s for each felony. {¶4} Claar appealed the imposition of consecutive prison terms and t his court reversed on the grounds that “the trial court failed to make th e finding that consecutive sentences are ‘not disproportionate to the seriousness of the o ffender’s conduct and to the danger the offender poses to the public’ at the sentencing hearing.” State v. Claar , 11th Dist. Portage No. 2019-P-0091, 2020-Ohio-1330, ¶ 12. {¶5} On June 8, 2020, Claar was resentenced and again received conse cutive thirty-six-month prison terms. {¶6} On July 7, 2020, Claar filed a Notice of Appeal. On appeal, Cl aar raises the following assignment of error: “The trial court issued a senten ce contrary to law when it failed to give proper consideration to the principles of senten cing.” {¶7} “The court hearing an appeal [of a felony sentence] shall revie w the record, including the findings underlying the sentence or modification given by the sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase , reduce, or otherwise modify a sentence that is appealed under this section or may va cate the sentence and remand the matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * * [t]hat the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b). {¶8} “A court that sentences an offender for a felony shall be guide d by the overriding purposes of felony sentencing.” R.C. 2929.11(A). “ The overriding purposes of felony sentencing are to protect the public from future crim e by the offender and others, to punish the offender, and to promote the effective rehabilita tion of the offender using the minimum sanctions that the court determines accomplish thos e purposes without imposing an unnecessary burden on state or local government res ources.” Id.3

Case No. 2020-P-0058 {¶9} When imposing a sentence for a felony, the trial court “has dis cretion to determine the most effective way to comply with the purposes an d principles of [felony] sentencing” and “shall consider the factors * * * relating to t he seriousness of the conduct” and “the factors * * * relating to the likelihood of the offend er’s recidivism.” R.C. 2929.12(A). A non-exhaustive list of factors relating to the s eriousness of the conduct and the likelihood of recidivism is set forth in divisions (B), (C), (D), and (E) of R.C.

2929.12. {¶10} Claar argues that “the trial court did not properly consider th e purposes and principles of sentencing under R.C. 2929.11, rendering its sent ence contrary to law.” At the sentencing hearing, “the trial court spoke of the ‘purposes of Ohio sentencing law’ as well as to the seriousness factors, but did not speak to any of the principles of sentencing.” In its sentencing entry, the court “speaks only of considering those factors contained in R.C. 2929.19, which does not contain any of the relevant purpos es or principles of sentencing.” Appellant’s brief at 4. {¶11} We find no error. It is well-established that “consideration o f the appropriate factors set forth in R.C. 2929.11 can be presumed unless the de fendant affirmatively shows to the contrary.” State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 243. A trial court’s silence regarding the purposes of fe lony sentencing and/or the

seriousness and recidivism factors is not sufficient to affirma tively demonstrate that the court did not comply with the statutes. State v. Adams , 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus (“[a] silent recor d raises the presumption

that a trial court considered the factors contained in R.C. 292 9.12”); State v. Cozzone , 2018-Ohio-2249, 114 N.E.3d 601, ¶ 19 (11th Dist.) (“[t]he trial court did not explicitly state4

Case No. 2020-P-0058 it considered R.C. 2929.11 and R.C. 2929.12 when it imposed app ellant’s sentence; however, we presume a trial court considered R.C. 2929.11 and R .C. 2929.12 from a silent record”). {¶12} We further note, as pointed out in the State’s brief, that refe rence to the “principles of sentencing set forth in section 2929.11 of the R evised Code” only occurs in R.C. 2929.12(A). Section 2929.11(A) states that a court “shall be guided by the overriding purposes of felony sentencing” but omits any mention of princip les. Construing these statutes, R.C. 2929.12(A) affords a sentencing court discretion as to how “to comply with the * * * principles” of sentencing, although what these princi ples are is not otherwise identified or explained, nor is a sentencing court required to be guided by or to comply with them. To the extent that it is necessary to identify them , the principles of sentencing may be generally understood as the objectives served by the pur poses of sentencing. Given the foregoing, a court’s failure to expressly mention the principles of sentencing when imposing a sentence is not grounds for reversal. {¶13} In the sentencing entry, the court did state that it “considere d the overriding principles of 2929.19: to protect the public from future crimes by the Defendant and to punish the Defendant using the minimum sanctions that the Court determines to accomplish those purposes without imposing an unnecessary burde n on state or local government resources and the need for incapacitating the Defend ant, deterring the Defendant and others from future crime and Rehabilitating the D efendant.” Again, as noted in the State’s brief, the reference to the “principles of 2929.19” is evidently a typographical error, inasmuch as the foregoing language tracks the purposes of felony sentencing set forth in R.C. 2929.11(A). Compare State v. Pishner , 11th Dist. Portage5

Case No. 2020-P-0058 No. 2017-P-0004, 2017-Ohio-8689, ¶ 23, fn. 1 (“[d]espite citing R.C. 2929.19, the trial court’s language during this portion of the sentencing hearing closely follows the language of R.C. 2929.11, which statute t he court unquestionably intende d to reference”). {¶14} Here, there is nothing in the transcript of the sentencing hear ing or the sentencing entry itself to suggest that the trial court did not give due consideration to the purposes of felony sentencing in R.C. 2929.11 or the seriousnes s and recidivism factors in R.C. 2929.12. Accordingly, the sentence imposed is not cont rary to law. {¶15} The sole assignment of error is without merit. {¶16} For the foregoing reasons, Claar’s sentence of consecutive thir ty-six-month prison terms is affirmed. Costs to be taxed against the appell ant.

MARY JANE TRAPP, P.J., THOMAS R. WRIGHT, J.,

concur.