[Cite as State v. Roosa , 2023
- Ohio
- 3757.]



## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY STATE OF OHIO,

Plaintiff

- Appellee,

- vs - KENNETH E. ROOSA, II,

Defendant

- Appellant. CASE NO. 2023 - P - 0003
Criminal Appeal from the Court of Common Pleas

Trial Court No. 2022 CR 00794

O P I N I O N Decided: October 16, 2023 Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff

- Appellee). Michael A. Partlow

, P.O. Box 1562, Stow, OH 44224 (For Defendant

- Appellant).
JOHN J. EKLUND, P.J. {¶1} Appellant, Kenneth Roosa, II, appeals his sentence after pleading guilty to two counts of Rape, first

- degree felonies, in violation of R.C. 2907.02(A)(1)(b). Appellant specifically asserts that the trial court erred in sentencing him to life imprisonment without the possibility of parole because the court should have weighed mitigating factors bearing on his sentence differently. For the following reasons, we affirm the judgment of the Portage County Court of Common Pleas. {¶2} On September 16, 2022, Appella nt entered a plea agreement in which he agreed to ple a d guilty to two counts of Rape in violation of R.C. 2907.02(A)(1)(b). He2

Case No. 2023

- P

- 0003 also agreed to accept a sentence of life imprisonment, but the agreement allowed both parties to argue whether or not he would b e sentenced with or without the possibility of parole. The court accepted Appellant’s guilty plea. On December 16, 2022, the court held a sentencing hearing. The state asserted that Appellant should be sentenced to life imprisonment without the possibil ity of parole, while Appellant argued that he should be sentenced with the possibility of parole. The court sentenced Appellant to life imprisonment without the possibility of parole. {¶3} Appellant timely appeals and raises one assignment of error: “The trial court erred by sentencing Appellant to two term[s] of life imprisonment without the possibility of parole as the record does not support such a sentence.” {¶4} Our standard of review for felony sentencing is provided by R.C. 2953.08(G)(2): The appel late 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 sent encing 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. {¶5} The Ohio Supreme Court has explained the application of R.C. 2953.08(G)(2) in relation to R.C. 2929.11 and 2929.12 in State v. Jones , 163 Ohio St.3d 242, 2020

- Ohio

- 6729, 169 N.E.3d 649. First, the Court held that R.C. 2953.08(G)(2)(a) does not allow an appellate court to vacate a sentence b ased on “lack of support in the3

Case No. 2023

- P

- 0003 record for a trial court's findings under R.C. 2929.11 and .12” because neither of those sections is enumerated within division (G)(2)(a) of the statute, and, more fundamentally, neither statute requires the court to make “f indings.” Id . at ¶ 29, ¶ 31. The Court reasoned, “[n]othing 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 best refle cts compliance with R.C. 2929.11 and 2929.12.” Id . at ¶ 42. When sentencing, a “trial court is not required to give any particular weight or emphasis to a given set of circumstances; it is merely required to consider the statutory factors in exercising i ts discretion.” State v. Delmanzo , 11th Dist. Lake No. 2007

- L

- 218,
2008

- Ohio

- 5856, ¶ 23. {¶6} Appellant acknowledges the Ohio Supreme Court’s precedent in Jones , but contends that we should disregard it and find that the trial court improperly weighed mitiga ting factors under R.C. 2929.12. Appellant asserts that the court should have sentenced him to life imprisonment with the possibility of parole because he was a first

time offender and “the circumstances of Appellant’s life ha d dramatically changed since the events giving rise to the charges.” We cannot disregard the Ohio Supreme Court’s holding in Jones . Under the judicial doctrine of stare decisis, this court, as a lower court, “is bound to follow a decision of the Supreme Court of Ohio.” State v. Abuhashish , 6th Dist. Wood No. WD

- 07

- 048, 2008

- Ohio

- 3849, ¶ 42. “ R.C. 2953.08(G)(2) does not permit an appellate court to conduct an independent review of a trial court's sentencing findings under R.C. 2929.12 * * *

. ” State v. Bryant , 168 Ohio St.3d 250, 2022

- Ohio

- 1878, 198 N.E.3d 68, ¶ 2 1

. This court is therefore without authority to independently weigh mitigating factors under R.C. 2929.12. Jones , at ¶ 42.4

Case No. 2023

- P

- 0003 {¶7} Appellant’s assignment of error is without merit. {¶8} The judgment of the Portage County Court of Co mmon Pleas is affirmed.

EUGENE A. LUCCI, J. , ROBERT J. PATTON, J. ,
concur.