[Cite as State v. Floyd, 2017-Ohio-4278.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 15 BE 0061 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

JOSHUA LEVI FLOYD ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Belmont County, Ohio 

Case No. 15 CR 120 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Daniel P. Fry 

Belmont County Prosecutor 

Atty. J. Kevin Flanagan 

Assistant Prosecuting Attorney 

147-A West Main Street 

St. Clairsville, Ohio 43950 

No Brief Filed 

For Defendant-Appellant: Atty. Zachary T. Zilai 

P.O. Box 247 

St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: June 12, 2017
[Cite as State v. Floyd, 2017-Ohio-4278.]

WAITE, J. 

{¶1} Appellant Joshua Levi Floyd appeals his September 22, 2015 Belmont 

County Common Pleas Court sentencing entry. Appellant argues that the trial court 

failed to consider the requisite R.C. 2929.13(B)(1)(b) factors when determining his 

sentence. For the reasons that follow, Appellant’s argument is without merit and the 

judgment of the trial court is affirmed. 

Factual and Procedural History 

{¶2} Appellant was arrested after he led police on a multi-county, multi-state 

high-speed chase. On May 7, 2015, a Belmont County Grand Jury indicted Appellant 

on the following charges: one count of failure to comply with order or signal of a 

police officer, a felony of the third degree in violation of R.C. 2921.331(B), (C)(5); one 

count of receiving stolen property, a misdemeanor of the first degree in violation of 

R.C. 2913.51(A); and one count of driving while under the influence of alcohol or 

drugs, a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(a). He 

was arraigned on May 14, 2015. 

{¶3} On August 26, 2015, Appellant pleaded guilty to an amended 

complaint. The state dismissed the receiving stolen property and OVI charges and 

added one count of theft of a credit card, a felony of the fifth degree. Appellant 

waived Grand Jury proceedings on the additional charge. The state also reduced the 

failure to comply charge to a felony of the fourth degree. On September 14, 2015, 

the trial court sentenced Appellant to eighteen months of incarceration for failure to 

comply and twelve months for theft of a credit card. The trial court ordered the 

sentences to run consecutively, for an aggregate total of thirty months, and gave 
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Appellant credit for 178 days served. Appellant does not contest his conviction but 

timely appeals his sentence. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED IN SENTENCING DEFENDANTAPPELLANT TO A PRISON TERM WITHOUT MAKING ANY OF THE 

NECESSARY FINDINGS CONTAINED IN R.C. §2929.13(B)(1)(b). 

{¶4} Appellant argues that a trial court must consider the factors found in 

R.C. 2929.13(B)(1)(b) when sentencing a defendant who has been convicted of 

felonies of the fourth and fifth degree. Appellant claims that the trial court failed to 

make any findings, instead stating that “none of the nine factors of law may be 

present.” (Appellant’s Brf., p. 8.) Appellant asserts that there are two remedies for 

this alleged error available pursuant to R.C. 2953.08: this Court may remand the 

matter to allow the trial court to make the requisite findings or may simply modify his 

sentence. 

{¶5} R.C. 2929.13(B)(1)(b) states: 

The court has discretion to impose a prison term upon an offender who 

is convicted of or pleads guilty to a felony of the fourth or fifth degree 

that is not an offense of violence or that is a qualifying assault offense if 

any of the following apply: 

(i) The offender committed the offense while having a firearm on or 

about the offender's person or under the offender's control. 
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(ii) If the offense is a qualifying assault offense, the offender caused 

serious physical harm to another person while committing the offense, 

and, if the offense is not a qualifying assault offense, the offender 

caused physical harm to another person while committing the offense. 

(iii) The offender violated a term of the conditions of bond as set by the 

court. 

(iv) The court made a request of the department of rehabilitation and 

correction pursuant to division (B)(1)(c) of this section, and the 

department, within the forty-five-day period specified in that division, did 

not provide the court with the name of, contact information for, and 

program details of any community control sanction of at least one year's 

duration that is available for persons sentenced by the court. 

(v) The offense is a sex offense that is a fourth or fifth degree felony 

violation of any provision of Chapter 2907. of the Revised Code. 

(vi) In committing the offense, the offender attempted to cause or made 

an actual threat of physical harm to a person with a deadly weapon. 

(vii) In committing the offense, the offender attempted to cause or 

made an actual threat of physical harm to a person, and the offender 

previously was convicted of an offense that caused physical harm to a 

person. 
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(viii) The offender held a public office or position of trust, and the 

offense related to that office or position; the offender's position obliged 

the offender to prevent the offense or to bring those committing it to 

justice; or the offender's professional reputation or position facilitated 

the offense or was likely to influence the future conduct of others. 

(ix) The offender committed the offense for hire or as part of an 

organized criminal activity. 

(x) The offender at the time of the offense was serving, or the offender 

previously had served, a prison term. 

(xi) The offender committed the offense while under a community 

control sanction, while on probation, or while released from custody on 

a bond or personal recognizance. (Emphasis added.) 

{¶6} It is apparent from the record that the trial court considered the R.C. 

2929.13(B)(1)(b) factors, specifically R.C. 2929.13(B)(1)(b), (xi) which pertains to a 

defendant’s status as a probationer at the time of the offense. At the sentencing 

hearing, the trial court stated: 

I recognize that these are Felony 4 and 5. It is this Court’s specific 

finding that though none of the nine factors of law may be present, 

mere community control sanctions are not consistent with the principles 

and purposes of the sentencing statutes, as I’ve outlined regarding his 

prior record, regarding the facts of this case, regarding the remarkable 
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situation of -- and you know, the only reason we don’t have dead 

people is the time. 

(9/14/15 Sentencing Hrg. Tr., p. 7.) 

{¶7} The trial court’s statement reflects Appellant’s prior criminal record and 

is based on the facts of this case. The record reveals that Appellant was driving at 

speeds up to 150 miles per hour through small towns and caused a collision. 

Appellant also has a lengthy criminal record, and was on probation at the time of the 

incident. Pursuant to R.C. 2929.13(B)(1)(b), (xi), a defendant’s status as a 

probationer provides the trial court with the discretion to sentence a defendant who is 

convicted of fourth and fifth degree felonies to incarceration. As the record 

demonstrates that at least one of the R.C. 2929.13(B)(1)(b) factors was met, this trial 

court had discretion to sentence Appellant to a prison term. There is nothing in the 

record suggesting that the court abused its discretion. As such, Appellant’s argument 

is without merit and the judgment of the trial court is affirmed. 

Conclusion 

{¶8} Appellant argues that the trial court failed to consider the requisite R.C. 

2929.13(B)(1)(b) factors when determining his sentence. However, the record 

demonstrates that the trial court did consider the appropriate factors. Accordingly, 

Appellant’s argument is without merit and the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.