[Cite as State v. Clinchscales , 2021-Ohio-100.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 8-20-15

v. DONOVAN R. CLINCHSCALES, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR 19 03 0082 Judgment Affirmed Date of Decision: January 19, 2021

APPEARANCES: 

### William T. Cramer for Appellant 

### Sarah J. Warren for AppelleeCase No. 8-20-15

-2- ZIMMERMAN, J. {¶1} Defendant-appellant, Donovan R. Clinchscales (“Clinchscales”), appeals the April 27, 2020 judgment entry of sentence of the Lo gan County Court of Common Pleas Court, General Division. We affirm. {¶2} On March 12, 2019, the Logan County Grand Jury indicted Clinchscales on three criminal charges: Count One of Attempted Rape in violation of R.C. 2923.02(A), 2923.02(E)(1), and 2907.02(A)(2), (B), a se cond-degree felony; Count Two of Gross Sexual Imposition in violation of R. C. 2907.05(A)(1), (C)(1), a fourth-degree felony; and Count Three of Kidnapping i n violation of R.C. 2905.01(B)(2), (C)(1), a second-degree felony. (Doc. No. 2). Clinchscales appeared for arraignment on May 17, 2019 and entered pleas of n ot guilty. (Doc. No. 16). {¶3} On April 1, 2020, Clinchscales entered his guilty plea in the t rial court under a negotiated plea agreement, which included a joint sente ncing

recommendation. 1 (Doc. Nos. 98, 131); (Apr. 27, 2020 Tr. at 3-4). Specificall y, in exchange for his guilty plea to a bill of information charging Clinchscales with one count of Attempted Felonious Assault in violation of R.C. 2923. 02 and R.C. 2903.11(A)(1), a third-degree felony, the State agreed to dismi ss the three-count

1 The State and Clinchscales jointly recommended community contr ol sanctions with a condition being treatment at River City Correctional Center, a community based correctional facility where Clinchscales could receive sex-offender programming. (Doc. Nos. 100, 131); (Apr. 27, 2020 Tr. at 3-4).Case No. 8-20-15

-3- indictment. (Doc. Nos. 100, 130); (Apr. 1, 2020 Tr. at 5). Th e trial court accepted Clinchscales’s guilty plea, found him guilty, dismissed the ind ictment, and ordered a presentence investigation (“PSI”). ( Id .); ( Id . at 22-26). {¶4} On April 27, 2020, the trial court sentenced Clinchscales to 30 months in prison. 2 (Doc. No. 107). On May 11, 2020, Clinchscales filed his noti ce of appeal and raises one assignment of error for our review. (Doc. No. 1 18). Assignment of Error By clear and convincing evidence, the record does not support t he trial court’s decision to reject a joint recommendation of community control in favor of a prison term. {¶5} In his assignment of error, Clinchscales argues that the trial court erred by imposing a prison term, rather than, the joint sentencing re commendation. In particular, he argues that the record does not support the tria l court’s sentence. Standard of Review {¶6} Under R.C. 2953.08(G)(2), an appellate court will reverse a sen tence “only if it determines by clear and convincing evidence that th e record does not support the trial court’s findings under relevant statutes or t hat the sentence is otherwise contrary to law.” State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “‘which will produc e in the mind of the

2 The trial court ordered that Clinchscales receive 201 days’ ja il-time credit, pay $367 in restitution, and that the costs of prosecution under R.C. 2929.18(A) and 2947.23 and court costs be waived. (Doc. No. 107); (Apr. 27, 2020 Tr. at 8).Case No. 8-20-15

-4- trier of facts a firm belief or conviction as to the facts soug ht to be established.’” Id. at ¶ 22, quoting Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph three of the syllabus. Analysis {¶7} “‘[T]rial courts have full discretion to impose any sentence wi thin the statutory range.’” State v. Smith , 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 10, quoting State v. Noble , 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing State v. Saldana , 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. In this case, as a third-degree felony, Attempted Felonious Assaul t, carries a nonmandatory sanction of 9-months to 36-months imprisonment. R.C. 2923.02; R.C. 2903.11(A)(1); 2929.13(C); 2929.14(A)(3)(b). B ecause the trial court sentenced Clinchscales to 30 months in prison, the trial court’s sentence falls within the statutory range. “[A] sentence imposed within the statutory ra nge is ‘presumptively valid’ if the [trial] court considered applicable sentencing fa ctors.” State v. Maggette , 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31, quoting State v.

Collier , 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15. {¶8} “R.C. 2929.11 provides, in pertinent part, that the ‘overriding purposes of felony sentencing are to protect the public from future crim e and to punish the

offender.’” Smith at ¶ 10, quoting R.C. 2929.11(A). “In advancing these purpose s, sentencing courts are instructed to ‘consider the need for inca pacitating the offender,Case No. 8-20-15

-5- deterring the offender and others from future crime, rehabilita ting the offender, and making restitution to the victim of the offense, the public, or both.’” Id. , quoting R.C. 2929.11(A). “Meanwhile, R.C. 2929.11(B) states that felon y sentences must be ‘commensurate with and not demeaning to the seriousness of t he offender’s conduct and its impact upon the victim’ and also be consistent with sentences imposed in similar cases.” Id. , quoting R.C. 2929.11(B). “In accordance with these principles, the trial court must consider the factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s conduct and the l ikelihood of the

offender’s recidivism.” Id. , citing R.C. 2929.12(A). “‘A sentencing court has broad discretion to determine the relative weight to assign the sente ncing factors in R.C.

2929.12.” Id. at ¶ 15, quoting State v. Brimacombe , 6th Dist. Lucas No. L-10-1179, 2011-Ohio-5032, ¶ 18, citing State v. Arnett , 88 Ohio St.3d 208, 215 (2000). {¶9} “Although the trial court must consider the purposes and princi ples of felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C. 2929.12, the sentencing court is not required to ‘state on the record that it considered the statutory criteria or discuss[ed] them.’” Maggette at ¶ 32, quoting State v.

Polick , 101 Ohio App.3d 428, 431 (4th Dist.1995). “A trial court’s s tatement that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under the sentencing statutes.” Id. , citing State v. Abrams , 8th Dist.Case No. 8-20-15

-6- Cuyahoga No. 103786, 2016-Ohio-4570, ¶ 14, citing State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. {¶10} At Clinchscales’s sentencing hearing and in its sentencing entr y, the trial court considered the R.C. 2929.11 and 2929.12 factors. ( Apr. 27 Tr. at 5-7); (Doc. Nos. 107, 131). Specifically, the trial court considered “the purposes and principles of sentencing set forth in R.C. 2929.11,” and in exe rcising its discretion, the trial court considered those factors “relating to the likel ihood of the offender’s recidivism” provided in division (D) as required by R.C. 2929.1 2(A) when the court considered the need to deter or incapacitate Clinchscales. R.C . 2929.12(A). ( See Apr. 27, 2020 Tr. at 5-7); (Doc. Nos. 107, 131). In assessing whether Clinchscales was likely to commit future crimes, the trial court considered Clinchscales’s prior juvenile delinquency record and determined that he had “a histo ry of criminal conduct that includes a prior violent sexual offense”. (Apr. 2 7, 2020 Tr. at 7); (Doc. No. 131). See R.C. 2929.12(D)(2). Moreover, the trial court in its considera tion of the PSI, determined that Clinchscales “does not show any remors e” as a result of his claim that “he was set up by the victim”. ( Id. ); ( Id. ). See R.C. 2929.12(D)(5). {¶11} Further, the trial court also considered that Clinchscales had a bond violation during the pendency of his case, and that the victim in this case suffered serious physical harm as a result of the offense, “including bu rns and disfigurementCase No. 8-20-15

-7- to her person.” (Apr. 27, 2020 Tr. at 6-7); (Doc. No. 131). See R.C. 2929.12(A), (B)(2). {¶12} The trial court did not find any of R.C. 2929.12(C) factors app lied indicating that Clinchscale’s conduct was less serious. (Apr. 27, 2020 Tr. at 6); (Doc. No. 131). Moreover, the trial court did not find any fac tors in R.C. 2929.12(E) indicating that Clinchscales is not likely to commit future cri mes applied. {¶13} After weighing the seriousness and recidivism factors, consider ing the victim impact statement, and the PSI, the trial court ultimatel y determined that Clinchscales’s joint sentencing recommendation was contrary to the overriding purposes of felony sentencing, and that a 30-month prison term was appropriate under the facts presented. ( See Apr. 27, 2020 Tr. at 7); (Doc. No. 131). See also R.C. 2929.11(B). {¶14} In our review of the record, we conclude that the trial court’s findings are clearly and convincingly supported by the record. Thus, it was within the trial court’s discretion to impose a prison sentence as “the most eff ective way to comply with the purposes and principles of sentencing set forth in sec tion 2929.11 of the Revised Code.” R.C. 2929.12(A). Accordingly, based on the for egoing, Clinchscales’s sentence is not clearly and convincingly contrar y to law because it is within the permissible statutory range, and the trial court pro perly considered theCase No. 8-20-15

-8- criteria set forth in R.C. 2929.11 and 2929.12. See Maggette , 2016-Ohio-5554, at ¶

36. {¶15} For these reasons, Clinchscales’s sole assignment of error is o verruled. {¶16} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed WILLAMOWSKI, P.J. and SHAW, J., concur. /jlr