[Cite as State v. Taylor , 2020-Ohio-1648.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO Plaintiff-Appellee

v. ALEX TAYLOR Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-62

Trial Court Case No. 2019-CR-31 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 24th day of April, 2020.

. . . . . . . . . . . JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting At torney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Spring field, Ohio 45502 Attorney for Plaintiff-Appellee CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 West Second S treet, Suite 830, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . DONOVAN, J.-2- {¶ 1} Defendant-appellant Alex Taylor appeals his conviction and sent ence for one count of aggravated possession of drugs (methamphetamine), in v iolation of R.C. 2925.11(A), a felony of the third degree. Taylor filed a timel y notice of appeal with this Court on August 16, 2019. {¶ 2} The incident which formed the basis for Taylor’s conviction occ urred on July 7, 2018, when Taylor was a passenger in a vehicle stopped by th e police. The officers who initiated the traffic stop asked Taylor if they could searc h a closed bag in his possession, and Taylor consented to the search. Upon searching the bag, the officers discovered approximately 3.05 grams of methamphetamine separate ly packaged in four plastic baggies. The officers also found a digital scale and a dditional baggies in Taylor’s bag. Taylor was arrested and taken into custody. {¶ 3} On January 14, 2019, Taylor was indicted for the following offe nses: Count I, aggravated trafficking in drugs, in violation of R.C. 2925.0 3(A)(2), a felony of the third degree; Count II, aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of the third degree; and Count III, possession of criminal tool s, in violation of R.C. 2923.24(A), a felony of the third degree. At his arraignment o n April 26, 2019, Taylor pled not guilty to the charged offenses, and the trial court pl aced him on a conditional own recognizance (C.O.R.) bond. {¶ 4} On May 29, 2019, Taylor filed a motion to suppress any physical evidence retrieved by the police during the search of his bag, as well a s any statements he made to the police during the course of his arrest. When Taylor fai led to appear for the motion to suppress hearing scheduled for June 14, 2019, the trial cour t issued a capias for his arrest. Defense counsel orally withdrew the motion to suppress on the same date.-3- Taylor was arrested and taken back into custody on June 19, 201 9. {¶ 5} On July 16, 2019, Taylor pled guilty to Count II, aggravated po ssession of drugs, in return for dismissal of the remaining counts. The tr ial court ordered a presentence investigation report (PSI) from the Adult Probation Department. On August 6, 2019, the trial court sentenced Taylor to 18 months in priso n. {¶ 6} It is from this judgment that Taylor now appeals. {¶ 7} Taylor’s sole assignment of error is as follows:

THE COURT ERRED WHEN IT IMPOSED AN EIGHTEEN MONTH

SENTENCE BY FAILING TO PROPERLY CONSIDER THE PRINCIPLES

AND PURPOSES OF SENTENCING SET FORTH BY THE OHIO

REVISED CODE. {¶ 8} Taylor argues that the trial court failed properly consider the purposes and principles of sentencing before it ordered him to serve an 18-m onth sentence for one count of aggravated possession of drugs. {¶ 9} As this Court has previously noted: “The trial court has full discretion to impose any sentence wi thin 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 minimum

sentences.” State v. King , 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consi der the statutory policies that apply to every felony offense, including those se t out in R.C.

2929.11 and R.C. 2929.12. State v. Leopard , 194 Ohio App.3d 500, 2011- Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis , 109 Ohio-4- St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. State v. Armstrong , 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12. {¶ 10} R.C. 2929.11 requires trial courts to be guided by the overridi ng purposes of felony sentencing. Those purposes are “to protect the publi c from future crime by the offender and others and to punish the offender using the minimu m sanctions that the court determines accomplish those purposes without imposing an unnece ssary burden on state or local government resources.” R.C. 2929.11(A). The court mus t “consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the vict im of the offense, the public,

or both.” Id . R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably calculated to achieve the two overriding pu rposes of felony sentencing * * *, commensurate with and not demeaning to the se riousness of the offender's conduct and its impact upon the victim, and consiste nt with sentences imposed

for similar crimes committe d by similar offenders.” {¶ 11} R.C. 2929.12(B) sets forth nine factors indicating that an offe nder's conduct is more serious than conduct normally constituting the offense. These factors include whether the physical or mental injury to the victim was exacerb ated because of the physical or mental condition of the victim; serious physical, p sychological, or economic harm suffered by the victim as a result of the offense; whether the offender's relationship

with the victim facilitated the offense; and whether the offend er committed the offense for hire or as a part of an organized criminal activity. {¶ 12} R.C. 2929.12(C) sets forth four factors indicating that an offe nder's conduct is less serious than conduct normally constituting the offense, including whether the victim-5- induced or facilitated the offens e, whether the offender acted under strong provocation, whether, in committing the offense, the offender did not cause or expect to cause physical harm to any person or property, and the existence of substantia l grounds to mitigate the offender's conduct, although the grounds are not enough to cons titute a defense. R.C. 2929.12(D) and (E) each lists five factors that trial courts ar e to consider regarding the offender's likelihood of committing future crimes. Finally, R. C. 2929.12(F) requires the sentencing court to c onsider the offender's military service re cord. {¶ 13} In reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum , 146 Ohio St.3d 516, 2016- Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an a ppellate court may increase, reduce, or modify a sentence, or it may vacate the se ntence and remand for resentencing, only if it “clearly and convincingly” finds eithe r (1) that the record does not support certain specified findings or (2) that the sentence imp osed is contrary to law. {¶ 14} In Taylor’s case, the 18-month sentence imposed by the trial co urt was well within the permissible statutory range for a conviction for agg ravated possession of drugs, a felony of the third degree. The maximum sentence a trial cou rt may impose for aggravated possession of drugs is three years, and Taylor was n otified of this at the plea hearing. We note that, at sentencing, the trial court failed t o mention the principles and purposes of sentencing pursuant to R.C. 2929.11 and/or the seri ousness and recidivism factors enunciated in R.C. 2929.12. In Taylor’s judgment entry of conviction, however, the trial court stated the following: The Court considered the PSI, record, oral statements of counse l, the defendant’s statement, and the principles and purposes of sentencing-6- under Ohio Revised Code Section 2929.11, and then balanced the

seriousness and recidivism factors under Ohio Revised Code Section

2929.12

. (Emphasis added.) Judgment Entry at 1. {¶ 15} This Court has held that a defendant's sentence is not contrary to law when the trial court expressly states in its sentencing entry that i t considered R.C. 2929.11 and R.C. 2929.12, even if the court neglected to mention these stat utes at the sentencing hearing. State v. Battle , 2d Dist. Clark No. 2014 CA 5, 2014-Ohio-4502, ¶ 15, citing State

v. Miller , 2d Dist. Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43. {¶ 16} At sentencing, the trial court stated the following regarding i ts basis for sentencing Taylor to 18 months in prison: The Court: Well, I agree with your attorney, Mr. Taylor. This is a very sad case, and I deeply sympathize with your mom, and I bel ieve everything she says. I don’t have any reason to doubt that you have been a good per son and that your future was bright, and that it all got derailed w hen you started using illegal drugs, which is what makes this case so sad. You had a lot of meth that day. A lot. Bulk amount. And you ’re trying to tell the Court that you had sectioned it out into fou r individual baggies for your own benefit so you had rationed it out for you r own personal use over four days, and I don’t believe that for a second. You had it packaged in a way that is compelling evidence of yo ur intent to distribute it. You had scales and baggies.-7- That being said, I am sentencing you for possession. You did not plead guilty to trafficking, and so I am going to sentence you for possession. I am sure you do need rehab. In fact, you have been to rehab b efore in February and March 2018 and then another seven-day detox progra m in August of 2018. You were indicted in this case on April the 26 th of 2019. One would think that a criminal indictment, a third degree fel ony, that your behavior will change, but you indicated to the probation o fficer that you used meth and heroin in May. I don’t know what caused you to get involved with illegal drug s. It is very sad, and I take no pleasure in sentencing you to prison; b ut that is the appropriate disposition in this case. I am going to follow the State’s recommendation. I am going t o order that you be sentenced to eighteen (18) months in the Ohio State Penitentiary. I will order a $5,000.00 fine. Disposition Tr. 11-12. {¶ 17} At disposition, defense counsel stated as follows: Defense Counsel: * * * With regards to my client’s actions I ju st want the Court to be made aware that he didn’t try to harm anybody. The only person he was harming was himself and his family, whi ch I felt the impact was the drug use. * * * Disposition Tr. 5. {¶ 18} Taylor argues that there was no victim in this case, and pursua nt to R.C. 2929.12(C)(2), he asserts that he caused no harm to any person or property. As noted-8- above, R.C. 2929.12(B)(2) sets forth the following factor for t he court's consideration regarding whether Taylor's conduct is more serious than conduct normally constituting possession of methamphetamine: “The victim of the offense suffe red serious physical, psychological, or economic harm as a result of the offense.” I n relevant part, R.C. 2930.01(H)(1) defines a victim as “a person who is identified a s the victim of a crime * * * in a police report or in a complaint, information or indictment that charges the commission of a crime and that provides the basis for the criminal prosecu tion * * *.” Significantly, the trial court did not explicitly find that either R.C. 2929.1 1(B)(2) or R.C. 2929.12(C)(2) applied to Taylor’s conduct. {¶ 19} Here, the trial court imposed a sentence comfortably within the permissible statutory range. The record establishes that the trial court p roperly reviewed Taylor's PSI, his statements, the statements made by his mother on his b ehalf, and the statements of counsel. “Criminal wrongdoing, even without convictions, is part of an accused's social history and thus properly included in a [PSI].” State v. Richey , 64 Ohio St.3d 353, 358, 595 N.E.2d 915 (1992). Furthermore, for purposes of sente ncing, a court “is not confined to [considering] the evidence that strictly relates to the conviction offense because the court is no longer concerned * * * with the narrow issue of guilt.” State v.

Bowser , 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.); see also

State v. Clemons , 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 8 (recognizi ng that a trial court at sentencing may take into consideration hearsay evidence, facts related to charges that were dismissed pursuant to a plea bargain, and all egations contained in a PSI report). It is apparent from the record that the trial cou rt, while sentencing Taylor only for Count II (possession of drugs), properly considered th at he had packaged the-9- methamphetamine in such a way that led to a reasonable inferenc e that he intended to sell it to others, and that despite multiple attempts at rehabi litation, Taylor still continued to use methamphetamine. {¶ 20} Accordingly, the record establishes that the trial court consid ered the principles and purposes of sentencing under R.C. 2929.11, and t hat it balanced the

seriousness and recidivism factors set forth in R.C. 2929.12. Therefore, we are unable to find “by clear and convincing evidence that the record does not support the sentence.”

Marcum at ¶ 23. The sentence is not contrary to law. {¶ 21} Taylor’s sole assignment of error is overruled. {¶ 22} The judgment of the trial court is affirmed.

. . . . . . . . . . . . .

TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

John M. Lintz Christopher C. Green Hon. Douglas M. Rastatter