[Cite as State v. White , 2020-Ohio-219.]

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

State of Ohio Court of Appeals No. S-19-012 Appellee Trial Court No. 18 CR 662

v. Marcus E. White DECISION AND JUDGMENT Appellant Decided: January 24, 2020 * * * * * Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee

. Brett A. Klimkowsky, for appellant.

* * * * * PIETRYKOWSKI, J. {¶ 1} Appellant, Marcus White, appeals the judgment of the Sandusky C ounty Court of Common Pleas, convicting him following a plea of guilt y to one count of attempted possession of marihuana in violation of R.C. 2925.11( A) and (C)(3)(d), and R.C. 2923.02(A), a felony of the fourth degree, and sentencing him to 18 months in prison. For the reasons that follow, we affirm.2. + I. Facts and Procedural Background {¶ 2} On September 17, 2018, the Sandusky County Grand Jury entered a twocount indictment against appellant, charging him with one count of possession of marihuana in violation of R.C. 2925.11(A) and (C)(3)(d), a felo ny of the third degree, and one count of having weapons while under disability in viola tion of R.C. 2923.13(A)(2) and (B), a felony of the third degree. The charg es arose from a traffic stop where appellant was a passenger in a car that contained a firea rm and 3.1 pounds of

marihuana. {¶ 3} On December 11, 2018, appellant entered a plea of guilty to the amended charge of attempted possession of marihuana in violation of R.C . 2925.11(A) and (C)(3)(d), and R.C. 2923.02(A), a felony of the fourth degree. Pursuant to the plea agreement, the charge for having a weapon under disability was dismissed. Following a Crim.R. 11 plea colloquy, the trial court accepted appellant’s plea, found him guilty, and continued the matter for the preparation of a presentence inves tigation report. {¶ 4} The sentencing hearing was held on February 6, 2019. At the se ntencing hearing, counsel for appellant advocated for community control, referencing conversations that were had with the prosecution. Counsel also presented his argument that appellant was very cooperative throughout the proceedings, has accepted responsibility for his actions, has a welding certificate and i s looking to further his education, and wants to put down roots and build a good foundat ion for his life. After3. hearing counsel’s statement, the trial court noted appellant’s five prior felony convictions, his continued use of drugs, his recidivism score, and his active warrant from the state of Washington for escaping community control and poss ession of a controlled substance. The court also acknowledged its role to protect the public from future crime and impose an appropriate punishment. Thereafter, the trial co urt accepted the recommendation contained in the presentence investigation repor t and sentenced appellant to serve a prison term of 18 months. Upon prompting from the prosecutor, the trial court asserted that in imposing its sentence it had consi dered the factors in R.C.

2929.11 and 2929.12. II. Assignments of Error {¶ 5} Appellant has timely appealed his judgment of conviction, and n ow asserts two assignments of error for our review: 1. The Trial Court’s sentence of Marcus White (“Appellant”) i s excessive and violates the law. 2. Appellant’s plea was not knowingly, voluntarily, and intel ligently

made. III. Analysis {¶ 6} We will address appellant’s assignments of error in reverse ord er. A. Appellant’s plea was knowingly, intelligently, and voluntar ily made. {¶ 7} In his second assignment of error, appellant argues that his pl ea was not knowingly, intelligently, and voluntarily made. “Before a tria l court may accept a guilty4. plea, it must address the defendant personally and inform him o f, and ensure that he understands, ‘the nature of the charges and of the maximum pena lty involved’ and the ‘effect of the plea of guilty.’” State v. Dornoff , 2018-Ohio-3084, 105 N.E.3d 1278, ¶ 9 (6th Dist.), quoting Crim.R. 11(C)(2)(a) and (b). “The underly ing purpose of Crim.R. 11(C) is to ensure that the information a defendant needs to ma ke a voluntary and intelligent decision about pleading guilty is conveyed to him.” Id. , citing State v.

Ballard , 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). {¶ 8} In this case, appellant argues that his plea was not knowingly, voluntarily, and intelligently made because conversations with the prosecuto r led appellant to believe that he would be sentenced to community control instead of a te rm of imprisonment. However, the transcript from the plea hearing reveals that whil e community control was presented as a sentencing option, the trial court first informe d appellant that it could impose a sentence of up to 18 months in prison. The court also informed appellant that if it sentenced him to prison, he could be subject to a period of postrelease control. Notably, the prosecution never mentioned community control, or made a recommendation of community control. In this way, this case is distinguishable from State v. Asberry , 173 Ohio App.3d 443, 2007-Ohio-5436, 878 N.E.2d 1082 (8th Dis t.), cited by appellant, in which the appellate court found that the plea was not knowingly, intelligently, and voluntarily made where the state and trial c ourt both repeated the state’s position that it was not seeking prison time, and the trial cou rt never informed the defendant that it was not bound by the state’s recommendation. Therefore, because the5. trial court correctly and fully informed appellant of the poten tial consequences of his plea, we hold that his plea was knowingly, intelligently, and v oluntarily made. {¶ 9} Accordingly, appellant’s second assignment of error is not well -taken. B. Appellant’s sentence is not clearly and convincingly contra ry to law. {¶ 10} In his first assignment of error, appellant argues that his sen tence is excessive, and that the trial court should have imposed a term of community control, which would have constituted the minimum sanction needed to app ropriately punish appellant and deter others. {¶ 11} We review felony sentences under the two-pronged approach set f orth in R.C. 2953.08(G)(2). State v. Tammerine , 6th Dist. Lucas No. L-13-1081, 2014-Ohio425, ¶ 11. R.C. 2953.08(G)(2)(b) provides that an appellate co urt may increase, reduce, modify, or vacate and remand a disputed sentence if it clearly and convincingly finds “[t]hat the sentence is otherwise contrary to law.” In Tammerine , we recognized that

State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, abrogated by State

v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, still can provide guidance for determining whether a sentence is clearly and conv incingly contrary to law.

Tammerine at ¶ 15. The Ohio Supreme Court in Kalish held that where the trial court expressly stated that it considered the purposes and principles of sentencing in R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properl y applied postrelease control, and sentenced the defendant within the statutorily per missible range, the sentence was not clearly and convincingly contrary to law. Kalish at ¶ 18.6. {¶ 12} Here, appellant does not argue that postrelease control was imp roperly applied or that he was sentenced outside of the statutorily per missible range. The record also reflects that the trial court considered the principles an d purposes of sentencing in

R.C. 2929.11 and the seriousness and recidivism factors contain ed in R.C. 2929.12. Furthermore, we find that the record supports the trial court’s sentencing determination in that appellant has five prior felony convictions, including att empted robbery, burglary, possession of a controlled substance, and bail jumping. Theref ore, we cannot say that appellant’s sentence is clearly and convincingly contrary to la w. {¶ 13} Accordingly, appellant’s first assignment of error is not well- taken. {¶ 14} Judgment of the Sandusky County Court of Common Pleas is affirm ed. Pursuant to App.R. 24, appellant shall pay the costs of this ap peal. 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.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, 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/.