[Cite as State v. Richcreek , 2021-Ohio-636.]

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

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 11-20-03

v. DONALD J. RICHCREEK, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Paulding County Common Pleas Court Trial Court No. CR 19 592 Judgment Affirmed Date of Decision: March 8, 2021

APPEARANCES: 

### Brian A. Smith for Appellant 

### Joseph R. Burkard for AppelleeCase No. 11-20-03

-2- SHAW, J. {¶1} Defendant-appellant, Donald J. Richcreek (“Richcreek”), brings this appeal from the October 7, 2020 judgment of the Paulding County Common Pleas Court sentencing him to an indefinite prison term of a minimum of eight years and a maximum of twelve years after Richcreek was convicted in a ju ry trial of voluntary manslaughter in violation of R.C. 2903.03(A), a first degree fe lony. The voluntary manslaughter charge carried an attached firearm specification p ursuant to R.C. 2941.141(A) and Richcreek was sentenced to a one year prison te rm for that specification, consecutive to the prison term for voluntary man slaughter. On appeal, Richcreek argues that his conviction for voluntary manslaughter was against the manifest weight of the evidence, and that his sentence was clea rly and convincingly contrary to law. Background {¶2} On September 13, 2019, Richcreek was indicted for murder in vio lation of R.C. 2903.02(A), an unclassified felony. The indictment inc luded a specification pursuant to R.C. 2941.141(A), that Richcreek had a firearm on o r about his person or under his control while committing the offense. It was alle ged that Richcreek purposely shot and killed his brother, Anthony, with a .38 spec ial revolver in the early morning hours of August 10, 2019.Case No. 11-20-03

-3- {¶3} Richcreek pled not guilty to the charge and proceeded to a jury trial, which was held August 25-27, 2020. Ultimately Richcreek was fo und not guilty of murder as indicted; however, he was convicted of the lesser-inc luded offense of voluntary manslaughter, a first degree felony, with an attached firearm specification. {¶4} On October 5, 2020, Richcreek was sentenced to an indefinite pr ison term of a minimum of eight years and a maximum of twelve years on the voluntary manslaughter conviction, and one year in prison on the firearm specification. Those terms were ordered to be served consecutively. A judgment entr y memorializing Richcreek’s sentence was filed October 7, 2020. It is from thi s judgment that Richcreek appeals, asserting the following assignments of error for our review. Assignment of Error No. 1 Because the jury lost its way and created a manifest miscarriag e of justice in finding Appellant guilty of Voluntary Manslaughte r with a Firearm Specification, Appellant’s conviction was agains t the manifest weight of the evidence. Assignment of Error No. 2 Because the trial court did not properly weigh the principles a nd purposes of sentencing under R.C. 2929.11 or the seriousness an d recidivism factors under R.C. 2929.12, Appellant’s sentence was not supported by the record. First Assignment of Error {¶5} In his first assignment of error, Richcreek argues that his con viction for voluntary manslaughter was against the manifest weight of the e vidence.Case No. 11-20-03

-4- Standard of Review {¶6} In determining whether a conviction is against the manifest wei ght of the evidence, a reviewing court must examine the entire record, “ ‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibi lity of witnesses and determine[ ] whether in resolving conflicts in the evidence, th e [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.’ ” State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropri ate discretion on matters relating to the weight of the evidence and the credibil ity of the witnesses.

State v. DeHass , 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where t he evidence ‘weighs heavily against the conviction,’ should an appellate court over turn the trial court’s judgment.” State v. Haller , 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119. Controlling Statute {¶7} In this case, Richcreek was convicted of voluntary manslaughter in violation of R.C. 2903.03(A), which reads, No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably suffici entCase No. 11-20-03

-5- to incite the person into using deadly force, shall knowingly c ause the death of another or the unlawful termination of another’s pregnancy. Evidence Presented {¶8} Richcreek had a relationship with a woman named Ashley C. for approximately six years. They had two children together. {¶9} Anthony, the victim in this matter, was Richcreek’s older broth er. During a portion of Richcreek and Ashley’s relationship, Anthon y spent multiple years in prison in Indiana for aggravated battery and domestic battery. Ashley spoke with Anthony while Anthony was in prison because Richcreek “ref used to message [his brother Anthony] back.” (Tr. at 289). {¶10} After Anthony was released from prison in early 2019, he and As hley started a relationship. Richcreek found out about the burgeoni ng relationship that Ashley was having with his brother and he was angry, so he wentoutside and “shot up the side of [Ashley’s] van.” (Tr. at 268). Ashley and Rich creek then split up. Shortly thereafter Ashley and Anthony moved in together. Meanw hile, Richcreek lived in a home owned by Ashley’s grandfather. {¶11} After some time passed, Richcreek moved into the residence with Ashley and Anthony, though the reason for Richcreek moving in w as disputed in the testimony. Ashley claimed that Richcreek was getting evict ed from his residence for not paying his rent and Anthony was adamant that Richcreek was notCase No. 11-20-03

-6- going to be left on the street. Richcreek claimed that he want ed to move into Ashley and Anthony’s residence because Ashley and Anthony were struggl ing with their bills and he wanted to help out with the children. Regardless of the reasoning, it is undisputed that Richcreek moved into the residence with Ashley and Anthony. {¶12} Ashley testified that she was uncomfortable with Richcreek stay ing in the residence given that Richcreek was her ex, and because Rich creek had “shot up the side of [her] van” after he found out about the relationshi p between Ashley and Anthony. (Tr. at 269). She testified that her discomfort was well-founded because Richcreek had trouble while staying in the residence. She test ified that Richcreek was “upset because he had heard stuff that had been happening b etween me and Anthony in the bedroom.” ( Id . at 286). {¶13} Nevertheless, Ashley acknowledged that the relationship between Richcreek and Anthony was not always bad while Richcreek stayed at the residence. She testified that in the days prior to Anthony’s death, Richcr eek and Anthony had gone to stores together and they had all taken the children for a ride on a separate

occasion. {¶14} On August 9, 2019, Richcreek had wanted to go to “Haspin” for t he weekend with Ashley. It was a racing or driving event and Rich creek wanted to drive Ashley’s car. According to the testimony, in order for R ichcreek to drive the vehicle, Ashley had to be present as the titled owner. Richcre ek was upset whenCase No. 11-20-03

-7- Ashley said she could not go with him because she did not have child care for one

of her children. {¶15} As the day progressed, Ashley and Anthony went to a relative’s residence to help her move a couch. Anthony was consuming alco holic beverages. They later returned to the residence and received a call from R ichcreek wherein Richcreek claimed he was being chased by two Ohio State Highway Patrolman. Richcreek testified at trial that he was joking; however, Antho ny left the residence to try and find Richcreek. He was not successful and returned to the residence. {¶16} Late on August 9, 2019, into the early morning hours of August 10, 2019, Richcreek, Ashley, and Anthony were all back at the resid ence. Richcreek wanted to get cigarettes but either because his vehicle was blo cked in, because it was low on gas, or because he wanted Ashley to drive him, Richc reek asked Ashley to take him to get cigarettes. Anthony volunteered to drive in stead. {¶17} Richcreek, Ashley, and Anthony all went outside on the porch. An argument ensued between Richcreek and Anthony. At some point R ichcreek pulled

out a .38 revolver and shot a white diesel truck twice. He wou ld claim he was just doing it to prove the truck was indestructible. {¶18} After shooting the truck, Richcreek complained that Ashley’s ti res needed rotated on her vehicle. Ashley responded that she had n ot had time to get them rotated. Richcreek replied by saying that it was not Ashl ey’s responsibilityCase No. 11-20-03

-8- but Anthony’s “because he was the man” and she was not supposed to be doing it. (Tr. at 278). An argument ensued between Richcreek and Anthony , and it escalated to shoving. Anthony pushed Richcreek to the ground. Ashley st ated she was only about five feet away from the altercation, and she testified th at while Richcreek was on the ground, Anthony went down over top of him. [Anthony] told [Richcreek] he didn’ t want to fight. He don’t like to fight. He just didn’t want to do it, because they’re brothers, and there was no reason to fight him, or something like that. As he was going down over top of him, that is when [Richcreek] reached into the back of him, or into his [own] bac k, behind him, and pulled out the gun and shot [Anthony] once in the stomach. And as Anthony was coming up, he shot him again through the chest. (Tr. at 279-280). {¶19} Ashley called 911, and that recording was played for the jury. On the call, Ashley initially stated that Anthony had been shot by som eone coming onto the property and that the person then took off. She stated tha t she did not see the vehicle. Dispatch asked Ashley if she knew who shot Anthony ag ain and she said another time that the shooter came up in a car and took off. L ater in the call Richcreek can be heard stating that Anthony was shot by someone in a black truck, and that the truck went toward a dirt road. Ashley briefly got off of the call withCase No. 11-20-03

-9- 911 to check on her children, but when she returned she began t o perform CPR on Anthony until police and first responders arrived. {¶20} Both Ashley and Richcreek were interviewed at the scene while Anthony was given medical attention. Those interviews were rec orded and played for the jury. Ashley initially reiterated that she heard gunsh ots and saw a truck or an “expedition” leave the area. However, Ashley was interviewe d a short time later

and she told officers at the scene that Richcreek had shot Anth ony after the two men started fighting. {¶21} Richcreek made an initial statement to police that he heard fou r shots

while he was outside of the residence and that he ducked for co ver. He maintained the story that it was a drive-by shooting. After officers spok e with Ashley alone, they confronted Richcreek and he changed his story. At that ti me, Richcreek told a second story, stating that he got into a fight with Anthony and that Anthony had pulled out a gun. Richcreek claimed that he grabbed Anthony’s gun and they wrestled, causing two shots to fire into the truck. Richcreek claimed that afterward, as Anthony was fighting for the gun, Anthony was shot twice at close range, accidentally. {¶22} Although he claimed Anthony was shot accidently, Richcreek late r told Police that he feared for his life and had to shoot Anthon y. Richcreek told police that after Anthony was shot, Richcreek had taken the rev olver and thrown itCase No. 11-20-03

-10- into a nearby pond. He showed them where he had thrown the wea pon and the gun was eventually recovered. It was test-fired and found to match the bullets that struck Anthony. {¶23} Anthony died as a result of multiple gunshot wounds. Richcreek was arrested at the scene and he was interviewed again at the Sheri ff’s Department. At the Sheriff’s Department he changed his story yet again. There , he claimed that after Anthony knocked him to the ground, Richcreek saw Anthony reaching for something at his side or behind his back. Richcreek stated tha t he knew Anthony carried a gun, so he thought Anthony was reaching for a firearm . Richcreek stated that he carried a gun himself to protect himself and his childr en from Anthony. Richcreek claimed that when Anthony reached for a potential wea pon, Richcreek pulled out his own revolver and shot Anthony. He was adamant i n this final interview that he felt his life was in danger, and that he was acting in self-defense. {¶24} At trial, Ashley admitted that she kept a loaded firearm in the residence. This firearm was recovered inside the home, not on or near Anthony. Ashley affirmatively testified at trial that it was Richcreek w ho shot Anthony, and that Anthony was not trying to fight with Richcreek any further after Richcreek was knocked to the ground. However, when she was asked why she ini tially told the story to 911 about a drive-by, Ashley stated that Richcreek mad e up that story andCase No. 11-20-03

-11- said it first. She stated that Richcreek was right beside her when she made the 911 call and she was uncertain at what point he ran off to throw th e firearm in the pond. {¶25} By contrast, Richcreek testified that Ashley came up with the s tory about the drive-by and he just went along with it. There were some indications from the testimony that Ashley still had an occasional sexual relati onship with Richcreek and that Richcreek hoped Ashley would leave Anthony for him. R egardless, Richcreek testified that he was scared of his brother Anthony, who was much bigger and had been affiliated with a gang while in prison for a viole nt offense. {¶26} Notably, a neighbor testified at trial that she was awakened by the first two gunshots coming from the residence in question. She stated that after she heard the second two gunshots she called 911 then went outside and le arned that Anthony had been shot. She testified that she had observed Anthony bei ng violent with a puppy in the past, and that she had seen Anthony yelling at the children and Ashley. Further, Richcreek and Anthony’s other brother—Michael—testifie d at trial that Anthony had made threats to Richcreek in the past and that Anth ony became more violent and temperamental after leaving prison. {¶27} Following the presentation of all of the testimony and evidence , Richcreek was convicted of voluntary manslaughter with a firear m specification.Case No. 11-20-03

-12- Analysis {¶28} There is no dispute in this case that Richcreek shot and killed his brother Anthony with a .38 revolver. However, on appeal, Richc reek contends that the evidence actually supported a finding that he acted in self -defense rather than a finding that he acted “while under the influence of sudden pass ion or in a sudden fit of rage * * * brought on by serious provocation.” R.C. 2903.03 (A). In support of his self-defense claim, Richcreek points to Ashley’s testimony wherein Ashley stated that Anthony was shot while he was “going down over top of [Richcreek].” (Tr. at 280). He also points to the testimony of the State’s e xpert witness who indicated that the bullet that hit Anthony in the chest took a “slightly” downward tract. ( Id . at 328). Richcreek argues that this shows that Anthony was l eaning over Richcreek and that Anthony was going to continue his attack on him after Richcreek was knocked to the ground. {¶29} Further, Richcreek argues there was evidence presented that Ant hony had a violent history, that he had violent tendencies, and that Richcreek was in fear of him. In addition, Richcreek stated that he had seen Anthony shoot a firearm on the property before, and there was a firearm recovered from the house. Richcreek maintains that the jury clearly lost its way in this matter bec ause the evidence established that he had reasonable grounds to believe that he w as in imminent or immediate danger of great bodily harm or death.Case No. 11-20-03

-13- {¶30} Importantly, the jury in this case was actually instructed on s elfdefense, per Richcreek’s request. Thus the matter was before t he jury for consideration, and the jury rejected it. This is particularly significant because the jury was able to see and hear the testimony of all of the witne sses. The jury did not find Richcreek’s final story credible, and we will not second-g uess a jury’s credibility determinations. State v. Gribben , 3d Dist. Seneca No. 13-19-50, 2020- Ohio-3083, ¶ 30, citing State v. DeHass , 10 Ohio St.2d 230, 231 (1967). {¶31} Moreover, the jury had reason to be skeptical of Richcreek’s se lfdefense claim given that Richcreek gave multiple stories about what occurred. He initially attempted to blame the incident on a drive-by shootin g, then he attempted to state that Anthony actually pulled a firearm on Richcreek, a nd later he admitted he had pulled the gun on Anthony and shot Anthony twice. Richc reek’s stories shifted when they did not comport with the evidence in front of the officers investigating the matter. {¶32} Furthermore, there are several key components of properly using deadly force in self-defense, any one of which could have cause d Richcreek’s claim of self-defense to fail. In order to constitute self-defense, Richcreek could not be at fault in creating the situation giving rise to the death of Ant hony, he had to have reasonable grounds to believe he was in imminent danger of deat h or great bodily harm and the only means of escape was in the use of deadly forc e, and he could notCase No. 11-20-03

-14- violate any duty to retreat or avoid the danger. See State v. Chavez , 3d Dist. Seneca No. 13-19-05, 2020-Ohio-426, ¶ 39, appeal not allowed , 160 Ohio St.3d 1439, 2020-Ohio-4983, ¶ 39, citing State v. Bagley , 3d Dist. Allen No. 1-13-31, 2014- Ohio-1787, ¶ 16. {¶33} In this case the jury could have readily determined that the St ate established beyond a reasonable doubt that Richcreek was at fau lt in creating the situation, particularly since he was the one who shot the truck twice with his revolver before the altercation occurred, and also because Rich creek sought to antagonize Anthony over not taking proper care of Ashley as he saw it. Additionally, the jury also could have determined that Richcree k did not have a reasonable belief that he was in imminent danger of death or gr eat bodily harm. Although Anthony had a violent history there is no indication h e had previously caused great bodily harm to Richcreek, and there was no indicat ion Anthony was carrying a weapon other than Richcreek’s self-serving statement that Anthony often did carry a weapon. In fact, contrary to Richcreek’s statement s, there was testimony from Ashley that Anthony did not want to continue to fight. {¶34} Officers also took pictures of Richcreek that did not show Rich creek had been struck by Anthony as he had claimed. When considering the evidence altogether, there are paths consistent with a jury’s finding th at the State established beyond a reasonable doubt that Richcreek did not act in self-de fense, and we areCase No. 11-20-03

-15- bound to give an interpretation consistent with the verdict. See State v. McNichols , 4th Dist. No. 19CA3681, 2020-Ohio-2705, ¶ 10, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21. {¶35} Finally, in this case the jury determined that Richcreek was ac ting under the influence of sudden passion or a fit of rage, brought on by serious provocation of the victim. There was clear testimony presented that there was a turbulent history between the brothers, including Anthony’s ong oing relationship with Ashley, the mother of Richcreek’s children. There was als o clear testimony that there was a fight between the brothers just before Anthony was shot. Richcreek was already in a state where he had fired two bullets at a truc k, and he was evidently upset over how Anthony was caring for Ashley. This could suppo rt a finding of a sudden passion or fit of rage by the jury. {¶36} Based on all of the evidence presented, we cannot find that the jury clearly lost its way by convicting Richcreek of voluntary mansl aughter. We also cannot find that the jury clearly lost its way by determining t hat Richcreek’s actions were not in self-defense. For all of these reasons, Richcreek’ s first assignment of

error is overruled. 1

1 Richcreek does not appear to challenge the firearm specificati on; however, even if he did challenge this issue on appeal, he testified himself that he carried and used a firearm in this matter.Case No. 11-20-03

-16- Second Assignment of Error {¶37} In his second assignment of error, Richcreek argues that when h e was sentenced in this case the trial court did not properly weigh t he principles and purposes of sentencing under R.C. 2929.11 or the seriousness an d recidivism factors

under R.C. 2929.12.

Standard of Review {¶38} Under R.C. 2953.08(G)(2), an appellate court will reverse a sen tence “only if it determines by clear and convincing evidence that th e record does not support the trial court’s findings under relevant statutes or t hat 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 produc e in the mind of the trier of facts a firm belief or conviction as to the facts soug ht to be established.’” Id. at ¶ 22, quoting Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph three of the syllabus. Relevant Authority {¶39} “ ‘The trial court has full discretion to impose any sentence w ithin the authorized statutory range, and the court is not required to ma ke any findings or give its reasons for imposing maximum or more than [a] minimum sente nce[ ].’ ” State

v. Castle , 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v. King , 2d Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45; State v. White , 3dCase No. 11-20-03

-17- Dist. Marion No. 9-19-32, 2020-Ohio-717, ¶ 8. Nevertheless, wh en exercising its sentencing discretion, a trial court must consider the statutor y policies that apply to every felony offense, including those set out in R.C. 2929.11 a nd R.C. 2929.12.

State v. Kerns , 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing State v.

Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. {¶40} Revised Code 2929.11 provides that sentences for a felony shall be guided by the overriding purposes of felony sentencing: “to pro tect the public from future crime by the offender and others, to punish the offender , and to promote the effective rehabilitation of the offender using the minimum sanc tions that the court determines accomplish those purposes without imposing an unnece ssary burden on state or local government resources.” R.C. 2929.11(A). In orde r to comply with those purposes and principles, R.C. 2929.12 instructs a trial c ourt to consider various factors set forth in the statute relating to the seriou sness of the offender’s

conduct and to the likelihood of the offender’s recidivism. R.C . 2929.12(A)-(E). Analysis {¶41} In this case, Richcreek was convicted of voluntary manslaughter in violation of R.C. 2903.03(A), a first degree felony. Pursuant to R.C. 2929.14(A)(1)(a), the prison term for a first degree felony “sh all be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum ter m that is determinedCase No. 11-20-03

-18- pursuant to section 2929.144 of the Revised Code[.]” Under R.C . 2929.144(B)(1), the maximum prison term for a qualifying felony of the first de gree shall be equal to the “minimum term imposed * * * plus fifty per cent of that term.” Here, Richcreek was sentenced to serve an indefinite prison term with a stated minimum of 8 years, and a maximum of 12 years. This prison term is wit hin the appropriate statutory range and compliant with the relevant statutes, there fore it is presumptively valid. 2 State v. Maggette , 3d Dist. Seneca No. 13-16-06, 2016-Ohio5554, ¶ 31. {¶42} Moreover, at the sentencing hearing, the trial court explicitly stated that it considered the principles and purposes of sentencing un der R.C. 2929.11 and

that it had balanced the seriousness and recidivism factors und er R.C. 2929.12. In fact, the trial court actually considered mitigating circumstan ces on the record. The trial court’s findings were incorporated into its judgment entr y. {¶43} Importantly, “[a] trial court’s statement that it considered th e required statutory factors, without more, is sufficient to fulfill its o bligations under the sentencing statutes.” Maggette , 2016-Ohio-5554, at ¶ 32, citing State v. Abrams , 8th Dist. Cuyahoga No. 103786, 2016-Ohio-4570, citing State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. Thus not only was the sentenc e in this case

2 Though not really contested, the one year mandatory prison ter m for the firearm specification is also compliant with the sentencing statute. See R.C. 2929.14(B)(1)(a)(iii).Case No. 11-20-03

-19- presumptively valid, the trial court also indicated that it con sidered the appropriate statutes. Under these circumstances, we cannot find that Richc reek demonstrated that his sentence was clearly and convincingly contrary to law. {¶44} Furthermore, to the extent that Richcreek seeks to have this Co urt modify his sentence, we emphasize that a recent decision of the Supreme Court of Ohio, State v. Jones , --- Ohio St.3d ---, 2020-Ohio-6729, forecloses Richcreek’s argument. 3 In Jones , the court held that R.C. 2953.08(G)(2) “does not provide a basis for an appellate court to modify or vacate a sentence bas ed on its view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. In reaching this conclusion, the Court observed that while “R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a sentence if it clearly and convincingly finds that ‘the record does not suppor t the sentencing court’s findings under’ certain specified statutory provisions[ ,] * * * R.C. 2929.11 and 2929.12 are not among the statutory provisions listed in R. C. 2953.08(G)(2)(a).” Id. at ¶ 28. Moreover, the Court explained that “an appellate court’s determination that the record does not support a senten ce does not equate to a determination that the sentence is ‘otherwise contrary to law ’ as that term is used

3 Because Jones was decided after Richcreek submitted his initial appellate br ief in this case, he did not have the opportunity to address its applicability. However, Jones “does not change the law” but instead “clarifies existing law and precedents.” State v. Roberts , 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio-90, ¶ 81, fn. 2. Therefore, we elect to apply Jones to the instant case without the benefit of supplemental briefi ng.Case No. 11-20-03

-20- in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Accordingly, “pursuant to Jones , an appellate court errs if it * * * modifies or vacates a sentence ‘based on the lack of support in the record for the trial court’s findings under R.C. 2929.11 and R.C.

2929.12.’ ” State v. Dorsey , 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17, quoting Jones at ¶ 29. {¶45} Even if we were to agree with Richcreek that his sentence was n ot supported by the record under R.C. 2929.11 and 2929.12—to be cl ear, we do not— in light of the Supreme Court of Ohio’s holding in Jones , we could not vacate or modify Richcreek’s sentence on that basis. As discussed above, Richcreek’s sentence is within the statutory range and it is clear that the trial court considered R.C. 2929.11 and 2929.12. Thus, Richcreek’s sentence is not cl early and convincingly contrary to law, and it must therefore be affirmed

. See State v.

Roberts , 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio-90, ¶ 103 (con firming that R.C. 2953.08(G)(2)(b) does not allow an appellate court to vacate or modify a sentence based on the court’s view that the sentence is not sup ported by the record under R.C. 2929.11 and 2929.12 and upholding the defendant’s se ntence because the trial court “complie[d] with applicable rules and sentencin g statutes [and] [t]he sentence was within the statutory sentencing range”); Dorsey at ¶ 18-19 (determining that, after Jones , courts “simply must determine whether [sentences that are imposed solely after considering R.C. 2929.11 and 2929 .12] are contrary toCase No. 11-20-03

-21- law,” which means assessing whether the sentence is within the statutory range for

the offense and whether the trial court considered R.C. 2929.11 and 2929.12)[.] For all of these reasons, Richcreek’s second assignment of error is overruled.

Conclusion {¶46} For the foregoing reasons Richcreek’s assignments of error are overruled and the judgment of the Paulding County Common Pleas Court is

affirmed. Judgment Affirmed WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur. /jlr