[Cite as State v. Duchenois , 2021-Ohio-1602.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. BRIAN DUCHENOIS Defendant-Appellant : : : : : : : : : : Appellate Case No. 28973

Trial Court Case No. 2019-CR-4277 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 7th day of May, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074 332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Su ite 460, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J.-2-

{¶ 1} Defendant-Appellant, Brian Duchenois, appeals from his convicti on for rape; specifically, he challenges his prison sentence. Finding no ba sis on which to modify or vacate the sentence, we affirm. I. Factual and Procedural Background {¶ 2} Duchenois admitted to engaging in multiple sexual acts with his girlfriend’s daughter. In January 2020, he was indicted on one count of rape , four counts of unlawful sexual conduct with a minor, five counts of sexual battery, one count of disseminating matter harmful to juveniles, and four counts of sexual impositi on. Duchenois pleaded guilty to rape, a first-degree felony, and the other counts wer e dismissed. The trial court sentenced him to prison for a definite minimum of 9 years up to 13.5 years. {¶ 3} Duchenois appeals. II. Analysis {¶ 4} The sole assignment of error alleges:

THE TRIAL COURT ERRED BY IMPOSING A SENTENCE OF NINE

YEARS IN PRISON. {¶ 5} Duchenois concedes that his sentence was lawful and was within the statutory range for a first-degree felony. But he argues that, under R.C. 2929.11 and R.C. 2929.12, a nine-year prison sentence was excessive and unsuppor ted by the record. {¶ 6} R.C. 2953.08(G)(2) governs the appellate review of felony sente nces. It provides that an appellate court may vacate or modify a sentenc e if the court clearly and convincingly finds that either (a) the record does not support the sentencing court’s findings under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C. 2929.20(I);-3- or (b) the sentence is otherwise contrary to law. {¶ 7} Clarifying how an appellate court is to review a felony sentenc e, the Ohio Supreme Court recently held that R.C. 2953.08(G)(2)(a) “clearly does not provide a basis for an appellate court to modify or vacate a sentence if it con cludes that the record does not support the sentence under R.C. 2929.11 and R.C. 2929.12 be cause * * * R.C. 2929.11 and R.C. 2929.12 are not among the statutes listed in t he provision.” State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __ N.E.3d __, ¶ 31. Acc ordingly, we stated that “the Supreme Court concluded that an appellate cour t may not modify or vacate a felony sentence based upon a finding by clear and conv incing evidence that the record does not support the trial court’s ‘findings’ under R.C. 2929.11 and R.C. 2929.12.” State v. Burks, 2d Dist. Clark No. 2019-CA-70, 2021-Ohio-224, ¶ 7. As for R.C. 2953.08(G)(2)(b), we held that “ State v. Jones also confirms that R.C. 2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify o r vacate a felony sentence based upon a finding that the sentence is ‘contrary to law’ because it clearly and convincingly is not supported by the record under R.C. 2929 .11 and R.C. 2929.12.”

Id. at ¶ 8, citing Jones at ¶ 32-39. {¶ 8} The record here shows that the trial court considered R.C. 2929 .11 and R.C. 2929.12 and, as Duchenois admits, the sentence was lawful. It f ollows, then, that there is no basis on which we can modify or vacate Duchenois’s prison se ntence. See Burks at ¶ 9 (holding the same where the trial court considered both sen tencing statutes and the defendant’s sentences were not contrary to law).

III. Conclusion {¶ 9} The sole assignment of error is overruled.-4- {¶ 10} The trial court’s judgment is affirmed.

. . . . . . . . . . . . .

WELBAUM, J. and EPLEY, J., concur.

Copies sent to: Mathias H. Heck, Jr. Elizabeth A. Ellis Travis Kane Hon. Gerald Parker