[Cite as State v. Fleming, 2023-Ohio-3770.]

COURT OF APPEALS

MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES:

: Hon. W. Scott Gwin, P.J.

 Plaintiff - Appellee : Hon. William B. Hoffman, J.

: Hon. Craig R. Baldwin, J.

-vs- :

:

JOSEPH FLEMING, : Case No. CT2023-0022

:

 Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Muskingum County 

Court of Common Pleas, Case No. 

CR2022-0490

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 13, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH CHRIS BRIGDON

Prosecuting Attorney 8138 Somerset Rd

Muskingum County, Ohio Thornville, Ohio 43076

By: JOHN CONNOR DEVER

Assistant Prosecuting Attorney

Muskingum County, Ohio

27 North Fifth St., P.O. Box 189

Zanesville, Ohio 43702
Muskingum County, Case No. CT2023-0022 2

Baldwin, J.

{¶1} Joseph Fleming appeals the decision of the trial court sentencing him to an 

aggregate of 120 months after he entered a plea of guilty to two counts of gross sexual 

imposition, both violations of R.C. 2907.05 and felonies of the third degree. The State of 

Ohio is appellee.

STATEMENT OF THE FACTS AND THE CASE

{¶2} The record in this case contains few of the facts leading to the charges 

against Fleming, so we must rely on the representations of the parties at the sentencing 

hearing. 

{¶3} Fleming was charged with two counts of gross sexual imposition arising out 

of incidents involving two victims. The eldest victim was sixteen years old at the time of 

sentencing and the second victim was eleven years old and Fleming stipulated to the 

facts supporting the charges. (Change of Plea Hearing, p. 15, lines 5-24).

{¶4} At the sentencing hearing, the trial court noted that it received and reviewed 

the presentence investigation and report, but that document was not made part of the 

record. During that hearing Fleming admitted that he had been incarcerated on an 

unrelated matter and was released from jail in April 2023. After his release, he committed 

the offenses of petty theft and misuse of a credit card, was arrested and charged. Fleming 

plead guilty and was sentenced for those charges. At the sentencing hearing in this case, 

he denied that he had committed those offenses and claimed that he was framed by 

another person, but admitted that he could not prove his allegations. 

{¶5} After the trial court read a description of the alleged abuse of the minor child, 

Priest stated “Well, I understand that’s what the report says, but that never happened” but 
Muskingum County, Case No. CT2023-0022 3

later stated that he did take responsibility. (Sentencing Transcript, p. 12, lines 10-11; 17-

18). The trial court imposed sixty month terms for each offense and made the requisite 

findings to support its decision to have the terms served consecutively creating an 

aggregate sentence of ten years.

{¶6} Fleming filed an appeal and submitted one assignment of error:

{¶7} “I. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT 

WITH THE PRINCIPLES SET FORTH O.R.C. §2929.11 AND FACTORS TO BE 

CONSIDRED(SIC) IN O.R.C. §2929.12.”

STANDARD OF REVIEW

{¶8} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to 

review the entire trial court record, including any oral or written statements and 

presentence investigation reports. Revised Code 2953.08(G)(2) provides we may either 

increase, reduce, modify, or vacate a sentence and remand for resentencing where we 

clearly and convincingly find that either the record does not support the sentencing court's 

findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the 

sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 

2014-Ohio-3177, 16 N.E.2d 659, ¶ 28.

{¶9} "Clear and convincing evidence is that measure or degree of proof which is 

more than a mere 'preponderance of the evidence,' but not to the extent of such certainty 

as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in 

the mind of the trier of facts a firm belief or conviction as to the facts sought to be 

established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three 

of the syllabus.
Muskingum County, Case No. CT2023-0022 4

{¶10} A sentence is not clearly and convincingly contrary to law where the trial 

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed 

in R.C. 2929.12, properly imposes post release control, and sentences the defendant 

within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-

03-026, 2019-Ohio-4209, ¶ 36.

{¶11} The trial court must consider the purposes and factors contained in R.C. 

2929.11 and 2929.12 but this Court has held that when the transcript of “the sentencing 

hearing is silent as to whether the trial court considered the factors in R.C. 2929.11 and 

2929.12” a presumption arises “that a trial court considered the factors contained in R.C. 

2929.12.” State v. Hannah, 5th Dist. Richland No. 15-CA-1, 2015-Ohio-4438, ¶ 13. 

Accord State v. Tenney, 11th Dist. Ashtabula No. 2009-A-0015, 2010-Ohio-6248, 2010 

WL 5289110, ¶ 14 and State v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-

Ohio-3125, ¶ 18.

ANALYSIS

{¶12} In his sole assignment of error, Fleming argues that “given the mitigation 

surrounding this matter, the * * * "minimum sanctions'' to achieve the principles of R.C. 

§2929.11, were not followed in this matter and the record demonstrates this by a clear 

and convincing manner.” (Appellant’s Brief, page 7). He asked that we reverse the trial 

court and remand for resentencing.

{¶13} This court may modify Fleming’s sentence only if it “clearly and convincingly 

finds that either the record does not support the sentencing court's findings under R.C. 

2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise 
Muskingum County, Case No. CT2023-0022 5

contrary to law.” Fleming does not argue that R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or 

(C)(4), or 2929.20(I) apply, so we are restricted to consideration of whether the sentence 

is clearly and convincingly otherwise contrary to law.

{¶14} The sentence imposed by the trial court for each charge is within the 

statutory guidelines and Fleming does not assert a position to the contrary. Instead, he 

contends that the trial court disregarded mitigating factors to impose a maximum 

sentence that fails to comply with the guidelines of R.C. 2929.11 or 2929.12 and that we 

should reverse the sentence on that basis. Fleming is requesting that we act in a manner 

that has been prohibited by the Supreme Court of Ohio in State v. Jones, 163 Ohio St.3d 

242, 2020-Ohio-6729, 169 N.E.3d 649 where the court clearly stated that R.C. 

2953.08(G)(2) does not permit “an appellate court to modify or vacate a sentence based 

on its view that the sentence is not supported by the record under R.C. 2929.11 and 

2929.12.” We are therefore bound to reject Fleming’s request.

{¶15} Fleming also argues that the trial court neglected to consider R.C. 2929.12 

during sentencing because there is “no indication that the trial court considered any 

factors prescribed in R.C. § 2929.12(B)” and “no record that the factors in R.C. § 

2929.12(C) were discussed.” (Appellant’s Brief, p. 9). 

{¶16} In our review of the language of R.C. 2929.11 and 2929.12, we have held 

that:

While trial courts are required to consider both R.C. 2929.11 and 

2929.12 before imposing a prison sentence, they are not required to make 

specific findings under any of those considerations. State v. Wilson, 129 

Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88 
Muskingum County, Case No. CT2023-0022 6

Ohio St.3d 208, 724 N.E.2d 793 (2000). “Indeed, consideration of the 

factors is presumed unless the defendant affirmatively shows otherwise.” 

State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, 2021 

WL 3560891, ¶ 8, citing State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, 

¶ 16 (8th Dist.).

State v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-Ohio-3125, 2022 WL 

4092532, ¶ 18.

{¶17} In a separate case, we concluded that “[a]lthough a trial court must consider 

the factors in R.C. 2929.11 and 2929.12, there is no requirement that the court state its 

reasons for imposing a maximum sentence, or for imposing a particular sentence within 

the statutory range. There is no requirement in R.C. 2929.12 that the trial court states on 

the record that it has considered the statutory criteria concerning seriousness and 

recidivism or even discussed them. (Citations omitted.) State v. Webb, 5th Dist. 

Muskingum No. CT2018-0069, 2019-Ohio-4195, 2019 WL 5092631, ¶ 17.

{¶18} The trial court was not obligated to describe its rational for the sentence on 

the record or that it had considered the factors listed in R.C. 2929.12 and Fleming has 

not affirmatively shown that the factors were not considered.

{¶19} For those reasons, Fleming’s assignment of error is denied.
Muskingum County, Case No. CT2023-0022 7

{¶20} The decision of the Muskingum County Court of Appeals is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.