[Cite as State v. Harris , 2019-Ohio-4711.]

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

State of Ohio Court of Appeals No. WD-18-077 Appellee Trial Court No. 2015CR0174

v. Micah Harris DECISION AND JUDGMENT Appellant Decided: November 15, 2019

* * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.

* * * * * MAYLE, P.J. {¶ 1} Appellant, Micah Harris, appeals the September 11, 2018 judgmen t of the Wood County Court of Common Pleas sentencing him to 12 months i n prison following his violation of previously imposed community control condition s. For the reasons that follow, we affirm the trial court’s judgment.2. I. Background {¶ 2} On May 7, 2015, appellant Micah Harris was indicted on one coun t of trafficking in marijuana in violation of R.C. 2925.03(A)(2)(C)( 3)(a), a fifth-degree felony, with a forfeiture specification pursuant to R.C. 2941.1 417(A). Harris was arraigned on May 12, 2015. He subsequently entered a guilty pl ea on July 20, 2015. At that time, and pursuant to R.C. 2951.041, the trial court agree d to Harris’s request for intervention in lieu of conviction. The trial court ordered ap pellant to refrain from alcohol consumption and attend an alcohol treatment program for one year as the terms of his intervention. Harris did not object to the terms and the t rial court stayed all proceedings pending appellant’s completion of the intervention program. {¶ 3} On December 11, 2015, Harris appeared before the trial court fo r a hearing on an alleged violation of the conditions of his intervention i n lieu of conviction—the consumption of alcohol. While Harris stipulated to the violati on, the trial court agreed to continue appellant’s intervention under the same conditions. H arris again appeared before the trial court on July 1, 2016, following the state’s a llegation that appellant again

consumed alcohol in violation of the terms of his intervention program. The trial court determined Harris had consumed alcohol and terminated appellant ’s intervention. With intervention terminated, the trial court found Harris guilty of trafficking in marijuana, the sole count in the original indictment, based on his previous gu ilty plea. On August 12, 2016, the trial court sentenced appellant to community control for a period of 2 years and notified him that violation of community control terms could le ad to a prison term of 123. months. While on community control, appellant was ordered to c omplete an alcohol treatment program and not to consume alcohol. The trial court also suspended appellant’s driver’s license for six months with driving privil eges granted for employment, treatment, and probation. {¶ 4} On November 4, 2016, Harris appeared before the trial court for a hearing on a community control violation following a conviction for undera ge consumption. The trial court did not revoke Harris’s community control but did o rder two months of electronic alcohol monitoring to ensure Harris’s compliance wit h the no alcohol consumption term of his community control. {¶ 5} Harris again appeared before the trial court on September 5, 20 17, for a hearing on a community control violation based on his consumpti on of alcohol. Harris stipulated to the violation and requested the trial court proce ed to disposition. The trial court again continued Harris’s community control but imposed ad ditional conditions including the completion of an alcohol abuse treatment program, drug and mental health screenings, and the completion of any recommended treatment ari sing from those screenings. {¶ 6} Finally, on September 11, 2018, Harris appeared before the tria l court on another violation of the community control provisions. Harris stipulated to the violation in that he had moved to Southern Ohio and absconded from the pr obation department’s supervision of his community control conditions. The trial cou rt accepted the stipulated4. violation, revoked Harris’s community control, and imposed the 12-month prison sentence. Harris appealed and asserts a single assignment of e rror: The trial court did not comply with R.C. 2929.11 and 2929.12 i n sentencing Appellant to twelve months in the Ohio Department of Rehabilitation & Corrections instead of ordering community cont rol

sanctions. II. Law and Analysis {¶ 7} Harris argues his sentence was contrary to law because the tria l court failed to “follow the directives of either R.C. 2929.11, The Purposes and Principles of Sentencing or R.C. 2929.12, Seriousness and Recidivism Factors” when determining the appropriate sentence. We review felony sentences under R.C. 29 53.08(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 if we clearly and convincingly find either of the following: “(a) the record does not support the sentenc ing 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 Revised 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. 2953.08(G)(2). {¶ 8} Appellant bears the burden of identifying clear and convincing evidence the sentence imposed was contrary to law. State v. Williams , 6th Dist. Lucas No. L-13-1083, 2014-Ohio-3624, at ¶ 7-11, 16, R.C. 2953.08(G)(2). A felony sentence is contra ry to law5. if the trial court, as appellant argues here, failed to conside r the purposes of felony sentencing set forth in R.C. 2929.11 and the seriousness and re cidivism factors set forth in R.C. 2929.12 when determining the appropriate sentence. Id. at ¶ 8. A trial court’s

statement that it has considered R.C. 2929.11 and 2929.12 in de termining a sentence is sufficient to show the trial court’s compliance with these requ irements. State v.

Brimacombe , 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11 (6 th Dist.). If the trial court fails to specifically state that it followed these statutes, it is still presumed that the trial court gave proper consideration to R.C. 2929.11 and 2929.12. Yeager at ¶ 13, citing State v. Sims , 6th Dist. Sandusky No. S-13-037, 2014-Ohio-3515, ¶ 10. Indeed, this presumption applies even if the trial court fails to reference R.C. 2929.11 and 2929.12 at both the sentencing hearing and in the s ubsequent sentencing entry. State v. Perkins , 6th Dist. Sandusky No. S-18-010, 2019-Ohio-2049, ¶ 22, citing

State v. Seele , 6th Dist. Sandusky No. S-13-025, 2014-Ohio-1455, ¶ 19 (applyi ng the presumption where “the trial court did not specifically indicat e either at sentencing or in its judgment entry that it considered these statutes.”) The bu rden is on the appellant to rebut this presumption. Yeager at ¶ 13 , citing State v. Smith , 6th Dist. Sandusky No. S-14-037, 2015-Ohio-1867, ¶ 11. Appellant’s rebuttal must be s upported with clear and convincing evidence. See Williams at ¶ 7-11; 16, R.C. 2953.08(G)(2). {¶ 9} Here, Harris argues that “[a]lthough the judgment entry in this case references R.C. 2929.11 and 2929.12, the court made no mention of it’s [sic] consideration of the statutes at appellant’s sentencing hearing [.]” Harris, however, fails6. to identify any evidence—let alone clear and convincing evidenc e—to rebut the presumption that the trial court nonetheless considered the nec essary sentencing factors under R.C. 2929.11 and 2929.12 at the sentencing hearing. {¶ 10} Moreover, the sentencing entry clearly states that the trial co urt considered

R.C. 2929.11 and 2929.12 when it determined Harris’s sentence. It stated: after consideration of any additional relevant factors and the recidivism and seriousness factors under R.C. 2929.12, the Cour t finds that a prison term is consistent, based upon the overriding purposes and principles of sentencing set forth in R.C. 2929.11. Further, t he Court finds the Defendant is no longer amenable to any available community control sanction and is unsuccessfully terminated from community contro l. The trial court is “not obligated to give a detailed explanatio n of how it algebraically applied each seriousness and recidivism factor to the offender. Indeed, no specific recitation is required.” Brimacombe , 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, at ¶ 11, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). The trial court’s statement that it considered R.C. 29 29.11 and 2929.12 in determining the sentence is sufficient to show its compliance w ith these requirements.

Id

. {¶ 11} Despite this, Harris claims that “the trial court did not consi der mitigating factors or Appellant’s need for mental health counseling and tr eatment[.]” That is, Harris claims that he acknowledged his crime was compelled by drug add iction, that he7. expressed genuine remorse, that he wished to continue mental he alth treatment, and that he has “minimal” criminal history. He argues these factors wei gh in his favor under R.C. 2929.12(D)(4), 2929.12(D)(5), and 2929.12(E). Harris also argu es that none of the R.C. 2929.12(B) seriousness factors are applicable to his case. Ess entially, Harris argues that because the factors he believes weighed in his favor did not re sult in his desired lesser sentence—the continuation of community control—the trial court must have given those factors insufficient weight. {¶ 12} The trial court, however, has the sole discretion to determine the weight afforded to any particular statutory factor when imposing a fel ony sentence. State v.

Stubbs , 10th Dist. Franklin No. 13AP-810, 2014-Ohio-3696, ¶ 16. Furt her, the trial court was not required to provide any recitation as to how it weighed these factors. Id.

Harris’s failure to receive the desired result does not mean th e factors were not considered and weighed by the trial court. {¶ 13} The trial court’s statement that it considered R.C. 2929.11 and 2929.12 in determining appellant’s sentence is sufficient to show its comp liance with those requirements. Brimacombe at ¶ 11. Appellant identifies no evidence to support his contention the sentence imposed was contrary to law and fails t o satisfy his burden as established in R.C. 2953.08(G). The trial court did not err in imposing appellant’s 12-month prison sentence.8. III. Conclusion {¶ 14} We find appellant’s assignment of error not well-taken. The tr ial court properly considered the purposes and principals of sentencing u nder R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, and Harris presented no clear and convincing evidence that the sentence was contrary to law. We affirm the September 11, 2018 judgment of the Wood County Court of Common Pleas. Harris is ordered to pay the costs of this appeal pursuant to 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.

Arlene Singer, 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/.