[Cite as State v. Allen , 2022-Ohio-488.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO Plaintiff-Appellee

v. JAMES ALLEN Defendant-Appellant : : : : : : : : : : Appellate Case No. 2021-CA-37 Trial Court Case No. 2020-CR-414 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 18th day of February, 2022.

. . . . . . . . . . . ANDREA K. BOYD, Atty. Reg. No. 0074332, Assistant Prosecuting A ttorney, Ohio Attorney General’s Office, 30 East Broad Street, 23rd Floor, Co lumbus, Ohio 43215 Attorney for Plaintiff-Appellee KEVIN L. LENNEN, Atty. Reg. No. 0038993, 120 West Second Street , Suite 820, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . .-2- DONOVAN, J. {¶ 1} Defendant-appellant James Allen appeals his conviction for one count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the first degree; one count of disrupting public services, in violation of R.C. 2923.02 and 29 09.04, a felony of the fifth degree; and one count of menacing by stalking, in violation of R.C. 2903.211, a felony of the fourth degree. {¶ 2} On July 21, 2020, Allen was indicted for three counts of aggrav ated burglary, three counts of kidnapping, three counts of attempted rape, two counts of assault, three counts of disrupting public services, one count of felonious as sault, and one count of menacing by stalking. All of the offenses were related to inci dents that occurred over the course of several days in early November 2019 involving Allen’s ex-girlfriend, R.R. {¶ 3} On June 10, 2021, Allen pled guilty to one count of assault, on e count of disrupting public services, and one count of menacing by stalki ng. In exchange for Allen’s guilty pleas, the State dismissed the remaining counts in the indictment, and the parties agreed to jointly recommend an aggregate sentence of 24 months in prison. Allen also agreed to waive a presentence investigation report a nd to proceed directly to sentencing. {¶ 4} The trial court rejected the parties’ joint 24-month sentencin g recommendation; instead, it imposed six months for assault; 12 months for disrupting public services; and 18 months for menacing by stalking. The t rial court ordered that Allen’s sentences for disrupting public services and menacing b y stalking be served consecutively, and that his sentence for assault be served conc urrently to those sentences, for an aggregate sentence of 30 months in prison.-3- {¶ 5} Allen appeals. {¶ 6} Allen’s first assignment of error states: THE SENTENCE OF THE TRIAL COURT IS CONTRARY TO LAW SINCE IT DID NOT CONSIDER THE PURPOSES AND PRINCIPLES OF FELONY SENTENCING AS SET FORTH IN O.R.C. 2929.11 OR THE SERIOUSNESS AND RECIDIVISM FACTORS OF O.R.C. 2929.12. {¶ 7} Allen contends that the sentence imposed by the trial court was contrary to law because the record establishes that the court failed to pro perly consider the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12. On that basis, Allen argues that his sentence should be modified. {¶ 8} To the extent that Allen seeks to have this Court modify his se ntence, we emphasize that the Supreme Court of Ohio has clarified an appel late court's review of a felony sentence under R.C. 2953.08(G)(2). State v. Jones , 163 Ohio.St.3d 242, 2020- Ohio-6729, 169 N.E.3d 649, ¶ 39. The Supreme Court determined that R.C. 2953.08(G)(2)(a) “clearly does not provide a basis for an appel late court to modify or vacate a sentence if it concludes that the record does not supp ort the sentence under R.C. 2929.11 and R.C. 2929.12 because * * * R.C. 2929.11 and R. C. 2929.12 are not among the statutes listed in the provision.” Id . at ¶ 31. Thus, the Supreme Court concluded that an appellate court may not modify or vacate a fe lony sentence based upon a finding by clear and convincing evidence that the record does not support the trial court's “findings” under R.C. 2929.11 and R.C. 2929.12. Id . at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that-4- best reflects compliance with R.C. 2929.11 and 2929.12.”). {¶ 9} In Jones , the Supreme Court also confirmed that R.C. 2953.08(G)(2)(b) d oes not provide a mechanism for an appellate court to modify or vac ate a felony sentence based upon a finding that the sentence is “contrary to law” bec ause it clearly and convincingly is not supported by the record under R.C. 2929.11 and R.C. 2929.12. Id . at ¶ 32-39. “As a result of the Supreme Court's holding in Jones , when reviewing felony sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, we shall no longer analyze whether those sentences are unsupported by the record. We simply must determine whether those sentences are c ontrary to law.” State v. Dorsey , 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A senten ce is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentenc ing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.” Id ., citing State v. Brown , 2017- Ohio 8416, 99 N.E.3d 1135 (2d Dist.). {¶ 10} The record demonstrates that the prison terms imposed by the tr ial court in this case were within the statutory range and that the trial co urt specifically considered the requisite statutory factors in R.C. 2929.11 and R.C. 2929.1 2 when it fashioned Allen's aggregate sentence. Although the transcript of the sentencing hearing establishes that the trial court failed to specifically address the sentencing f actors in R.C. 2929.11 and R.C. 2929.12, absent an affirmative showing to the contrary, an appellate court will generally presume that the trial court did consider the statuto ry factors. State v. Money , 2d Dist. Clark No. 2009-CA-119, 2010-Ohio-6225, ¶ 10. This pre sumption may be rebutted by an affirmative showing that the trial court failed to consider the factors, or by-5- demonstrating the chosen sentence is “strikingly inconsistent” with the applicable factors.
Id . Furthermore, the trial court stated the following in its jud gment entry of conviction: The Court considered the record, oral statements of counsel, th e defendant’s statement, the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and then balanced the seriousness and recidivism factors under Ohio Revised Code Section 2929.12. {¶ 11} Additionally, the trial court stated that Allen had a history o f criminal convictions in Clark County for breaking and entering, burglary , criminal trespass, possession of cocaine, theft with an elderly specification, and forgery. Disposition Tr. 16. The trial court also found that with respect to his previous co nvictions, Allen had served “four separate and distinct prison terms.” Id . Thus, Allen cannot demonstrate that his sentence was clearly and convincingly contrary to law, and his sentence must therefore be affirmed. See State v. Burks , 2d Dist. Clark No. 2019-CA70, 2021-Ohio-224, ¶ 9. Under Jones , this ends the inquiry regarding the individual and aggregate sentences. {¶ 12} Allen’s first assignment of error is overruled. {¶ 13} Allen’s second assignment of error states: THE TRIAL COURT COMMITTED ERROR WHEN IT IMPOSED MAXIMUM AND CONSECUTIVE SENTENCES WITHOUT ADEQUATE JUSTIFICATION. {¶ 14} Allen argues that the trial court erred when it imposed maximum consecutive sentences. Because we have already found that Alle n’s individual and aggregate sentences were not contrary to law in our analysis of the previous assignment of error, we need only determine if the trial court erred when it imposed consecutive-6- sentences. {¶ 15} In general, it is presumed that prison terms will be served con currently. R.C. 2929.41(A); State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16, 23 (“judicial fact-finding is once again required to overcome t he statutory presumption in favor of concurrent sentences”). However, after determining th e sentence for a particular crime, a sentencing judge has discretion to order an offender t o serve individual counts of a sentence consecutively to each other or to sentences impos ed by other courts. State
v. Dillon , 2d Dist. Greene No. 2020-CA-4, 2020-Ohio-5031, ¶ 44. {¶ 16} R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if it finds that (1) consecutive sentencing is necessary to protec t the public from future crime or to punish the offender, (2) consecutive sentences are not di sproportionate to the seriousness of the offender's conduct and to the danger the off ender poses to the public, and (3) any of the following applies: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as par t of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender' s conduct. (c) The offender's history of criminal conduct demonstrates tha t consecutive-7- sentences are necessary to protect the public from future crime by the offender. {¶ 17} In imposing consecutive sentences, the trial court made the req uired statutory findings. The court found, both orally and in its ju dgment entry, that consecutive sentences were necessary to protect the public or t o punish Allen and that consecutive sentences were not disproportionate to the seriousn ess of his conduc t and to the danger that he posed to the public. Additionally, the c ourt found that Allen's history of criminal conduct demonstrated that consecutive sentences wer e necessary to protect the public from future crime by him. As previously stated, the trial court found that Allen had a history of criminal convictions in Clark County for break ing and entering, burglary, criminal trespass, possession of cocaine, theft with an elderly specification, and forgery. Disposition Tr. 16. The trial court also found that with respe ct to his previous convictions, Allen had served “four separate and distinct prison terms.” Id . Notably, the 24-month sentence recommended by the parties necessarily contemplated a consecutive term. {¶ 18} Upon review of Allen's criminal history, we cannot conclude tha t the trial court's finding was clearly and convincingly unsupported by the record. The record amply supported the trial court's conclusion that Allen's histo ry of criminal conduct demonstrated that consecutive sentences were necessary to prote ct the public from future crime by him. {¶ 19} Allen’s second assignment of error is overruled. {¶ 20} Both of Allen’s assignments of error having been overruled, the judgment of the trial court is affirmed.

. . . . . . . . . . . . .-8- WELBAUM, J. and EPLEY, J., concur.

Copies sent to: Andrea K. Boyd Kevin L. Lennen Hon. Douglas M. Rastatter