[Cite as State v. White, 2013-Ohio-4925.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99691

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

VIRGIL WHITE

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-543548 

BEFORE: S. Gallagher, P.J., Rocco, J., and Kilbane, J. 

RELEASED AND JOURNALIZED: November 7, 2013 
ATTORNEY FOR APPELLANT 

David L. Doughten 

The Brownhoist Building 

4403 St. Clair Avenue 

Cleveland, OH 44103 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Joseph J. Ricotta 

Assistant Prosecuting Attorney 

Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
SEAN C. GALLAGHER, P.J.: 

{¶1} Appellant Virgil White appeals the sentence he received in the common pleas 

court following a guilty plea. For the reasons stated herein, we affirm. 

{¶2} On November 2, 2010, appellant was charged under a multi-count indictment. 

 Ultimately, he entered a plea of guilty to attempted felonious assault, domestic violence, 

and disrupting public service, and other counts were nolled. 

{¶3} At sentencing, the prosecutor stated that the charges arose from an incident in 

which appellant got into an altercation with the victim, who was his then girlfriend, that 

escalated to the point where appellant threw boiling hot water on the victim. The victim 

sustained second-degree burns to the side of her face, her neck, her right arm, and both 

legs. Photographs were introduced depicting her injuries. When the police responded, 

they had to threaten appellant with tasers in order to gain access to the victim. 

{¶4} Defense counsel and appellant both maintained that the victim ran upstairs 

first and obtained a pot of boiling water used for the bath, that there was a struggle over 

the boiling water, and that both parties were contemporaneously burned. The victim 

moved out of the home six days after this incident. Appellant also discussed his children 

and his work life. 

{¶5} The court heard statements from two individuals who spoke in regard to 

appellant’s character. The victim was not present at the sentencing hearing. 

{¶6} The court noted that by pleading guilty, appellant had taken full responsibility 

for the crimes. When the trial court asked appellant why he was pleading guilty if he 
believed it was an accident, appellant did not directly answer the question. After 

appellant continued to blame the victim, the court indicated that “pictures are worth a 

thousand words * * *. The pictures showing significant injuries that you * * * have pled 

guilty to inflicting in this case are substantial, permanent and horrific.” 

{¶7} The court reviewed the presentence investigation report and appellant’s 

criminal history, which included a juvenile record and prior felony offenses as an adult. 

The court pointed out that appellant had been released from prison and placed in a 

halfway house, but violated the terms of his release and was sent back to prison until he 

was given his final parole in 2005. The court indicated it had considered appellant’s risk 

of recidivism score, the principles and purposes of Senate Bill 2, the nature of the 

offenses, and appellant’s less-than-complete acceptance of responsibility. The trial court 

sentenced appellant to a total prison term of five years, with three years of postrelease 

control. 

{¶8} Appellant was granted leave to file a delayed appeal. In his sole assignment 

of error, appellant claims the trial court erred by not considering appropriate mitigating 

factors required by R.C. 2929.12. 

{¶9} Appellant argues that the trial court failed to give appropriate consideration to 

mitigating factors under R.C. 2929.12(C), indicating that the offender’s conduct is less 

serious than conduct normally constituting the offense. Specifically, appellant claims the 

trial court did not appropriately consider whether the victim induced or facilitated the 

offense, whether the offender acted under extreme provocation, and whether the offender 
expected to cause physical harm to any person. Appellant also argues that the trial court 

failed to consider factors indicating that the offender is not likely to commit future crimes 

as required by R.C. 2929.12(E), including that he had been living a law-abiding life since 

his release from prison in 2005 and that his actions occurred under circumstances unlikely 

to recur. 

{¶10} “[W]here a criminal sentence is within statutory limits, an appellate court 

should accord the trial court the presumption that it considered the statutory mitigating 

criteria in the absence of an affirmative showing that it failed to do so.” State v. Taylor, 

76 Ohio App.3d 835, 839, 603 N.E.2d 401 (2d Dist.1992); see also State v. Exline, 8th 

Dist. Cuyahoga No. 87945, 2007-Ohio-272, ¶ 27. A review of the record shows that the 

trial court imposed a sentence that was within the statutory limits. We find that appellant 

has not demonstrated, nor has a review of the record disclosed, that the trial court failed 

to consider the sentencing criteria. 

{¶11} The trial court’s journal entry indicates that the court considered “all 

required factors of the law” and concluded that “prison is consistent with the purpose of 

R.C. 2929.11.” Furthermore, the sentencing transcript reveals that the trial court 

considered the statutory criteria set forth in R.C. 2929.11 and 2929.12. The record 

reflects that before imposing appellant’s sentence, the trial court considered the 

statements of appellant and defense counsel, the presentence investigation report, the 

principles and purposes of sentencing, as well as the seriousness of the offense and the 

risk of recidivism. The court also heard the mitigating factors that were presented. 
{¶12} The presentence investigation report reflects that when the police arrived, 

they could hear the victim screaming for help and that appellant was not initially 

compliant with allowing the officers inside and was confrontational, argumentative, and 

hostile with the officers. Although the victim informed the police that she accidentally 

spilled hot water on herself and that appellant had nothing to do with her injuries, she 

later told the prosecutor that appellant told her to tell the police it was an accident and that 

she was in fear of appellant. She stated the appellant had become physical with her 

during an argument, that she ran upstairs, and that appellant threw boiling water on her. 

Although appellant argued that a struggle had occurred over the boiling water, the court 

reminded appellant that he had pled guilty to the offenses and noted the horrific injuries 

that were inflicted on the victim, as well as appellant’s lack of remorse. 

{¶13} Upon our review of the record, we find no basis to conclude that the trial 

court failed to consider the statutory criteria contained in R.C. 2929.12. Appellant’s sole 

assignment of error is overruled. 

{¶14} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, PRESIDING JUDGE 

KENNETH A. ROCCO, J., and 

MARY EILEEN KILBANE, J., CONCUR