[Cite as State v. Rodgers , 2020-Ohio-4173.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-20-04 PLAINTIFF-APPELLEE,

v. WILLIAM E. RODGERS, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2019 CR 71 Judgment Affirmed Date of Decision: August 24, 2020

APPEARANCES:

Brian A. Smith for Appellant

Steven M. Powell for AppelleeCase No. 5-20-04

-2- WILLAMOWSKI, J. {¶1} Defendant-appellant William E. Rodgers (“Rodgers”) appeals the judgment of the Hancock County Court of Common Pleas, alleging that his sentence is not supported by the record. For the reasons set forth belo w, the judgment of the

trial court is affirmed. Facts and Procedural History {¶2} On September 6, 2018, Rodgers sold 0.39 grams of cocaine to a confidential informant who was working with the Hancock County METRICH Drug Task Force. PSI. On February 12, 2019, Rodgers was indic ted on two counts of trafficking in cocaine in violation of R.C. 2925.03(A). Doc . 1. On September 27, 2019, Rodgers pled guilty to one count of trafficking in co caine, which was a felony of the fifth degree. Doc. 29, 31. The second count of trafficking in cocaine against Rodgers was dismissed. Doc. 32. At the change of plea hearing, the trial court ordered that a presentence investigation (“PSI”) be prepa red. Change of Plea

Tr. 30. {¶3} On December 19, 2019, Rodgers appeared before the trial court f or sentencing. Tr. 1. At this hearing, the trial court considere d the PSI. Tr. 3, 11-12, 17-19. The trial court then ordered Rodgers to serve an eleven -month prison sentence. Tr. 21. The maximum prison sentence for this offense was twelveCase No. 5-20-04

-3- months. R.C. 2929.14(A)(5). On December 30, 2019, the trial c ourt issued the judgment entry of sentencing. Doc. 33. Assignment of Error {¶4} The appellant filed his notice of appeal on January 28, 2020. Doc. 41. On appeal, Rodgers raises the following assignment of error: Because the record, as shown by clear and convincing evidence, does not support the trial court’s findings, pursuant to R.C. 2953.08(G)(2), the trial court’s sentence of Appellant was not supported by the record. Rodgers argues that the trial court did not properly weigh the principles and purposes of felony sentencing in R.C. 2929.11 or the seriousnes s and recidivism

factors in R.C. 2929.12. Legal Standard {¶5} In rendering a sentence, “[t]he trial court has full discretion to impose any sentence within the authorized statutory range * * *.” State v. Dayton , 3d Dist. Union No. 14-16-05, 2016-Ohio-7178, ¶ 15, quoting, State v. King , 2d Dist. Clark Nos. 2012-CA-25, 2012-CA-26, 2013-Ohio-2021, ¶ 45. However, in this process,

trial courts are to sentence convicted felons in accordance wit h the overriding purposes of felony sentencing, which are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. * * *Case No. 5-20-04

-4- R.C. 2929.11. “To effectuate compliance with these overriding purposes, the Ohio Revised Code requires the trial court to consider a number of f actors listed in R.C.

2929.12.” State v. Walton , 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. The

R.C. 2929.12 factors direct the trial court to evaluate the ser iousness of the offense

and the likelihood of recidivism. R.C. 2929.12. {¶6} “Appellate courts defer to the broad discretion of the trial co urt in matters of sentencing.” State v. Jones , 3d Dist. Shelby No. 17-19-08, 2019-Ohio4938, ¶ 7. 1 If the defendant establishes by clear and convincing evidence that his or her sentence is “(1) contrary to law and/or (2) unsupported by the record,” an appellate court has the authority, pursuant to R.C. 2953.08(G)( 2), “to increase, reduce, or otherwise modif y a sentenc e * * * .” State v. McGowan , 147 Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1. Clear and convincing evidence is that measure or degree of proo f which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to th e facts sought to be established.

State v. Sullivan , 2017-Ohio-8937, 102 N.E.3d 86 (3d Dist.), ¶ 12, quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syll abus (1954).

1 Trial courts are given discretion in applying the statutory fa ctors in the process of determining an appropriate sentence. A misapplication of these factors in sentencing that rises to the level of an abuse of discretion is clearly and convincingly contrary to law. Thus, we examine the record to determine whether the trial court clearly and convincingly failed to act in accordance with the l aws governing the imposition of sentences.Case No. 5-20-04

-5- Legal Analysis {¶7} In this case, the trial court ordered Rodgers to serve a prison sentence of eleven months after considering the contents of the PSI. Tr . 11-12. We begin our analysis by noting that this prison term falls within the s tatutory range for a fifthdegree felony. R.C. 2929.14. As to the seriousness factors, t he trial court considered the factors that are expressly listed in R.C. 2929.1 2(B)-(C). Tr. 14. The trial judge then concluded that, “[b]ased on a consideration of the factors in the statu[t]e, I don’t know that I really find anything either way that makes [this offense] better or worse than the others * * *.” Tr. 14. However, R.C. 2929.12(B) does not

limit a trial court’s consideration of the seriousness of an of fense to the factors expressly listed in the statute. R.C. 2929.12(B). {¶8} Rather, R.C. 2929.12(B) directs a trial court to consider “any other relevant factors” that “indicat[e] that the offender’s conduct is more serious than conduct normally constituting the offense.” R.C. 2929.12(B). In this case, the trial

court did consider a factor that was not listed in the statute as evidence that the offense Rodgers committed was “more serious than [the] conduct normally constituting the offense.” R.C. 2929.12(B). The trial court f ound the fact that Rodgers sold but did not use cocaine to be significant. Tr. 17 . The trial judge stated the following: The other part that is of concern regarding substance use histo ry is that the offense for which you entered a plea of guilty wasCase No. 5-20-04

-6- trafficking in cocaine. You indicate that you’ve never been a user of cocaine, you were only selling it. Okay. I think that makes it worse because I understand that it ’s not uncommon for users to sell. They sell to other users, they fund their own habits that way. You’re selling to make money, which makes you a drug dealer. That’s a problem. Tr. 17. The PSI also concluded that none of the R.C. 2929.12(C ) factors that indicate the offender’s conduct was less serious were applicabl e in this case. PSI. {¶9} As to the recidivism factors, the trial court noted that the PS I indicated that Rodgers had “an extensive juvenile record” and “an extensi ve adult record.” Tr. 14. While Rodgers did not previously have any felony convi ctions, the trial court noted that he had previously had several felony charges t hat resulted in

convictions for misdemeanor offenses. Tr. 15. The PSI conclud ed that the previous sanctions that Rodgers had received for his criminal behavior h ad not resulted in his rehabilitation as he “continues to engage in criminal behavior. ” PSI. Based on the PSI, the trial judge stated that he “d[i]dn’t find any factors outlined in the PSI that would indicate recidivism is less likely.” Tr. 15. {¶10} The trial court also noted that Rodgers had failed to comply wi th the

terms of his bond. Tr. 15. The PSI indicated that there were ten instances in which Rodgers “failed to call in on the date that [he was] supposed t o * * *.” Tr. 16. Further, the PSI also indicated that Rodgers reported that he h ad not used marijuana since 2012. Tr. 16. However, he tested positive for marijuana three weeks beforeCase No. 5-20-04

-7- the scheduled sentencing hearing. Tr. 16. The PSI also indica ted that Rodgers did not have any mental health issues or history of substance abuse . Tr. 19, 20. {¶11} The trial court found that these facts “complicated” the prospe ct of placing Rodgers on community control instead of placing him in prison. Tr. 18. The trial judge concluded his analysis by stating the following : I am, however, Mr. Rodgers, going to find, based upon the information contained within the presentence investigation, again, lengthy adult and juvenile criminal history, failure to comply while on bond, again, no diagnosed or reported mental health or substance abuse history, I’m going to find that you a re not amenable to community control, that the imposition of a prison sentence is consistent with the principles and purposes of sentencing.

Tr. 20-21. {¶12} In the end, it is evident that the trial court considered the p urposes and principles of felony sentencing in R.C. 2929.11. The trial cou rt also considered the seriousness and recidivism factors pursuant to R.C. 2929.12 bef ore ordering a prison term that was within the statutory range. Tr. 12-13, 20-21. See R.C. 2929.14(A). After reviewing the relevant materials, we conclude that Rodger s’s sentence is supported by the facts in the record. Because he did not carry the burden of demonstrating, by clear and convincing evidence, that his sente nce was not supported by the record, Rodgers’s sole assignment of error is overruled.Case No. 5-20-04

-8- Conclusion {¶13} Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of the Hancock County Court o f Common Pleas

is affirmed. Judgment Affirmed PRESTON and ZIMMERMAN, J.J., concur.

/hls