[Cite as State v. Bradley, 2018-Ohio-3192.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 GREENE COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

TIMOTHY E. BRADLEY 

Defendant-Appellant 

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Appellate Case No. 2017-CA-64 

Trial Court Case No. 17-CR-459 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 10th day of August, 2018. 

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NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, 55 Greene Street, 1st Floor, Xenia, 

Ohio 45385 

 Attorney for Plaintiff-Appellee 

 

GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215 

 Attorney for Defendant-Appellant 

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HALL, J. 
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{¶ 1} Timothy E. Bradley appeals from his conviction and sentence following a 

guilty plea to one count of attempted felonious assault, a third-degree felony. 

{¶ 2} Bradley advances two assignments of error related to the 30-month prison 

sentence he received. First, he contends the trial court violated the purposes of felony 

sentencing. Specifically, he asserts that the trial court “erred in finding the appellant’s 

juvenile record being more significant than his adult record in [its] analysis of protecting 

society[.]” Second, he claims the trial did not properly apply the statutory “seriousness” 

and “recidivism” factors. He argues that the trial court “erred in finding the appellant’s 

crime to be serious and appellant is likely to repeat the behavior if appellant is not 

incarcerated.” 

{¶ 3} The record reflects that Bradley was charged with felonious assault and 

fourth-degree-felony domestic violence for punching his girlfriend in the face and knocking 

out her tooth in the presence of their seven-year-old son. He pled guilty to the domestic 

violence charge and to a reduced charge of attempted felonious assault. At sentencing, 

the trial court recognized the existence of allied offenses. The State elected to proceed 

on the attempted felonious assault charge, and the trial court sentenced Bradley to 30 

months in prison. Prior to imposing the sentence, the trial court noted that it had 

considered the record, oral statements by the parties, a victim-impact statement,1 and a 

 

1 On April 25, 2018, Bradley moved to supplement the record on appeal with the victimimpact statement, which he claimed was not in the record. This court sustained that 

aspect of the motion on May 16, 2018, noting that the victim-impact statement already 

had been made part of the record. Indeed, we have reviewed the short statement, which 

is part of the PSI materials. In its May 16, 2018 decision, this court also denied a request 

by Bradley’s counsel to review the victim-impact statement. In so doing, this court noted 

that the panel reviewing the case on the merits (i.e., the undersigned judges) could 
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PSI report. The trial court also noted that it had considered the statutory principles and 

purposes of sentencing and had balanced the statutory seriousness and recidivism 

factors. 

{¶ 4} In his assignments of error, Bradley challenges the trial court’s evaluation 

and weighing of the principles and purposes of sentencing and the seriousness and 

recidivism factors. He asserts that the trial court improperly placed undue emphasis on 

his more extensive juvenile record as opposed to his adult criminal record. He reasons 

that, prior to the present offense, he had not committed a violent crime for 13 years and 

that most of his prior adult crimes were relatively “insignificant.” Bradley also conducts his 

own analysis of the statutory seriousness and recidivism factors, concluding that they do 

not support a 30-month sentence. He claims only one “more serious” factor applies, that 

he is remorseful, and that he is willing to be rehabilitated. He insists that, based on the 

record before it, the trial court abused its discretion by imposing a 30-month prison 

sentence. 

{¶ 5} Under R.C. 2953.08(G)(2), however, we do not apply an abuse of discretion 

standard. Rather, 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 

 

reconsider and permit counsel to view the statement, with possible additional briefing. A 

victim impact statement is confidential, although a court has discretion whether to furnish 

it to a defendant or counsel. R.C. 2947.051(C). Upon review, we see no need to 

reconsider this court’s prior ruling about viewing the statement. Accompanying the 

request to view the statement was an affidavit from the victim that largely recounted the 

contents of the statement itself. In light of this affidavit, which Bradley’s counsel submitted, 

and the relatively innocuous nature of the short statement, we see no need for counsel to 

view the actual victim-impact statement. 
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sentence imposed is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio1002, 59 N.E.3d 1231, ¶ 9. In general, a sentence is not contrary to law when it is within 

the authorized statutory range and the trial court states that it has considered the 

principles and purposes of sentencing and the seriousness and recidivism factors. State 

v. Smith, 2d Dist. Montgomery No. 26307, 2016-Ohio1269, ¶ 25. 

{¶ 6} Here Bradley’s 30-month sentence for attempted felonious assault is within 

the authorized statutory range. In addition, no specific findings were required under R.C. 

2929.11 or R.C. 2929.12. State v. Hand, 2d Dist. Clark No. 2016–CA–51, 2017-Ohio7340, ¶ 6. Therefore, Bradley’s attempted felonious assault sentence is not contrary to 

law, and he does not argue otherwise. 

{¶ 7} The disputed issue is whether the record fails to support the 30-month 

sentence. Where a sentence is not contrary to law, we may modify or vacate it only if we 

find by clear and convincing evidence that the record does not support it. Marcum at ¶ 7. 

The record before us does not clearly and convincingly fail to support the trial court’s 

consideration of the statutory principles and purposes of sentencing or the seriousness 

and recidivism factors. 

{¶ 8} The trial court recognized that Bradley, who was 33 years old, had a prior 

record as a juvenile and an adult. His juvenile history included adjudications for breaking 

and entering, felony theft, resisting arrest, multiple DUIs, driving under suspension, and 

other traffic and alcohol-related offenses. His adult record included two prior domesticviolence and assault charges which resulted in pleas to disorderly conduct. It also 

included a prior domestic-violence conviction as well as convictions for resisting arrest, 

disorderly conduct, and other things. The trial court additionally noted that Bradley already 
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had attended an anger management and alcohol treatment program before committing 

the current offense. In light of Bradley’s lengthy record as a juvenile and an adult, his prior 

opportunity to undergo counseling, the nature of the current offense, his “high risk” score 

on a risk assessment, and the recommendation of the probation officer who completed 

the PSI, we do not find that the record clearly and convincingly fails to support Bradley’s 

30-month prison term. To the contrary, although he believes the pertinent statutory factors 

and considerations should have been evaluated differently, the trial court engaged in an 

appropriate analysis and reached a conclusion that is supported by the record. 

{¶ 9} Finally, we briefly must address an allied-offense issue that is apparent in the 

record. As set forth above, the trial court recognized at sentencing that attempted 

felonious assault and domestic violence were allied offenses, and the State elected to 

proceed with sentencing on attempted felonious assault. During the sentencing hearing 

and in its judgment entry, however, the trial court actually sentenced Bradley to a 

concurrent term of “zero” months in prison for domestic violence. (Sentencing Tr. at 31; 

Doc. # 37 at 3). Technically, the trial court should not have imposed any sentence for the 

allied offense of domestic violence. State v. Williams, 148 Ohio St.3d 403, 2016-Ohio7658, 71 N.E.3d 234, ¶ 28 (“[W]hen a trial court concludes that an accused has in fact 

been found guilty of allied offenses of similar import, it cannot impose a separate sentence 

for each offense. Rather, the court has a mandatory duty to merge the allied offenses by 

imposing a single sentence, and the imposition of separate sentences for those 

offenses—even if imposed concurrently—is contrary to law[.]”). Imposing a separate 

sentence for an acknowledged allied offense renders the sentence void. Id. We need not 

remand for resentencing here, however, because the State already elected to proceed 
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with sentencing for attempted felonious assault, and the trial court imposed a sentence 

for that offense. The proper remedy is simply to vacate the concurrent sentence of zero 

months in prison for domestic violence. Id. at ¶ 32-33. 

{¶ 10} For the reasons set forth above, we overrule Bradley’s assignments of error. 

We sua sponte modify the trial court’s judgment by vacating the concurrent sentence it 

imposed for domestic violence. The conviction and sentence for attempted felonious 

assault are unaffected by our ruling. See id. at ¶ 33. As so modified, the trial court’s 

judgment is affirmed. 

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TUCKER, J., concurs. 

FROELICH, J., concurring: 

{¶ 11} I write separately only to emphasize that Bradley’s “high risk” score on a 

risk assessment tool (ORAS) does not factor into my agreement that the record does not 

clearly and convincingly fail to support his sentence. See, e.g., State v. Lawson, 2018-

Ohio-1532, __N.E.3d__, ¶ 20, 21 (2d Dist.) (Froelich, J., concurring). 

Copies mailed to: 

Nathaniel R. Luken 

Glenda A. Smith 

Hon. Michael A. Buckwalter