[Cite as State v. Bennett , 2019-Ohio-4608.]

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

State of Ohio Court of Appeals No. H-18-020 H-18-021 Appellee Trial Court No. CRI 20180400 v. CRI 20180502

Jeremiah M. Bennett DECISION AND JUDGMENT Appellant Decided: November 8, 2019

* * * * * James Joel Sitterly, Huron County Prosecuting Attorney, for ap pellee. Autumn D. Adams, for appellant.

* * * * * ZMUDA, J. {¶ 1} In this consolidated appeal, appellant, Jeremiah M. Bennett, ap peals the December 12, 2018 judgment of the Huron County Court of Common Pleas sentencing him to an aggregate total of 12 years in prison following his c onviction for two drugrelated offenses. For the reasons that follow, we affirm the t rial court’s judgment.2. I. Background {¶ 2} On June 8, 2018, Jeremiah M. Bennett was indicted on one count of illegal manufacture of drugs, a violation of R.C. 2925.04(A)(C)(3)(a) a nd one count of illegal assembly or possession of chemicals for the manufacture of drug s, a violation of R.C. 2925.041(A)(C). The June 8, 2018 indictment was assigned Huron County Court of

Common Pleas case No. CRI 20180400. {¶ 3} On July 2, 2018, appellant was indicted on one count of illegal manufacture of drugs, a violation of R.C. 2925.04(A)(C)(3)(a); one count of illegal assembly or possession of chemicals for the manufacture of drugs, a violat ion of R.C. 2925.041(A)(C); one count of attempted illegal assembly or poss ession of chemicals for the manufacture of drugs, a violation of R.C. 2923.02 and 2925 .041(A)(C); one count of possessing drug abuse instruments, a violation of R.C. 2925.12( A)(C); one count of carrying a concealed weapon, a violation of R.C. 2923.12(A)(1)( F)(1); and one count of illegal use or possession of drug paraphernalia, a violation of R.C. 2925.14(C)(1)(F)(1). The July 2, 2018 indictment was assigned Huron County Court of Common Pleas case

No. CRI 20180502. {¶ 4} Both cases proceeded to trial on September 5, 2018. On Septemb er 7, 2018, after two days of trial, appellant and the state entered into a plea agreement. Appellant agreed to plead guilty to count one in each indictment—illegal manufacture of drugs—in exchange for dismissal of all remaining claims. The trial cour t indicated it would accept appellant’s plea deal and proceeded with the necessary plea col loquy. At its conclusion, appellant pleaded guilty to two counts of illegal manufacture o f drugs, each a second3. degree felony. The trial court found appellant guilty and proc eeded directly to sentencing without objection. {¶ 5} The trial court sentenced appellant to 6 years in prison on eac h count. The sentences were ordered to run consecutively for an aggregate pr ison term of 12 years. 1 The trial court also imposed a fine of $7,500 on each count for a total fine of $15,000. The sentence was memorialized in the trial court’s journal entr y from which appellant timely appeals. 2 Appellant assigns a single error for our review: Appellant’s sentence should be vacated due to the Trial Court’s failure to comply with the specific directives of R.C. 2929.11 and 2929.12. II. Law and Analysis {¶ 6} Appellant challenges the trial court’s judgment based on its al leged failure to consider the purpose of felony sentencing set forth in R.C. 292 9.11 and its alleged improper weighing of the seriousness and recidivism factors est ablished in R.C. 2929.12

1 We note that both appellant and the state provide arguments wi th respect to the imposition of consecutive sentences. However, appellant did no t raise the imposition of consecutive sentences as error by the trial court but only refe rences the consecutive sentence in regard to its argument the trial court failed to im pose the minimum sanction necessary under R.C. 2929.11. Therefore, we do not address whe ther the order to serve the sentences consecutively was proper under R.C. 2929.14.

2 Due to an apparent clerical error, the trial court failed to d ismiss the remaining counts in case No. CRI 20180400. As a result, that count remained pendin g and the sentencing entry was not a final order in accordance with Crim.R. 32(C). On December 11, 2018, we stayed appellate proceedings and remanded this matter back t o the trial court for a corrected order disposing of all remaining charges. The trial court entered a nunc pro tunc judgment entry correcting the error on December 12, 2018, and appellate briefing continued in accordance with App.R. 18. All references made in this decision are to the corrected December 12, 2018 judgment entry.4. in determining appellant’s sentence. We review felony sentence s under R.C. 2953.08(G)(2). State v. Goings , 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or vacate and remand a judgment only i f we clearly and convincingly find either of the following: “(a) the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the R evised Code, whichever, if any, is relevant” or “(b) the sentence is otherwise contrary to law.” State v. Yeager , 6th Dist. Sandusky No. S-15-025, 2016-Ohio-4759, ¶ 7, citing R.C. 2 953.08(G)(2). A sentence is indeed contrary to law if the trial court, as defen dant argues here, fails to consider the purposes of felony sentencing set forth in R.C. 29 29.11 and the seriousness

and recidivism factors set forth in R.C. 2929.12 when determini ng the appropriate

sentence. State v. Williams , 6th Dist. Lucas No. L-13-1083, 2014-Ohio-3624, ¶ 8. However, a trial court’s statement that it has indeed considere d R.C. 2929.11 and 2929.12 in determining a sentence is sufficient to show the trial court ’s compliance with these requirements. State v. Brimacombe , 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11 (6th Dist.). Appellant bears the burden of identify ing clear and convincing evidence the sentence imposed was contrary to law. Williams at ¶ 7-11, 16, R.C. 2953.08(G)(2). {¶ 7} R.C. 2929.11(A) establishes the purposes of felony sentencing. These purposes include promotion of “the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those pu rposes without imposing an unnecessary burden on state or local government res ources.” Appellant5. argues his sentence was contrary to law because the trial court did not impose the minimum mandatory sentence. In support of this argument, appel lant claims the trial court “could have imposed the minimum mandatory of three (3) ye ars upon Appellant[.]” Appellant also argues that ordering appellant’s sentences to ru n consecutively “does not comport” with the promotion of rehabilitation using the minimum sanctions to accomplish that purpose. Essentially, appellant argues that be cause he did not receive the minimum mandatory sentence that the trial court must have faile d to consider the purposes of felony sentencing. These arguments are in direct c ontrast to the record

before us. {¶ 8} At the sentencing hearing, the trial court specifically referen ced R.C. 2929.11(A) and the purposes of felony sentencing. This referen ce alone is sufficient to show the trial court’s consideration of the purposes of felony sentencing. Brimacombe at ¶ 11. The trial court here went beyond what was required of it under Brimacombe and expressly described its rationale for imposing the 6 year priso n term on each count and not the mandatory minimum. It stated “[t]he Court is cognizant of those purposes including the protection of the public from future crimes by th e Defendant, the protection of the public from future crimes by others, and the minimum san ctions the Court determines will accomplish those purposes without imposing an u nnecessary burden on state or local government resources.” The trial court then ide ntified the sentencing alternatives it considered “[i]n attempting to achieve those ov erriding purposes[.]” The December 12, 2018 judgment entry memorializing the sentence imp osed at the hearing also notes the trial court’s consideration of the purposes of f elony sentencing. Appellant6. points to no evidence to suggest the trial court failed to cons ider R.C. 2929.11 in imposing that sentence. The trial court openly considered the purposes of felony sentencing established in R.C. 2929.11 in determining appellant ’s sentence and, accordingly, appellant’s argument is without merit. {¶ 9} Next, appellant’s argument regarding the trial court’s consider ation of

seriousness and recidivism factors described in R.C. 2929.12 li kewise fails. Again, appellant bears the burden of identifying clear and convincing evidence the sentence imposed was contrary to law. See Williams at ¶ 7-11, 16, R.C. 2953.08(G)(2). Appellant argues the trial court “gave insufficient weight to the mitigat ing factors of Appellant’s case.” The mitigating factors which weigh in his favor, appell ant argues, are that he apologized to the court, admitted his drug addiction drove him to commit these crimes, and that he now wishes to seek treatment for his drug use. The refore, the trial court should have imposed the minimum mandatory sentence so he could “begin his drug rehabilitation quicker.” {¶ 10} Our review of the record shows the trial court did consider the factors identified in R.C. 2929.12 when determining appellant’s sentenc e. At the sentencing hearing, the trial court acknowledged appellant’s arguments reg arding the factors which might weigh in his favor. Despite appellant’s argument, the tr ial court stated the recidivism factors warranted a prison sentence beyond the manda tory minimum for each count. It noted “you were on post-release control at the time that you committed the offense. Your criminal history is very significant and has a l engthy felony history, including a drug charge, attempted robbery, robbery, and also m ore recently a CCW as7. well.” Having considered these factors, the trial court determ ined the appropriate sentence included six years in prison on each count, to be serv ed consecutively. The trial court’s sentencing entry likewise reveals its consideration of the R.C. 2929.12 seriousness and recidivism factors and identifies its weighing of these factors in determining appellant’s sentence. {¶ 11} Appellant’s argument is essentially that because the factors he believes weighed in his favor did not result in his desired lesser sente nce, that the trial court gave those factors insufficient weight. The trial court determines the weight afforded to any particular statutory factor when imposing a felony sentence. State v. Stubbs , 10th Dist. Franklin No. 13AP-810, 2014-Ohio-3696, ¶ 16. The trial court w as not required to provide any recitation as to how it weighed these factors. Brimacombe at ¶ 11, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Nevertheless, t he trial court provided appellant, both at the sentencing hearing and in its judgment entry, a detailed explanation of how it weighed the R.C. 2929.12 serious ness and recidivism factors and why it was imposing the sentence it did. The fact that appellant did not

receive the sentence he desired does not mean the factors were not considered and weighed by the trial court. Accordingly, appellant’s argument regarding the trial court’s allegedly improper weighing of the seriousness and recidivism f actors established in R.C.

2929.12 is unfounded. {¶ 12} Appellant has failed to identify any evidence to show the sentence imposed was contrary to law and, therefore, having failed to satisfy hi s burden as established in R.C. 2953.08(G), we conclude the trial court did not err in its sentence of appellant.8. III. Conclusion {¶ 13} We find appellant’s assignment of error not well-taken. We the refore affirm the December 12, 2018 judgment of the Huron County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant t o App.R. 24.

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.

Thomas J. Osowik, J. ____________________

___________ JUDGE Christine E. Mayle, P.J.

_______________________________ Gene A. Zmuda, 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/.