[Cite as State v. Brown, 2019-Ohio-3288.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

JAMES T. BROWN 

Defendant-Appellant 

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Appellate Case Nos. 28197 and 28198 

Trial Court Case Nos. 2018-CR-2603 

and 2018-CR-2274 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 16th day of August, 2019. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 

45422 

Attorney for Plaintiff-Appellee 

 

PAMELA L. PINCHOT, Atty. Reg. No. 0071648, 345 North Main Street, Suite 2, 

Springboro, Ohio 45066 

 Attorney for Defendant-Appellant 

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DONOVAN, J. 
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{¶ 1} In Montgomery C.P. No. 2018-CR-2274, James T. Brown appeals from a 

judgment entry of conviction following a plea of guilty to one count of aggravated 

possession of drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. He was 

sentenced to 12 months in prison. In Montgomery C.P. No. 2018-CR-2603, Brown 

appeals from a judgment entry of conviction following a plea of guilty to petty theft, in 

violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. In Case No. 2018-

CR-2603, Brown was sentenced to 180 days in the Montgomery County Jail, to be served 

concurrently with the sentence in Case No. 2018-CR-2274. Brown asserts that his 

maximum sentences were not clearly and convincingly supported by the record and/or 

were contrary to law. We hereby affirm the judgment of the trial court. 

{¶ 2} On August 6, 2018, Brown was indicted for aggravated possession of drugs. 

He failed to appear for his arraignment on September 4, 2018. On September 26, 2018, 

he was charged by way of a bill of information with petty theft. On September 27, 2018, 

Brown pled guilty to both offenses. At the plea hearing, the court indicated that Brown 

had “verbally waived the right to grand jury as well as the 24-hour rule,” and that Brown 

had signed the appropriate forms to memorialize his waiver in the misdemeanor case. 

{¶ 3} Brown was sentenced on October 25, 2018. The court indicated that it had 

reviewed Brown’s presentence investigation report and that it considered the purposes 

and principles of sentencing and the seriousness and recidivism factors in imposing 

sentence for the felony offense. The court advised Brown that, upon his release, he may 

be required to serve three years of post-release control under the supervision of the 

parole board. The court disapproved placement in programs of shock incarceration and 

intensive program prison because of Brown’s criminal history. The court noted in each 
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case that Brown was entitled to 36 days of jail time credit. 

{¶ 4} Brown asserts the following assignment of error: 

THE TRIAL COURT’S IMPOSITION OF SENTENCE, WHICH WAS 

THE MAXIMUM SENTENCE OF 12 MONTHS IN PRISON FOR 

DEFENDANT-APPELLANT’S CONVICTION OF POSSESSION OF A 

CONTROLLED SUBSTANCE, A FELONY OF THE FIFTH DEGREE, AND 

SIX (6) MONTHS IN PRISON FOR DEFENDANT-APPELLANT’S 

CONVICTION OF THEFT, A MISDEMEANOR OF THE FIRST DEGREE, 

IS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD 

AND/OR IS CONTRARY TO LAW. 

{¶ 5} Brown asserts that, applying the purposes and principles of sentencing 

contained in R.C. 2929.11 and the sentencing factors contained in R.C. 2929.12 to his 

case, the maximum sentence was not appropriate. He argues that there was no 

evidence to support a finding that any factor contained in R.C. 2929.12 existed, which 

would support the conclusion that his conduct was more serious than that normally 

constituting the offense. Brown argues that there was, however, evidence in the record 

to support a finding under R.C. 2929.12(C)(3) that his conduct was less serious than 

conduct normally constituting the offense, “in that [the] very nature of the charges – 

possession of drugs and petty theft – demonstrate that [Brown] did not expect to cause 

physical harm to any person or property.” Brown argues that there was also evidence 

that he was not likely to commit future crimes, as set forth in R.C. 2929.12(E)(3) and (5), 

insofar as he had “lived a law-abiding life for a significant number of years prior to 

committing the offense[s] and he exhibited genuine remorse.” 
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{¶ 6} The State notes that this appeal may be moot as it relates only to the 

imposition of the maximum sentences; it also argues that Brown’s sentence was not 

contrary to law, and that the sentence was supported by the record. 

{¶ 7} The Ohio Department of Rehabilitation and Correction’s website indicates 

that Brown was placed on transitional control with supervision by the Adult Parole 

Authority on March 22, 2019, for a period of six months. In other words, he is serving the 

last six months of his felony sentence on transitional control. A violation of transitional 

control could result in Brown’s return to the institution to serve the balance of his felony 

sentence. R. C. 2967.26(F). Because he has not completed his sentence, his appeal 

is not moot. 

{¶ 8} As this Court has noted: 

When reviewing felony sentences, appellate courts apply the 

standard of review found in R.C. 2953.08(G)(2), not an abuse of discretion 

standard. 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 appellate court may 

increase, reduce, or modify a sentence, or it may vacate the sentence and 

remand for resentencing, only if it “clearly and convincingly” finds either (1) 

that the record does not support certain specified findings or (2) that the 

sentence imposed is contrary to law. 

“The trial court has full discretion to impose any sentence within the 

authorized statutory range, and the court is not required to make any 

findings or give its reasons for imposing maximum * * * sentences.” State 

v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, a trial 
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court must consider the statutory criteria that apply to every felony offense, 

including those set 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 St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 

38. * * * R.C. 2929.12(B) sets forth nine factors indicating that an offender's 

conduct is more serious than conduct normally constituting the offense, 

whereas R.C. 2929.12(C) sets forth four factors indicating that an offender's 

conduct is less serious than conduct normally constituting the offense. 

Similarly, R.C. 2929.12(D) and (E) each lists five factors that trial courts are 

to consider regarding an offender being more or less likely to commit future 

crimes. 

Although statutory maximum sentences do not require any of the 

findings specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found 

it appropriate “for appellate courts to review those sentences that are 

imposed solely after consideration of the factors in R.C. 2929.11 and 

2929.12 under a standard that is equally deferential to the sentencing court. 

That is, an appellate court may vacate or modify any sentence that is not 

clearly and convincingly contrary to law only if the appellate court finds by 

clear and convincing evidence that the record does not support the 

sentence.” Marcum at ¶ 23. 

State v. Roberts, 2d Dist. Montgomery No. 2018-CA-27, 2019-Ohio-49, ¶ 6-8. 

{¶ 9} Brown’s felony sentence is not contrary to law; pursuant to R.C. 

2929.14(A)(5), the maximum sentence for a felony of the fifth degree is 12 months. As 
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noted above, the trial court indicated to Brown at sentencing that it considered the R.C. 

2929.11 and R.C. 2929.12 factors, and the trial court was not required to discuss the 

individual factors contained within the statutes. Roberts at ¶ 13, citing State v. Sparks, 

2d Dist. Montgomery No. 2017-CA-95, 2018-Ohio-3298, ¶ 8. That being so, an appellate 

court cannot infer from a trial court’s failure to discuss the specific statutory factors that it 

did not consider them. Id. 

{¶ 10} Further, Brown’s felony sentence is not clearly and convincingly 

unsupported by the record. His presentence investigation report, which the court 

considered, reflects that he had 25 prior adult misdemeanor offenses dating back to 1994, 

including drug and theft offenses. Brown’s adult felony record included convictions for 

possession of drugs (2002), forgery (2006), burglary (2006), receiving stolen property 

(2007), robbery (2010), and breaking and entering (2012). His felony record further 

reflected that he had previously been granted intervention in lieu of conviction, placed in 

the Stop and the MonDay programs, and placed on community control supervision. At 

sentencing, after Brown asked the court for “an opportunity to get into treatment and get 

help again,” the court responded that “the difficulty with our present situation is your 

criminal history with this constituting your seventh felony and 26th misdemeanor and your 

past efforts at supervision having a record of not being successful.” Based on our review 

of the record, including the presentence investigation report, we do not find that Brown’s 

felony sentence was clearly and convincingly unsupported by the evidence. 

{¶ 11} Finally, Brown’s appeal of his misdemeanor conviction is moot because, in 

light of his time spent in prison and his jail time credit, Brown has completed his 180 day 

sentence, and there is no relief we can afford. State v. Wright, 2d Dist. Montgomery No. 
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26471, 2015-Ohio-3919, ¶ 14, 27. 

{¶ 12} Brown’s assignment of error is overruled, and the judgment of the trial court 

is affirmed. 

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HALL, J. and TUCKER, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

Lisa M. Light 

Pamela L. Pinchot 

Hon. Mary Lynn Wiseman