[Cite as State v. Archer , 2019-Ohio-171.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellee

v. THOMAS B. ARCHER, JR. Appellant C.A. No. 18CA0010-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 17CR0146

DECISION AND JOURNAL ENTRY Dated: January 22, 2019

HENSAL, Judge. {¶1} Thomas Archer appeals his sentence fro m the Medina County Court of Common

Pleas. This Court affirms.

I. {¶2} A grand jury indicted Mr. Archer on one count of rape under Revised Code Section 2907.02(A)(1)(b), and one count of gross sexual imposition under Section 2907.05(A)(4). The charges stemmed from two separa te incidents involving two of Mr. Archer’s former live-in-girlfriend’s minor children. 1 Specifically, the rape charge stemmed from an incident wherein Mr. Archer forced his girlfriend’ s two-year-old son to perform oral sex on him. The gross-sexual-imposition charge stemmed from an incident wherein Mr. Archer touched his girlfriend’s five-year-old daughter’s vagina.

1 We note that the State’s brief incorrectly alleges that the victims were Mr. Archer’s children.2

{¶3} After initially pleading not guilty, Mr. Ar cher changed his plea to guilty and, in return, the State reduced the rape count to the lesser-included offense of sexual battery under Section 2907.03(A)(5). The trial court accepte d Mr. Archer’s guilty plea and ordered a presentence investigation. After a hearing, the tr ial court sentenced Mr. Archer to 60 months of imprisonment for each count, set to run concurre ntly. Mr. Archer now appeals, raising one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT IMPOSED A SENTENCE CONTRARY TO LAW INVIOLATION OF R.C. 2953.08 BY SENTENCING DEFENDANTAPPELLANT TO MAXIMUM PRISON TERMS OF FIVE YEARS AS TO EACH COUNT OF THE INDICTMENT, BOTH THIRD-DEGREE FELONY OFFENSES, WHERE THE DEFENDANT-APPELLANT HAD NO PRIOR FELONY RECORD, HAD NEVER PREVIOUSLY SERVED A PRISON TERM, AND THE TRIAL COURT FAILED TO CONSIDER A “LESS SERIOUS’ FACTOR UNDER R.C. 2929.12(C)(3) AND A “RECIDIVISM LESS LIKELY” FACTOR UNDER R.C. 2929.12(E)(5). {¶4} In his assignment of error, Mr. Archer argues that the trial court imposed a sentence that was contrary to the law because it failed to consider the statutory “less serious” and “recidivism less likely” sentencing fact ors. This Court disagrees. {¶5} “In reviewing a felony sentence, ‘[t]he appe llate court’s standard for review is not whether the sentencing cour t abused its discretion.’” State v. Tucker , 9th Dist. Lorain Nos. 16CA010963, 16CA010964, 2017-Ohio-4215, ¶ 8, quoting R.C. 2953.08(G)(2). Instead, “an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence” that: (1) “the record does not support the trial court’s findings under relevant statutes” or (2) “the sentence is otherwise contrary to law.” State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that ‘which will produce in3

the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’”

Tucker at ¶ 8, quoting Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph three of the syllabus. {¶6} It is well-established that “[t]rial cour ts have full discretion to impose a prison sentence within the statutory range and are no l onger required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” State v.

Foster , 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. “[W]here the trial court does not put on the record its consid eration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is presumed th at the trial court gave proper cons ideration to those statutes.” (Alterations sic.) State v. Steidl , 9th Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, fn. 4. “Unless the record shows that the court failed to consider the factors, or th at the sentence is ‘strikingly inconsistent’ with the factors, the court is presumed to have consider ed the statutory factors if the sentence is within the statutory range.” State v. Fernandez , 9th Dist. Medina No. 13CA0054-M, 2014-Ohio-3651, ¶ 8, quoting State v. Boysel , 2d Dist. Clark No. 2013-CA-78, 2014-Ohio-1272, ¶ 13. {¶7} Here, Mr. Archer argues that the trial court erred by imposing a maximum prison sentence of five years as opposed to nonresiden tial – or a combination of nonresidential and residential community-control – sanc tions. As previously noted, Mr. Archer asserts that the trial

court failed to consider the se riousness and recidivism factors set forth in Sections 2929.12(C)(3) and (E)(5). Regarding the “less serious” factor under Section 2929.12(C)(3), he argues that the presentence investigation report erroneously omitted the fact that he did not cause, nor expect to cause, physical harm to either of the victims. Regarding the “recidivism less likely” factor under4

Section 2929.12(E)(5), he argues that he showed genuine remorse and accepted responsibility for his actions by entering a guilty plea, and that he reaffi rmed his remorse at the sentencing hearing. {¶8} In response, the State argues that Mr. Ar cher’s sentence is not contrary to law because it is within the applicable sentencing range. It further argues that, despite Mr. Archer’s statements to the contrary, the trial court did not impose a maximum sentence because it could have ordered the sentences to run consecutively, thereby imposing a ten-year prison sentence. Regarding the “less serious” factor, the Stat e acknowledges that the PSI does not indicate whether the victims suffered physical harm as a result of Mr. Archer’s actions, but asserts that it is not uncommon for sexual assaults to cause at least some physical harm, however minimal. Regarding the “recidivism less likely” factor, the State argues that Mr. Archer did not show genuine remorse for his actions. Rather, it ar gues that he denied wrongdoing on several occasions and accused his former girl friends of plotting against him. {¶9} We begin our analysis by noting that there is no dispute that Mr. Archer’s sentence is within the applicable statutory range. See R.C. 2929.14(A)(3)(a) (providing, in part, that for third-degree felonies in violation of Sections 2907.03 and 2907.05, the trial court can impose a prison term of up to 60 months). Thus, “[u]nless the record shows that the court failed to consider the factors, or that the sentence is ‘strikingly inconsistent’ with the factors, the court is presumed to have considered the statutory factors * * *.” Fernandez at ¶ 8, quoting Boysel at ¶ 13. In its journal entry, the trial court indicat ed that it considered the principles and purposes of sentencing under Section 2929.11, and that it weighe d the seriousness and recidivism factors. While the trial court did not provide its analysis of those factors, it was not required to do so.

Foster at paragraph seven of the syllabus. Additiona lly, despite Mr. Archer’s argument to the contrary, a review of the senten cing transcript indicates that the trial court considered Mr.5

Archer’s apparent remorse. In doing so, the tria l court noted that Mr. Archer previously denied wrongdoing during his interview w ith the probation depar tment, and that he c ontinually failed to take ownership of his actions. Further, while the record does not expressly indicate that the victims suffered physical harm , “R.C. 2929.12(C) does not require the trial court to assign a specific weight to any one factor. Instead, R.C. 2929.12(C) simply requires the trial court to

‘consider’ each factor.” State v. Jones , 7th Dist. Mahoning No. 04-MA-76, 2005-Ohio-6937, ¶ 42, quoting R.C. 2929.12(C). Thus, the lack of evidence regarding physical harm to the victims does not necessarily render Mr. Archer’s sentence contrary to law as he suggests. 2 {¶10} Having reviewed the entire record, this Court determines that Mr. Archer has failed to demonstrate by clear a nd convincing evidence that his se ntence is contrary to law. Accordingly, Mr. Archer’s assignment of error is overruled.

III. {¶11} Mr. Archer’s assignment of error is ove rruled. The judgment of the Medina County Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27.

2 We note that Mr. Archer’s argument ignor es the fact that Section 2929.12(B) requires a trial court to consider any mental injury or psychological harm suffered by victims, as well as the testimony in the record regarding same.6

Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

TEODOSIO, P. J. CARR, J. CONCUR.

APPEARANCES: RONALD SCOTT SPEARS, Attorney at Law, for Appellant. S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.