[Cite as State v. Davis, 2022-Ohio-2397.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsWESLEY DAVIS

Defendant-Appellant

JUDGES:

: Hon. Earle E. Wise, P.J.

: Hon. W. Scott Gwin, J.

: Hon. Craig R. Baldwin, J.

:

:

: Case No. 2021 AP 12 0034

:

:

: OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas 

County Court of Common Pleas, Case No. 

2021 CR 04 0142

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 12, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KRISTINE BEARD DAN GUINN

Assistant Prosecutor 232 West 3rd Street, Ste. 312

125 E. High Avenue Dover, OH 44622

New Philadelphia, OH 44663
Tuscarawas County, Case No. 2021 AP 12 0034 2

Gwin, J.,

{¶1} Appellant Wesley E. Davis [“Davis”] appeals his sentence after a negotiated 

guilty plea in the Tuscarawas County Court of Common Pleas.

Facts and Procedural History

{¶2} Davis was indicted by the Tuscarawas County Grand Jury for one count of 

Rape in violation of R.C. 2907.02(A)(1) with a sexually violent predator specification for a 

child less than ten years of age, a felony of the first degree, and two counts of Gross 

Sexual Imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree. The 

victims for the offenses were Davis's two granddaughters both less than thirteen years of 

age at the time of the offenses.

{¶3} On the day of trial, the state agreed to dismiss count one [Rape], in 

exchange for a plea to the remaining counts of Gross Sexual Imposition. After accepting 

Davis's no contest plea and making a finding of guilt the court dismissed count one 

[Rape]. The court deferred sentencing, ordered a pre-sentence investigation, and 

continued Davis on pretrial supervision.

{¶4} At the sentencing hearing, the mother of the victims was present and

addressed the trial court advising the Court how the abuse had seriously affected the

children and the family. Davis's counsel argued that Davis should be placed on

community control. After a review of the presentence investigation report and

statements of the parties, the trial court sentenced Davis to serve an aggregate term

of forty-eight months in prison.

Assignment of Error

{¶5} Davis raises one Assignment of Error,
Tuscarawas County, Case No. 2021 AP 12 0034 3

{¶6} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A PRISON 

SENTENCE AS OPPOSED TO COMMUNITY CONTROL UPON THE APPELLANT.”

Law and Analysis

{¶7} Davis argues that the trial court erred as a matter of law because the court

did not sentence Davis to a community control sanction.

Standard of Appellate 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. R.C. 2953.08(F)(1) through (4). Although a court 

imposing a felony sentence must consider the purposes of felony sentencing under R.C. 

2929.11 and the sentencing factors under R.C. 2929.12, “neither R.C. 2929.11 nor 

2929.12 requires [the] court to make any specific factual findings on the record.” State v. 

Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, at ¶ 20, citing State v. 

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

88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

{¶9} We review felony sentences using the standard of review set forth in R.C. 

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22; 

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 

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.
Tuscarawas County, Case No. 2021 AP 12 0034 4

{¶10} R.C. 2953.08(G)(2)(b) does not provide a basis for 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. State v. Jones, 163 Ohio St.3d 242, 2020-

Ohio-6729, 169 N.E.3d 649, ¶39. The Ohio Supreme Court further elucidated in State v. 

Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as 

amended, precludes second-guessing a sentence imposed by the trial court based on its 

weighing of the considerations in R.C. 2929.11 and 2929.12.” 

{¶11} In State v. Bryant, the Court recently clarified the holding in State v. Jones, 

163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,

The narrow holding in Jones is that R.C. 2953.08(G)(2) does not 

allow 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. See Jones at ¶ 31, 39. Nothing about that holding should be 

construed as prohibiting appellate review of a sentence when the claim is 

that the sentence was improperly imposed based on impermissible 

considerations—i.e., considerations that fall outside those that are 

contained in R.C. 2929.11 and 2929.12. Indeed, in Jones, this court made 

clear that R.C. 2953.08(G)(2)(b) permits appellate courts to reverse or 

modify sentencing decisions that are “‘otherwise contrary to law.’” Jones at 

¶ 32, quoting R.C. 2953.08(G)(2)(b). This court also recognized that 

“otherwise contrary to law” means “‘in violation of statute or legal regulations 

at a given time.’” Id. at ¶ 34 quoting Black’s Law Dictionary 328 (6th 

Ed.1990). Accordingly, when a trial court imposes a sentence based on 
Tuscarawas County, Case No. 2021 AP 12 0034 5

factors or considerations that are extraneous to those that are permitted by 

R.C. 2929.11 and 2929.12, that sentence is contrary to law. Claims that 

raise these types of issues are therefore reviewable.

Slip Opinion No. 2020-0599, 2022-Ohio-1878(June 7, 2022), ¶22.

Issue for Appellate Review: Whether Davis’s sentence was imposed 

based on impermissible considerations—i.e., considerations that fall outside those that 

are contained in R.C. 2929.11 and 2929.12

R.C. 2929.13(C)

{¶12} R.C. 2929.13(C) applies to one convicted of a third degree felony. Davis 

pled no contest to two felonies of the third degree.

{¶13} According to R.C. 2929.13(C), when determining whether a third-degree 

felony warrants a prison sentence, the trial court is to consider the seriousness and 

recidivism factors contained in R.C. 2929.12. As well, the trial court is to consider the 

purposes and principles of sentencing outlined in R.C. 2929.11. 

R.C. 2929.11

{¶14} R.C. 2929.11(A) governs the purposes and principles of felony sentencing 

and provides that a sentence imposed for a felony shall be reasonably calculated to 

achieve the two overriding purposes of felony sentencing, which are (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. In 

order to achieve these purposes and principles, the trial court must consider the need for 

incapacitating the offender, deterring the offender and others from future crime, 

rehabilitating the offender, and making restitution to the victim of the offense, the public, 
Tuscarawas County, Case No. 2021 AP 12 0034 6

or both. R.C. 2929.11(A). Additionally, the sentence must be commensurate with, and 

not demeaning to, the seriousness of the offender’s conduct and its impact on the victims

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

2929.11(B).

R.C. 2929.12

{¶15} R.C. 2929.12 sets forth the seriousness and recidivism factors for the 

sentencing court to consider in determining the most effective way to comply with the 

purposes and principles of sentencing set forth in R.C. 2929.11. The statute 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.

The Case at Bar

{¶16} In the case at bar, the trial court heard from the victims’ mother and their 

pastor. (Sent. T. at 3-6.) The court heard from Davis’s attorney, the state’s attorney, and 

Davis. The trial court reviewed the presentence investigation report, and the victim impact 

statements. (Sent. T. at 2).

{¶17} In the case at bar, the record supports that the harm caused the victims was 

“serious physical harm” [R.C. 2929.12(B)(2)]. (Sent. T. at 8). The offenses were also 

more serious because Davis used his relationship with the victims to facilitate the 

offenses. [R.C. 2929.12(B)(6)]. (Sent. T. at 8-9). None of the factors set forth in R.C. 

2929.12(C) are applicable to render the offenses “less serious.” (Sent. T. at 9). No 

grounds for mitigation are contained in the record. (Sent. T. at 9). Davis has not 

expressed his remorse and continues to deny anything happened. (Sent. T. at 7).
Tuscarawas County, Case No. 2021 AP 12 0034 7

{¶18} Accordingly, the trial court considered the purposes and principles of 

sentencing [R.C. 2929.11] as well as the factors that the court must consider when 

determining an appropriate sentence. [R.C. 2929.12]. 

Davis has not demonstrated that the trial court imposed the sentence based on 

impermissible considerations—i.e., considerations that fall outside those that are 

contained in R.C. 2929.11 and 2929.12. State v. Bryant, Slip Opinion No. 2020-0599, 

2022-Ohio-1878(June 7, 2022), ¶22.

{¶19} We conclude that the trial court did not commit error when it sentenced 

Davis. Upon review, we find that the trial court’s sentencing on the charges complies with 

applicable rules and sentencing statutes. While Davis may disagree with the weight given 

to these factors by the trial judge, Davis’s sentence was within the applicable statutory 

range, and the sentence is not based on considerations that fall outside those that are 

contained in R.C. 2929.11 and 2929.12. Therefore, we have no basis for concluding that 

it is contrary to law. 

{¶20} Davis’s First Assignment of Error is overruled.
Tuscarawas County, Case No. 2021 AP 12 0034 8

{¶21} The judgment of the Tuscarawas County Court of Common Pleas is 

affirmed.

By Gwin, J.,

Wise, Earle E., P.J., and

Baldwin, J., concur