[Cite as State v. Jones , 2014-Ohio-1540.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO Plaintiff-Appellee

v. KYLE JONES Defendant-Appellant

Appellate Case No. 2013-CA-63 Trial Court Case No. 2013-CR-223
(Criminal Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 11th day of April, 2014.

. . . . . . . . . . . LISA M. FANNIN, Attorney. Reg. No. 00082337, A ssistant Clark County Prosecutor, 50 East Columbia Street, P.O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 111 West First Street, Suite 518, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . WELBAUM, J. 2

 {¶ 1} Defendant-appellant, Kyle J ones, appeals from his conviction and sentence in the Clark County Court of Common Pleas after a jury found him guilty of failing to comply with the order or signal of a police o fficer in violation of R.C. 2921.331(B). For the reasons outlined below, the judgment of the trial court is affirmed.

Facts and Course of Proceedings {¶ 2} On April 1, 2013, Kyle Jones was indict ed on one count of failing to comply with the order or signal of a police officer in violation of 2921.331(B), a third-degree felony. Jones pled not guilty to the charge and the matter proceeded to a jury trial. The following facts were elicited at trial. {¶ 3} On the night of March 17, 2013, Officer Morris Johnson of the Ohio State Highway Patrol was driving west bound on Interstate 70 in Clark County, Ohio, when he noticed a vehicle with front-end damage jerking left to right in an effort to stay within its lane of travel. As Johnson followed the vehicle, he noticed that it had no rear license-p late light. He also observed the vehicle cross over into the right fog lane. As a result of these violations, Johnson activated his overhead lights and pulled the vehicle over. {¶ 4} When Johnson exited his cruiser and appro ached the vehicle, the driver turned his head to look at him and then quickly drove away. Thereafter, Johnson pursued the driver in a high-speed chase that reached speeds up to 123 miles per hour . Eventually the driver pulled off the road, jumped out of his vehicle, and ra n into a nearby wooded area. Multiple officers arrived at the scene; however, the fleeing suspect could not be detained. The officers ran the license plates on the abandoned vehicle and discovered that J ones was the owner. Using a 3

 photograph, Johnson was able to identify Jones as the suspect driver, a nd Jones was later found and arrested. {¶ 5} The entire series of events, other than Jones’s arrest, was captured on video via Johnson’s cruiser camera. The video, which last ed approximately 81 minut es, was presented to the jury as evidence at trial. Following delib eration, the jury found Jones guilty of failing to comply with the order or signal of a police o fficer and creating a substa ntial risk of serious physical harm to persons or property. The matte r was then scheduled for a sentencing hearing on July 23, 2013. At sentencing, defense counsel moved for a new trial on grounds that he and Jones had observed jurors sleeping during the vide o presentation. However, neither Jones, nor his counsel raised any objection regarding jurors sleeping during the course of trial. The trial court overruled the motion for new trial and sentenced Jones to th ree years in prison. The trial court also suspended Jones’s driver’s license for five years. {¶ 6} Jones now appeals from his criminal conviction and sentence, raising two assignments of error for our review.

Assignment of Error No. 1 {¶ 7} Jones’s First Assignment of Error is as follows:
APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE. {¶ 8} Under this assignment of error, Jone s argues that his defense counsel was ineffective in failing to object upon discovering jurors sleeping dur ing a portion of his trial. {¶ 9} We review allegations of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 4

 674 (1984) and adopted by the Supreme Court of Ohio in State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective- assistance claim, Jones must establish that his trial counsel’s performance wa s deficient and that the defici ent performance prejudiced him. Strickland at paragraph 2 of the sylla bus. A trial counsel’s perfo rmance is deficient if the conduct complained of fell below an obj ective standard of reasonableness. Id . at paragraph 2(a) of the syllabus. Trial counsel is entitled to a st rong presumption that his or her conduct falls within the wide range of reasonable assistance. Id

. {¶ 10} As for prejudice, a trial counsel’s de ficient performance is prejudicial when counsel’s errors are serious enoug h to create a reasonable probability that, but for the errors, the result of trial would ha ve been different. Id. at paragraph 2(b) of th e syllabus. In order to demonstrate prejudice due to counsel ’s failure to object to sleeping jurors, Jones “needs to assert the exact testimony that the sleeping juror[s] missed.” State v. Wilson , 8th Dist. Cuyahoga No. 98033, 2012-Ohio-4065, ¶ 11, citing State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 187. “Where there is no evidence that the allegedly sleeping juror[s] missed large or critical portions of the trial, there is no evidence that prejudice occurred.” Id ., citing State v. Sanders , 92 Ohio St.3d 245, 253, 750 N.E.2d 90 (2001) and State v. Steagall , 8th Dist. Cuyahoga No. 83991, 2004-Ohio-5035, ¶ 25. {¶ 11} In this case, during the sentencing hear ing, Jones’s trial counsel indicated that both he and Jones observed jurors sleeping during a portion of the trial a nd moved for a new trial on those grounds. However, even if the allegation is true, neither Jones, nor his counsel ever raised an objection or even mentioned the sleeping jurors during trial. “An objection to a sleeping juror must be made at trial because the trial court has significant discretion in how it 5

 resolves an incident with a sleeping juror.” Id . at 9, citing Sanders at 253. “One cannot sit on his rights, hope for a favorable jury verdict and after receiving an unfavor able verdict, finally assert an issue which was easily reme died at the time of its inception.” State v. Brletich , 7th Dist. Columbiana No. 98 CO 84, 2000 WL 875325, *3 (June 28, 2000), citing State v. Sapp , 10th Dist. Franklin No. 94APA10-1524, 1995 WL 491390,*7-8 (Aug. 15, 1994). (Other citation omitted.) Therefore, Jones, th rough his counsel, had a duty to notify the court of any sleeping jurors at the time they were discovered sleeping, not after the entire trial had been completed. See, e.g., Sapp at *8 (finding that a defendant had a duty to notify the court of sleeping jurors during the course of tria l and not at the defendant’s sentencing hearing). {¶ 12} Nevertheless, even assuming that trial counsel’s failure to object to the alleged sleeping jurors qualifies as deficient performance, Jones’s ineffective-assistance claim still fails because there is nothing in the record indicating that the jurors missed a large or critical portion of the trial. While Jones claims that jurors were sleeping during the video evidence, which was 81 minutes long, Jones does not indicate when or how long the jurors were allegedly sleeping. In addition, after viewing the entire video, we fi nd that a majority of the video was uneventful and not critical to the determination of this case. Rather, only the first six minutes were critical, as that portion of the video de picts Officer Johnson following, pulling over, and chasing Jones’s vehicle. The first six minutes also show Jones exiting his car and fleeing into the woods. Because the record presented to us on appeal does not indicate when or how long the jurors were allegedly sleeping, we cannot dete rmine what, if anything, they may have missed during trial. Accordingly, Jones has failed to establish any resulting prejudice. {¶ 13} Because Jones failed to establish any resulting prejudice as required by 6

 Strickland , his First Assignment of Error is overruled.

Assignment of Error No. 2 {¶ 14} Jones’s Second Assignment of Error is as follows:
THE TRIAL COURT COMMITTED ABUS E OF DISCRETION WHEN IT IMPOSED A FIVE (5) YEAR SENTENCE AND DID NOT CONSIDER THE DEFENDANT FOR COMMUNITY CONTROL. {¶ 15} Under this assignment of error, Jones contends that the trial court abused its discretion in sentencing him to a five-year prison term. Specifically, Jones claims that the trial court erred in failing to consider the sentencing factors in R.C. 2929.12(E), which relate to whether Jones has a likelihood of committing future cr imes. He also claims that the trial court did not state what factors it c onsidered upon deciding to impose a maximum sentence and did not employ the statutory language in R.C. 2929.11 re garding the purposes of felony sentencing. {¶ 16} As a preliminary matter, we note that the trial court did not sentence Jones to a five-year prison term. Rather, the Judgment En try of Conviction and the sentencing hearing transcript establish that the trial court sentenced Jones to a three-year prison term. {¶ 17} In State v. Rodeffer , 2d Dist. Montgomery Nos. 25574, 25575, and 25576, 2013-Ohio-5759, this court adopted R.C. 2953.08(G)(2) as the appellate standard of review for felony sentences. Id . at ¶ 29. R.C. 2953.08(G)(2) states, in pertinent part, that: The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacat e the sentence and remand the matter to the sentencing court for resentencing. Th e appellate court’s st andard for review 7

 is not whether the sentencing court abus ed its discretion. The appellate court may take any action authorized by this di vision 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 s ection 2929.20 of the Revised Code, whichever, if an y, is relevant; (b) That the sentence is otherwise c ontrary to law. (Emphasis added.) {¶ 18} We also observed in Rodeffer that: “[T]he clear and convincing standard us ed by R.C. 2953.08(G)(2) is written in the negative. It does not say that the tria l judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that th e record does not support the court’s findings.” * * * “In other words, the rest riction is on the appe llate court, not the trial judge. This is an extremely deferential standard of review.” Id . at ¶ 31, quoting State v. Venes , 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.). {¶ 19} In this case, when sentencing Jones, th e trial court was not required to make any 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). These statutory provisions simply do not apply to the present case. {¶ 20} In addition, we do not find that Jones’s prison sentence is contrary to law. “ ‘[C]ontrary to law’ means that a sentencing decisi on manifestly ignores an issue or factor which a statute requires a court to consider.” (Citation omitted.) State v. Lofton , 2d Dist. Montgomery 8

 No. 19852, 2004-Ohio-169, ¶ 11. “[A] sentence is not contrary to law when the trial court imposes a sentence within the statutory range, after expressly stating that it had considered the purposes and principles of sentencing set fort h in R.C. 2929.11, as well as the factors in R.C. 2929.12.” Rodeffer , 2013-Ohio-5759, at ¶ 32, citing State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18. “The court is not required to make specific findings or to use the exact wording of the statute[s].” (Citation omitted.) State v. Wilson , 2d Dist. Montgomery No. 24978, 2012-Ohio-4756, ¶ 8. {¶ 21} A sentence is also not contrary to law if, during the sentencing hearing, a trial court fails to cite the purposes and principles of sentencing in R.C. 2929.11 or the sentencing factors of 2929.12, but does state in the final judgment entry that it had “ ‘considered the record, oral statements, any victim impact statement and presentence report prepared, as well as the principles and purposes of sentencing under Ohio Revised Code S ection 2929.11, and balanced the seriousness and recidivism factors [unde r] Ohio Revised Code Section 2929.12.’ ” State v. Parker , 193 Ohio App.3d 506, 2011-Ohio-1418, 952 N.E.2d 1159, ¶ 20 (2d Dist.), quoting State v. Miller , 2d Dist. Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43. {¶ 22} Here, Jones’s three-year prison senten ce falls within the statutory range for failure to comply with the order or signal of a po lice officer, which is a felony of the third degree.

See R.C. 2929.14(A)(3)(b). As a further matter, the tr ial court expressly stat ed in its Judgment Entry of Conviction that: The Court considered the record, oral statements of couns el, the defendant’s statement, the defendant’s prior criminal record, the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and has balanced the 9

 seriousness and recidivism factors unde r Ohio Revised Code Section 2929.12. Judgment Entry of Conviction/Warra nt for Removal (July 24, 2013), Clark County Court of Common Pleas Case No. 2013-CR-223, Docket No. 21, p. 1. Therefore, the record indicat es that the trial court cons idered R.C. 2929.11 and R.C. 2929.12 when sentencing Jones. For the foregoing reas ons we do not clearly and convincingly find that Jones’s prison sentence is contrary to law. {¶ 23} Given that Jones has framed his argume nt under the former abuse of discretion standard, we note that even unde r that standard, we find no erro r. “A trial court has broad discretion in sentencing a defendant and a reviewing court will not interfere with the sentence unless the trial court abused its discretion.” (Cita tions omitted.) State v. Bray , 2d Dist. Clark No. 2010 CA 14, 2011-Ohio-4660, ¶ 28. “A trial cour t abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of discretion includes a situation in which a trial court did not engage in a “ ‘sound reasoning process.’ ”
State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Co mmunity Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Based on the facts in the recor d, and the trial court’s consideration of the purposes and principles of sentencing in R. C. 2929.11 and the sentencing factors in 2929.12, we do not find that the trial court a bused its discretion in sentencing Jones to three years in prison. {¶ 24} Jones’s Second Assignment of Error is overruled.

Conclusion 10

 {¶ 25} Having overruled both assign ments of error presented by Jones, the judgment of the trial court is affirmed.

. . . . . . . . . . . . . FROELICH, P.J., and FAIN, J., concur, subject only to the discussion in regards to the concurring opinion in Rodeffer, 2013-Ohio-5759.

Copies mailed to: Lisa M. Fannin Charles W. Slicer, III Hon. Douglas M. Rastatter