[Cite as State v. Hamilton , 2020-Ohio-5330.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Crai g R. Baldwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2019 CA 0120 RONALD K. HAMILTON Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2018-CR-0514

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 18, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellan t

GARY BISHOP JACEDA BLAZEF Prosecutin g Attorne y 409 Park Avenue Wes t Richland Count y , Ohio Mansfield, Ohio 44906

JOSEPH C. SNYDER Assistant Prosecutin g Attorne y 38 South Park Stree t Mansfield, Ohio 44902Richland Count y , Case No. 2019 CA 0120 2

Hoffman, P.J. {¶1} Defendant-Appellant Ronald Hamilton appeals the judgment entere d by the Richland County Common Pleas Court convicting him following his guilty plea to gross sexual imposition (R.C. 2907.05(B)), and sentencing him to sixt y months incarceration. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} The victim in the instant case is a seven-year-old girl, who li ved near Appellant. Appellant’s girlfriend and the victim’s mother were best friends, and the two families were close friends as well as neighbors. The victim r eferred to Appellant as

“Uncle Ronnie.” {¶3} Between the dates of December 10, 2017, and March 26, 2018, App ellant’s daughter reported to her school something was going on with the victim in the instant case. The school and the Shelby Police Department became invol ved. The victim reported to law enforcement she did not like Uncle Ronnie becau se he played the “tickle monster game” with her, during which he licked her vaginal area

. {¶4} Appellant was indicted by the Richland County Grand Jury with r ape (R.C. 2907.02(A)(1)(b)) and two counts of gross sexual imposition (R. C. 2907.05(A)(4), (B)). On October 21, 2019, Appellant pled guilty to one count of gros s sexual imposition in violation of R.C. 2907.05(B), a felony of the third degree. Th e remaining counts were dismissed. Following a presentence investigation and a sentenc ing hearing, the trial court sentenced Appellant to sixty months incarceration. {¶5} It is from the November 26, 2019, judgment of the Richland Coun ty Common Pleas Court Appellant prosecutes his appeal, assigning a s error:Richland Count y , Case No. 2019 CA 0120 3

I. THE TRIAL COURT ABUSED ITS DISCRETION IN

SENTENCING DEFENDANT-APPELLANT TO MORE THAN THE

MINIMUM SENTENCE.

II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN

SENTENCING DEFENDANT TO SIXT Y MONTHS PRISON WHEN HIS

MAXIMUM EXPOSURE TO PRISON WAS THIRTY-SIX MONTHS.

I. {¶6} In his first assignment of error, Appellant argues the court ab used its discretion in sentencing him to the maximum term of incarcerati on of sixty months. {¶7} We review felony sentences using the standard of review set for th in R.C. 2953.08(G)(2), which provides in pertinent part:

(2)The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underly ing the sentence or modification given by the sentencing court. 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 rev iew is not whether the senten cing

court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly find s either of the following:Richland Count y , Case No. 2019 CA 0120 4

(a)That the record does not support the sentencing court's fin dings 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 Revi sed Code, whichever, if any, is relevant; (b)That the sentence is otherwise contrary to law (emphasis ad ded).

{¶8} A trial court's imposition of a maximum prison term is not cont rary to law as long as the court sentences the offender within the statutory r ange for the offense, and in so doing, considers the purposes and principles of felony sente ncing set forth in R.C.

2929.11 and the seriousness and recidivism factors set forth R. C. 2929.12. State v.

Kinser , 5th Dist. Muskingum No. CT2019-0089, 2020-Ohio-3881, ¶ 10, citing State v. Santos, 8th Dist. Cuyahoga No. 103964, 2016-Ohio-5845, ¶ 12. Although a trial court must consider the factors in R.C. 2929.11 and 2929.12, there is no requirement the court state its reasons for imposing a maximum sentence, or for impos ing a particular sentence within the statutory range. Id . R.C. 2929.12 does not require the trial court to state on the record it has considered the statutory criteria concerning seri ousness and recidivism. State v. Hayes , 5th Dist. Knox No. 18CA10, 2019-Ohio-1629, ¶49. {¶9} At the sentencing hearing, the trial court indicated it had rev iewed the presentence investigation report, as well as letters sent to th e court on Appellant’s behalf. Dr. Bob Stinson, a forensic psychologist, and Appellant’s pasto r both spoke on Appellant’s behalf. {¶10} The trial court stated at the sentencing hearing it had conside red the purposes and principles of sentencing under R.C. 2929.11. The trial court found the injuryRichland Count y , Case No. 2019 CA 0120 5

was exacerbated by the victim’s age, and she was abused by an a dult she trusted. Sent. Tr. 44. The trial court found what happened to the victim woul d never be erased, and she

would deal with this offense for the rest of her life. Sent. T r. 45. The court found Appellant held a position of trust to the victim. Id . Appellant was a trusted neighbor and was permitted to be around the victim when his own daughter babysat the victim, giving him access and the opportunity for abuse. Id . The court found none of the less serious factors

set forth in the statute existed in the instant case. Id

. {¶11} The trial court further noted some of the recidivism factors ap plied to Appellant. Appellant had a history of criminal convictions, al though he had no prior felony convictions. Sent. Tr. 46. Although Appellant said he was sor ry, the trial court stated it

did not “see a lot of remorse other than that.” Id

. {¶12} Based on the foregoing, we find the trial court considered the purposes and principles of sentencing (R.C. 2929.11) as well as the factors that the court must consider when determining an appropriate sentence. (R.C. 2929.12). Altho ugh not required to do so, the trial court set forth its reasons for the maximum sente nce on the record. While Appellant may disagree with the weight given to these factors b y the trial judge, Appellant's sentence was within the applicable statutory range, and we find no basis for concluding the sentence is contrary to law. {¶13} The first assignment of error is overruled.

II. {¶14} In his second assignment of error, Appellant argues the trial c ourt erred in sentencing him to 60 months incarceration because his maximum e xposure was a sentence of 36 months.Richland Count y , Case No. 2019 CA 0120 6

{¶15} Appellant argues his maximum sentence was limited to 36 months incarceration based on R.C. 2907.05(C):

(2) Gross sexual imposition committed in violation of division (A)(4) or (B) of this section is a felony of the third degree. Except as otherwise provided in this division, for gross sexual imposition committe d in violation of division (A)(4) or (B) of this section there is a presumptio n that a prison term shall be imposed for the offense. The court shall impose o n an offender convicted of gross sexual imposition in violation of division ( A)(4) or (B) of this section a mandatory prison term, as described in division (C)(3) of this section, for a felony of the third degree if either of the foll owing applies: (a) Evidence other than the testimony of the victim was admitt ed in the case corroborating the violation; (b) The offender previously was convicted of or pleaded guilty to a violation of this section, rape, the former offense of feloniou s sexual penetration, or sexual battery, and the victim of the previous offense was less than thirteen years of age. (3) A mandatory prison term required under division (C)(2) of this section shall be a definite term from the range of prison terms provided in division (A)(3)(a) of section 2929.14 of the Revised Code for a felony of the third degree.Richland Count y , Case No. 2019 CA 0120 7

{¶16} Appellant acknowledges R.C. 2929.14(A)(3)(a) provides for a sen tence of up to 60 months for a violation of R.C. 2907.05(B). However, h e argues R.C. 2907.05(C)(3) only refers to R.C. 2929.14 if the conditions of a prior conviction and corroborating evidence is met. Therefore, he argues the maximu m sentence is 36 months, which is the maximum sentence for a third degree felony which is not sex-related. We disagree. {¶17} In discussing the constitutionality of the corroboration requir ement, the Ohio Supreme Court explained, “Pursuant to R.C. 2907.05(C)(2)(a), th e court shall impose a mandatory prison term when “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” State v. Bevly , 142 Ohio St.3d 41, 2015- Ohio-475, 27 N.E.3d 516, ¶ 8. By its plain language, R.C. 2907 .05(C)(2) distinguishes when the prison term for violation of R.C. 2907.05 is mandatory , and when there is a mere presumption in favor of prison. Pursuant to R.C. 2929.14(A)(3) (a), a 60 month sentence is within the statutory range for a violation of R.C. 2907.05, whether a prison sentence is mandatory or presumptive. We find nothing in R.C. 2907.05(C), which governs when a prison sentence is mandatory as opposed to merely presumptive, alters the maximum sentence the trial court could impose in the instant case.Richland Count y , Case No. 2019 CA 0120 8

{¶18} The second assignment of error is overruled. {¶19} The judgment of the Richland Coun ty Common Pleas Court is affir med.

By: Hoffman, P.J. Baldwin, J. and Wise, Earle, J. concur