[Cite as State v. Pack, 2018-Ohio-4632.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

WARREN PACK 

Defendant-Appellant 

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Appellate Case No. 2018-CA-52 

Trial Court Case No. 2017-CR-0647 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 16th day of November, 2018. 

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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark 

County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502

 Attorney for Plaintiff-Appellee 

 

KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327 

 Attorney for Defendant-Appellant 

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WELBAUM, P.J. 
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{¶ 1} Defendant-appellant, Warren Pack, appeals from the 30-month prison 

sentence he received in the Clark County Court of Common Pleas after he pled guilty to 

one count of aggravated trafficking in drugs. In support of his appeal, Pack claims his 

sentence was contrary to law because it was not supported by the record and was 

excessive in light of his minimal criminal history and eligibility for community control 

sanctions. For the reasons outlined below, the judgment of the trial court will be affirmed. 

Facts and Course of Proceedings 

{¶ 2} On October 24, 2017, Pack was indicted for one count of aggravated 

trafficking in drugs and one count of aggravated possession of drugs, both felonies of the 

third degree. Following his indictment, Pack entered a plea agreement and pled guilty 

to the charge of aggravated trafficking in drugs in exchange for the State dismissing the 

charge of aggravated possession of drugs. At the plea hearing, the trial court accepted 

Pack’s guilty plea, ordered a presentence investigation report (“PSI”), and scheduled the 

matter for a sentencing hearing. At the sentencing hearing, the trial court indicated that 

it had reviewed the PSI, Pack’s sentencing memorandum, and the letters submitted on 

Pack’s behalf. After allowing both parties to address the court, the trial court sentenced 

Pack to 30 months in prison. 

{¶ 3} Pack now appeals from the 30-month prison sentence and raises one 

assignment of error for review. 

Assignment of Error 
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{¶ 4} Pack’s sole assignment of error is as follows: 

APPELLANT’S 30[-]MONTH PRISON SENTENCE IS CONTRARY TO LAW. 

{¶ 5} Under his single assignment of error, Pack contends his 30-month prison 

sentence was contrary to law because it was not supported by the record and was 

excessive in light of his minimal criminal history and eligibility for community control 

sanctions. We disagree with Pack’s claims. 

{¶ 6} As a preliminary matter, we note that appellate courts are required to review 

felony sentences under the standard of review set forth in R.C. 2953.08(G)(2). State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. R.C. 2953.08(G)(2) 

provides that: 

The appellate court may increase, reduce, or otherwise modify a sentence 

that is appealed under this section or may vacate the sentence and remand 

the matter to the sentencing court for resentencing. The appellate court’s 

standard for review is not whether the sentencing court abused its 

discretion. The appellate court may take any action authorized by this 

division if it clearly and convincingly finds either of the following: 

(a) That the record does not support the sentencing court’s findings under 

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, 

if any, is relevant; 

(b) That the sentence is otherwise contrary to law. 

{¶ 7} Pursuant to the plain language of R.C. 2953.08(G)(2), this court may vacate 

or modify Pack’s sentence only if it “determines by clear and convincing evidence that the 
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record does not support the trial court’s findings under relevant statutes or that the 

sentence is otherwise contrary to law.” Marcum at ¶ 1. This is a very deferential 

standard of review, as the question is not whether the trial court had clear and convincing 

evidence to support its findings, but rather, whether we clearly and convincingly find that 

the record fails to support the trial court’s findings. State v. Rodeffer, 2013-Ohio-5759, 

5 N.E.3d 1069, ¶ 31 (2d Dist.), citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, 

¶ 21 (8th Dist.). 

{¶ 8} In this case, the trial court was not required to make any findings under the 

“relevant statutes” listed in R.C. 2953.08(G)(2)(a). Although the trial court could have 

made findings under R.C. 2929.13(D) to overcome the presumption that a prison term 

was necessary for Pack’s offense, see R.C. 2925.03 (C)(1)(c), the trial court instead 

chose to sentence Pack to prison and, therefore, was not required to make any such 

findings. Since no findings were made under the relevant statutes listed in R.C. 

2953.08(G)(2)(a), the pertinent issue is whether Pack’s 30-month prison sentence was 

clearly and convincingly contrary to law. 

{¶ 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 [set forth in R.C. 2929.11] and the seriousness and recidivism factors [set 

forth in R.C. 2929.12].” (Citation omitted.) State v. Bradley, 2d Dist. Greene No. 2017-

CA-64, 2018-Ohio-3192, ¶ 5. “The trial court has full discretion to impose any sentence 

within the authorized statutory range, and the court is not required to make any findings 

or give its reasons for imposing maximum or more than minimum sentences.” State v. 

Fyffe, 2018-Ohio-112, 109 N.E.3d 51, ¶ 31 (2d Dist.), quoting State v. King, 2013-Ohio-
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2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). 

{¶ 10} However, in exercising its discretion, a trial court must consider the statutory 

policies set out in R.C. 2929.11 and R.C. 2929.12. State v. Castle, 2016-Ohio-4974, 67 

N.E.3d 1283, ¶ 26 (2d Dist.). A defendant’s sentence is not contrary to law when the 

trial court expressly states in its sentencing entry that it has considered the principles and 

purposes of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in 

R.C. 2929.12, but neglects to mention those statutes at the sentencing hearing. State v. 

Battle, 2d Dist. Clark No. 2014 CA 5, 2014-Ohio-4502, ¶ 15, citing State v. Miller, 2d Dist. 

Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43. Even if there is no specific mention of R.C. 

2929.11 or R.C. 2929.12 in the record, it is presumed that the trial court gave proper 

consideration to those statutes. State v. English, 2d Dist. Montgomery No. 26337, 2015-

Ohio-1665, ¶ 22. 

{¶ 11} In this case, the 30-month prison sentence imposed by the trial court was 

within the authorized statutory range. See R.C. 2929.14(A)(3)(b). In addition, the trial 

court expressly stated in its sentencing entry that it had “considered the * * * principles 

and purposes of sentencing under [R.C. 2929.11], and then balanced the seriousness 

and recidivism factors under [R.C. 2929.12].” Judgment Entry of Conviction (Apr. 11, 

2018), Clark C.P. No. 2017-CR-647, Docket No. 23, p. 1. Therefore, contrary to Pack’s 

claim otherwise, Pack’s 30-month prison sentence was not clearly and convincingly 

contrary to law. 

{¶ 12} “[A]n appellate court 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.” Marcum, 146 Ohio St.3d 516, 
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2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. Again, this is a very deferential standard of 

review. If the record does not contain evidence from which we can determine that the 

sentence was clearly and convincingly improper, then we are without authority to vacate 

it. In turn, the record must contain substantial affirmative factual information in support 

of the defendant to conclude that the trial court’s sentencing decision was in error. See 

State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 40 (2d Dist.). 

{¶ 13} After a thorough review, we do not find by clear and convincing evidence 

that the record fails to support the trial court’s sentencing decision, as the record reveals 

that Pack has a history of drug-related offenses. Specifically, the PSI indicated that on 

two separate occasions in 2005, Pack was convicted of wrongful use of cocaine while he 

was serving in the United States Army, which ultimately resulted in Pack being discharged 

from service under other than honorable conditions. The PSI also established that in 

January 2018, Pack was convicted of third-degree-felony aggravated possession of drugs 

in Montgomery County, Ohio, for which Pack received community control sanctions. 

{¶ 14} The PSI further indicated that at the time of his sentencing hearing in this 

case, Pack had additional charges for aggravated possession of drugs, illegal 

manufacturing of drugs, trafficking in drugs, and illegal use of supplemental benefits 

pending before the Montgomery County Grand Jury. In addition, Pack was convicted of 

disorderly conduct in 2012, for which he completed one year of probation. The PSI also 

indicated that Pack had a juvenile record for committing a crime that would have been 

charged as a misdemeanor if he had committed it as an adult. We also note that Pack 

received a moderate risk of recidivism score on the Ohio Risk Assessment System. 

{¶ 15} Although Pack’s criminal history is not extensive and the record indicates 
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that Pack suffers from depression and post-traumatic stress disorder as a result of serving 

in the military, we cannot say the record contains clear and convincing evidence that the 

30-month prison sentence was improper. Rather, the record indicates that Pack has not 

responded favorably to previous sanctions and that Pack has chosen to continue down a 

criminal path by engaging in further drug-related activity. 

{¶ 16} The fact that this court may have imposed a lesser sentence under the 

circumstances is irrelevant, for it is well established that “ ‘appellate courts are prohibited 

from substituting their judgment for that of the trial judge.’ ” (Emphasis omitted.) 

Withrow, 2016-Ohio-2884, 64 N.E.3d 553, at ¶ 37, quoting State v. Overholser, 2d Dist. 

Clark No. 2014-CA-42, 2015-Ohio-1980, ¶ 38 (Welbaum, J., dissenting). Simply stated, 

the trial court’s sentence should not be disturbed unless the record overwhelming 

supports a contrary result, and that is simply not the case here. See id. at ¶ 39. 

{¶ 17} For the foregoing reasons, Pack’s assignment of error is overruled. 

Conclusion 

{¶ 18} Having overruled Pack’s sole assignment of error, the judgment of the trial 

court is affirmed. 

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FROELICH, J., concurs in judgment only. 

TUCKER, J., concurs. 
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Copies sent to: 

Andrew P. Pickering 

Kirsten Knight 

Hon. Douglas M. Rastatter