[Cite as State v. Keith, 2016-Ohio-5234.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 103413 and 103414

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

BENJAMIN R. KEITH

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-13-576446-A and CR-15-595077-A 

BEFORE: E.T. Gallagher, J., McCormack, P.J., and Boyle, J. 

RELEASED AND JOURNALIZED: August 4, 2016 
ATTORNEY FOR APPELLANT

Michael H. Murphy 

Michael H. Murphy, Attorney at Law 

20325 Center Ridge Road 

Suite 512 

Rocky River, Ohio 44116 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Gregory J. Ochocki 

Assistant Prosecuting Attorneys 

The Justice Center, 8th and 9th Floors 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN T. GALLAGHER, J.: 

{¶1} In this consolidated appeal, defendant-appellant, Benjamin Keith (“Keith”), 

appeals from his sentences in Cuyahoga C.P. Nos. CR-13-576446-A and 

CR-15-595077-A. He raises two assignments of error for our review: 

1. The sentence handed down by the trial court was not commensurate 

with the crime committed. 

2. Appellant was not afforded effective assistance of counsel. 

{¶2} After careful review of the record and relevant case law, we affirm Keith’s 

sentence and conviction. 

I. Factual and Procedural History

{¶3} In July 2013, Keith was indicted in Case No. CR-13-576446-A for domestic 

violence in violation of R.C. 2919.25(A), with a furthermore clause that Keith had 

previously been convicted of domestic violence and criminal menacing. In November 

2013, Keith pleaded guilty to an amended count of domestic violence, a felony of the 

fourth degree. Keith was sentenced to 45 days in jail and was placed on community 

control sanctions for a period of two years. 

{¶4} While on community control sanctions, Keith pleaded guilty in Case No. 

CR-15-595077-A to criminal damaging in violation of R.C. 2909.06(A)(1), a 

second-degree misdemeanor, and domestic violence in violation of R.C. 2919.25(A), a 

felony of the third degree. 

{¶5} In July 2015, the trial court held a consolidated sentencing hearing. In Case 

No. CR-15-595077-A, Keith was sentenced to 18 months in prison on the domestic 
violence conviction and 90 days in jail on the criminal damaging conviction, to run 

concurrently. In Case No. CR-13-576446-A, Keith was found to have violated the terms 

of his community control sanctions and was sentenced to 18 months in prison. The 

sentences imposed in each case were ordered to run concurrently, for a total of 18 months 

in prison. 

{¶6} Keith now appeals from his sentence. 

II. Law and Analysis

A. Proportionality

{¶7} In his first assignment of error, Keith argues the trial court’s sentence “was 

not commensurate with the crime committed.” 

{¶8} When reviewing felony sentences, this court may increase, reduce, or modify 

a sentence, or it may vacate and remand the matter for resentencing, only if we clearly 

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

statutory findings or the sentence is contrary to law. R.C. 2953.08(G)(2). A sentence 

is contrary to law if the sentence falls outside the statutory range for the particular degree 

of offense or the trial court failed to consider the purposes and principles of felony 

sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. 

Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th 

Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13. In State v. Marcum, Slip Opinion 

No. 2016-Ohio-1002, the Ohio Supreme Court held that when a sentence is imposed 

solely after consideration of the factors in R.C. 2929.11 and 2929.12, appellate courts 
“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.” Id. at ¶ 23. 

{¶9} When sentencing a defendant, the court must consider the purposes and 

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set 

forth in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 

2013-Ohio-5025, ¶ 7. R.C. 2929.11(A) provides that a sentence imposed for a felony 

shall be reasonably calculated to achieve the two overriding purposes of felony 

sentencing (1) to protect the public from future crime by the offender and others, and (2) 

to punish the offender using the minimum sanctions that the court determines will 

accomplish those purposes. The sentence imposed shall be “commensurate with and not 

demeaning to the seriousness of the offender’s conduct and its impact on the victim, and 

consistent with sentences imposed for similar crimes by similar offenders.” R.C. 

2929.11(B). 

{¶10} The sentencing court must consider the seriousness and recidivism factors 

set forth in R.C. 2929.12 in determining the most effective way to comply with the 

purposes and principles of sentencing set forth in R.C. 2929.11. Hodges at ¶ 9. R.C. 

2929.12 provides a non-exhaustive list of factors a trial court must consider when 

determining the seriousness of the offense and the likelihood that the offender will 

commit future offenses. 
{¶11} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Accordingly, 

although the trial court must consider the principles and purposes of sentencing as well as 

the mitigating factors as outlined above, the court is not required to use particular 

language or make specific findings on the record regarding its consideration of those 

factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; 

State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. Consideration of the 

appropriate factors can be presumed unless the defendant affirmatively shows otherwise. 

Id., citing State v. Stevens, 1st Dist. Hamilton No. C-130278, 2013-Ohio-5218, ¶ 12. 

Moreover, a trial court’s statement in its sentencing journal entry that it considered the 

required statutory factors is sufficient to fulfill a trial court’s obligations under R.C. 

2929.11 and 2929.12. State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 

2015-Ohio-4074, ¶ 72, citing State v. Clayton, 8th Dist. Cuyahoga No. 99700, 

2014-Ohio-112, ¶ 9. 

{¶12} In challenging the length of his sentence, Keith relies on former R.C. 

2929.14(C). Under former R.C. 2929.14(C), prior to imposing maximum sentences for 

felony convictions, trial courts were required to make certain findings, including, inter 

alia, that the offender committed the worst form of the offense. See State v. Combs, 2d 

Dist. Clark No. 2013-CA-6, 2013-Ohio-4816, ¶ 7. However, that part of the statute was 

severed, on constitutional grounds, in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 

845 N.E.2d 470, and was not reenacted by the passage of H.B. 86. Id. at ¶ 8-11. Thus, 

our review is limited to whether the trial court’s sentence was contrary to law. 
{¶13} In this case, the record reflects that the trial court carefully considered the 

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing 

factors in R.C. 2929.12. In addition to the trial court’s notation in its July 2015 

sentencing entry that it “considered all required factors of law,” including R.C. 2929.11, 

the record in this case reflects that the trial court did, in fact, consider both R.C. 2929.11 

and 2929.12. At the consolidated sentencing hearing, the trial court made the following 

statement on the record: 

Now, in giving you this sentence, I have considered all the factors involved 

in sentencing, and I think based on all of the factors that make this more 

serious and all of the factors that make it less serious, this is an appropriate 

sentence for you. 

{¶14} Based on the foregoing, it is clear that the trial court properly considered 

both R.C. 2929.11 and 2929.12 when sentencing Keith. In doing so, the trial court 

expressly considered Keith’s presentence investigation report, the seriousness of the 

domestic violence offenses involved, his criminal history, and his history of violence. 

Under these circumstances, Keith has not shown by “clear and convincing evidence that 

the record does not support the sentence.” See Marcum, Slip Opinion No. 

2016-Ohio-1002, at ¶ 23. 

{¶15} Moreover, the record reflects that the trial court sentenced Keith within the 

applicable statutory ranges for his third- and fourth-degree felony convictions. R.C. 

2929.14(A)(3)(b) provides, “[f]or a felony of the third degree * * * the prison term shall 

be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” Furthermore, R.C. 

2929.14(A)(4) provides, “[f]or a felony of the fourth degree, the prison term shall be six, 
seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or 

eighteen months.” In this case, the trial court imposed an 18-month prison term for 

Keith’s third-degree felony domestic violence conviction in Case No. CR-15-595077-A. 

Similarly, the trial court imposed an 18-month prison term on the underlying 

fourth-degree felony domestic violence conviction in Case No. CR-13-576446-A as a 

result of his community control sanctions violation. Thus, Keith’s sentences were 

within the permissible statutory range. 

{¶16} While Keith argues the imposition of the maximum prison term in Case No. 

CR-13-576446-A was “more punitive in nature than fair,” this court has routinely held 

that “trial courts have full discretion to impose a prison sentence within the statutory 

range and are no longer required to make findings or give their reasons for imposing 

maximum * * * sentences.” State v. Collier, 8th Dist. Cuyahoga No. 95572, 

2011-Ohio-2791, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 

N.E.2d 470, paragraph seven of the syllabus. Therefore, a sentence imposed within the 

statutory range is “presumptively valid” if the court considered applicable sentencing 

factors. State v. Hutchinson, 8th Dist. Cuyahoga No. 102856, 2016-Ohio-927, ¶ 18. 

Having determined that the trial court considered all required sentencing statutes, we find 

Keith’s sentences, including the maximum prison term imposed in Case No. 

CR-13-576446-A, are not contrary to law. 

{¶17} Accordingly, Keith’s first assignment of error is overruled. 

B. Ineffective Assistance of Counsel
{¶18} In his second assignment of error, Keith argues he received ineffective 

assistance of counsel. 

{¶19} To establish constitutionally ineffective assistance of counsel, a defendant 

must show (1) that his counsel’s performance was deficient, and (2) that the deficient 

performance prejudiced the defense and deprived him of a fair trial. Strickland v. 

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 

Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). 

{¶20} In order to show deficient performance, the defendant must prove that 

counsel’s performance fell below an objective level of reasonable representation. To 

show prejudice, the defendant must show a reasonable probability that, but for counsel’s 

errors, the result of the proceeding would have been different. State v. Conway, 109 

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. 

{¶21} In this case, Keith argues defense counsel provided deficient performance 

when he failed to request a substance abuse assessment prior to sentencing in Case No. 

CR-15-595077-A. Keith contends that “defense counsel’s inactivity unduly prejudiced 

his case,” because “the facts are clear that Keith has a substance abuse problem, 

specifically alcohol.” 

{¶22} After careful review of the record in its entirety, we are unable to conclude 

that counsel’s decision not to request a substance abuse assessment amounted to 

ineffective assistance of counsel. While the record contains a brief reference to Keith’s 

positive alcohol tests while under community control sanctions and his prior conviction 
for driving under the influence, Keith did not attribute his domestic violence convictions 

to substance abuse. Rather, he stated that “[his] main problem was not recognizing 

when his relationship [with the victim] was over.” 

{¶23} Based on the record before this court, Keith has failed to demonstrate that 

trial counsel’s actions fell below an objective standard of reasonable representation. 

Furthermore, he has failed to articulate how the outcome of his plea or sentencing 

proceedings would have been different had counsel requested a substance abuse 

assessment. Accordingly, Keith has failed to support his claim that he was denied his 

constitutional right to effective assistance of counsel. 

{¶24} Keith’s second assignment of error is overruled. 

III. Conclusion

{¶25} The trial court’s imposition of concurrent 18-month prison terms in Case 

Nos. CR-13-576446-A and CR-15-595077-A is not contrary to law. The trial court 

imposed a sentence within the applicable statutory ranges and carefully considered the 

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing 

factors in R.C. 2929.12. Further, defense counsel was not ineffective for failing to 

request a substance abuse assessment prior to sentencing. 

{¶26} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

EILEEN T. GALLAGHER, JUDGE 

TIM McCORMACK, P.J., and 

MARY J. BOYLE, J., CONCUR