[Cite as State v. Priest, 2019-Ohio-4901.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 WOOD COUNTY 

State of Ohio Court of Appeals No. WD-18-071 

 

 Appellee Trial Court No. 2016CR0597 

v. 

Brian E. Priest DECISION AND JUDGMENT

Appellant Decided: November 27, 2019 

* * * * * 

 Paul A. Dobson, Wood County Prosecuting Attorney, and 

 David T. Harold, Assistant Prosecuting Attorney, for appellee.

 W. Alex Smith, for appellant. 

* * * * * 

 MAYLE, P.J.

{¶ 1} Appellant, Brian Priest, appeals the September 10, 2018 judgment of the 

Wood County Court of Common Pleas sentencing him to 22 months in prison. For the 

following reasons, we affirm. 

 
2.

I. Background and Facts 

{¶ 2} On December 8, 2016, Priest was indicted in case No. 2016CR0597 on one 

count of aggravated possession of drugs in violation of R.C. 2925.11(A), a fifth-degree 

felony.1

{¶ 3} Priest pleaded guilty to the charge in the indictment. The trial court 

withheld making a finding on Priest’s plea and placed him on intervention in lieu of 

conviction for a period of 18 months. 

{¶ 4} Nearly a year after Priest entered his plea, the state filed a petition for an 

intervention in lieu of conviction violation. At the hearing on the petition, Priest 

stipulated to the violation. Consequently, the trial court accepted his earlier guilty plea, 

found him guilty of aggravated possession of drugs, and terminated his intervention in 

lieu of conviction. 

{¶ 5} At Priest’s sentencing hearing, the trial court heard statements from counsel 

and Priest and reviewed Priest’s lengthy criminal record. His record included, among 

other things, convictions of domestic violence (including one that was a felony), assault, 

disorderly conduct, and drug charges. After reviewing Priest’s record, the trial court 

sentenced him to 11 months in prison. It ordered the prison term to be served 

 

1

 In May 2016, Priest was indicted in case No. 2016CR0242 on one count of trafficking 

in heroin in violation of R.C. 2925.03(A)(1), a fifth-degree felony. The trial court 

sentenced Priest in this case and in case No. 2016CR0242 on September 7, 2018. Priest 

did not properly appeal the trial court’s sentence in case No. 2016CR0242, however, so 

that case is not before us. 
3.

consecutively to the 11-month prison term it imposed in case No. 2016CR0242 for an 

aggregate sentence of 22 months. The court found that consecutive sentences were 

necessary to protect the public from future crime or to punish Priest and were not 

disproportionate to Priest’s conduct of selling drugs and the danger Priest poses to the 

public “considering his past violent behavior.” The court further found that Priest 

committed the offense while on community control through the Bowling Green 

Municipal Court and that Priest’s criminal history showed that consecutive sentences 

were needed to protect the public. 

{¶ 6} In its September 10, 2018 sentencing entry, the trial court noted that it had 

considered the principles and purposes of sentencing in R.C. 2929.11 and the seriousness 

and recidivism factors in R.C. 2929.12. It specifically mentioned the factors in R.C. 

2929.12(B)(7) and (D)(1), (2), (3), and (4). Regarding the consecutive sentences, the 

sentencing entry reiterated that (1) consecutive sentences were appropriate to protect the 

public from future crime by Priest and necessary to punish Priest, (2) consecutive 

sentences were not disproportionate to the seriousness of Priest’s conduct and the danger 

he presents to the public, (3) Priest committed the offense while under community control 

sanctions, and (4) Priest’s criminal history showed that consecutive sentences were 

necessary to protect the public. 

 
4.

{¶ 7} Priest now appeals, raising two assignments of error: 

 I. The Trial Court abused its discretion when it imposed a 

consecutive prison sentence in violation of RC 2929.14(C)(4). 

 II. The Trial Court abused its discretion when it imposed a sentence 

without considering the sentencing factors under RC 2929.11 and 2929.12. 

II. Law and Analysis 

A. The trial court properly imposed consecutive sentences. 

{¶ 8} In his first assignment of error, Priest argues that the trial court improperly 

imposed consecutive sentences because (1) the trial court failed to provide any 

explanation for its findings under R.C. 2929.14(C)(4); (2) Priest committed the offense 

while under community control sanctions for a misdemeanor, not a felony as required by 

R.C. 2929.14(C)(4)(a); and (3) Priest’s criminal history does not show that consecutive 

sentences were necessary. The state responds that the trial court was not required to give 

its reasons for making its findings under R.C. 2929.14(C)(4) and that the sentencing entry 

included all of the necessary findings. 

{¶ 9} We review sentencing challenges under R.C. 2953.08(G)(2). The statute 

allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate 

the sentence and remand the matter for resentencing only 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 
5.

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. 

{¶ 10} A sentence is not clearly and convincingly contrary to law where the trial 

court sentences the defendant within the statutorily permissible range, properly applies 

postrelease control, and considers the principles and purposes of sentencing in R.C. 

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. State v. Kalish, 120 

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18; see also State v. Tammerine, 6th 

Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15-16 (recognizing that, although 

sentences are reviewed pursuant to R.C. 2953.08 and not under the abuse of discretion 

standard announced in Kalish, an appellate court can still use Kalish to guide its 

determination of whether a sentence is clearly and convincingly contrary to law). 

{¶ 11} If the appellate court finds that a sentence is not clearly and convincingly 

contrary to law, it may vacate or modify the sentence “only if the appellate court finds by 

clear and convincing evidence that the record does not support the sentence.” State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. Notably, “[t]he 

appellate court’s standard for review is not whether the sentencing court abused its 

discretion.” R.C. 2953.08(G)(2); Marcum at ¶ 22-23. 

{¶ 12} Before imposing consecutive sentences, a trial court is required to make 

three findings: (1) consecutive sentences are “necessary to protect the public from future 

crime or to punish the offender * * *;” (2) imposition of consecutive sentences is not 
6.

“disproportionate to the seriousness of the offender’s conduct and to the danger the 

offender poses to the public * * *;” and (3) one of the factors in R.C. 2929.14(C)(4)(a) to 

(c) applies. R.C. 2929.14(C)(4). Subsections (a) to (c) permit the trial court to impose 

consecutive sentences if: (a) the defendant committed at least one of the offenses while 

awaiting trial or sentencing, under community control sanctions imposed under R.C. 

2929.16 to .18, or on postrelease control; (b) the defendant committed at least two 

offenses as part of a course of conduct and caused harm “so great or unusual that no 

single prison term for any of the offenses * * * adequately reflects the seriousness of the 

offender’s conduct;” or (c) the defendant’s criminal history shows that consecutive 

sentences are necessary to protect the public from future crime by the defendant. 

{¶ 13} A sentencing court must make its findings under R.C. 2929.14(C)(4) at the 

sentencing hearing and incorporate them into the sentencing entry. State v. Bonnell, 140 

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The trial court is not required 

to state the reasons behind its findings, however. Id. Thus, the trial court’s “mere 

regurgitation” of the statute is sufficient to support the imposition of consecutive 

sentences. State v. Braswell, 6th Dist. Lucas No. L-16-1197, 2018-Ohio-3208, ¶ 40, 

citing State v. Ault, 6th Dist. Ottawa No. OT-13-037, 2015-Ohio-556, ¶ 12. 

{¶ 14} The transcript of Priest’s sentencing hearing shows that the trial court made 

the findings required by R.C. 2929.14(C)(4): 

 The Court is going to order that the eleven months in 2016-CR-0597 

be served consecutively to the case in 2016-CR-0242. 
7.

 Because it is necessary to protect the public from future crime or to 

punish the offender in this case, and also it’s not disproportionate to the 

offender’s conduct, that is, selling of drugs, heroin in this case, and to the 

danger the offender poses to the public considering his past violent 

behavior. 

 Further, the crimes were committed while on community control 

from the Bowling Green Municipal Court. And his criminal history shows 

that consecutive terms are needed to protect the public. 

The court also included its R.C. 2929.14(C)(4) findings in the sentencing entry. This is 

all that was required for the trial court to impose consecutive sentences. See Bonnell at 

syllabus; State v. Nierman, 6th Dist. Ottawa No. OT-15-020, 2017-Ohio-672, ¶ 14-15. 

{¶ 15} Priest also argues—and we agree—that the trial court improperly relied on 

R.C. 2929.14(C)(4)(a) to impose consecutive sentences. Under that subsection, a 

defendant being under community control sanctions only justifies consecutive sentences 

if the sanctions were imposed under R.C. 2929.16 to .18, which all relate to community 

control sanctions imposed for felony convictions. Community control sanctions for 

misdemeanor convictions are found in R.C. 2929.26 to .28 and are not included in R.C. 

2929.14(C)(4)(a). Thus, a defendant committing an offense while on community control 

in a misdemeanor case is insufficient to support a finding under R.C. 2929.14(C)(4)(a). 

State v. Cole, 3d Dist. Logan No. 8-18-26, 2018-Ohio-4646, ¶ 16. Regardless, the trial 

court also found under R.C. 2929.14(C)(4)(c) that Priest’s “criminal history shows that 
8.

consecutive terms are needed to protect the public,” which is sufficient to support the 

imposition of consecutive sentences. We conclude, therefore, that the imposition of 

consecutive sentences was not clearly and convincingly contrary to law. 

{¶ 16} Moreover, Priest has not shown that the record clearly and convincingly 

fails to support consecutive sentences. Although Priest contends that his criminal history 

of misdemeanor convictions is “borderline limited compared to others who come through 

the court,” the presentence investigation report shows that Priest has a criminal record 

that spans 30 years and includes one felony conviction, 14 traffic convictions, and 29 

misdemeanor convictions. The trial court considered Priest’s domestic violence and 

assault convictions to be “violent indicators.” The court also noted that Priest had “a long 

history all related to substance abuse issues,” including convictions of disorderly conduct, 

criminal damaging, an underage alcohol offense, resisting arrest, domestic violence, 

possession of drug paraphernalia, possession of marijuana, passing bad checks, disorderly 

conduct, criminal trespass, OVI, assault, theft, permitting drug abuse, and possessing a 

drug abuse instrument. Additionally, Priest’s continued recidivism shows that he has not 

responded well to prior sanctions, many of which involved community control. This is 

sufficient to support a finding under R.C. 2929.14(C)(4)(c) that Priest’s “history of 

criminal conduct demonstrates that consecutive sentences are necessary to protect the 

public from future crime by the offender.” See, e.g., State v. Chaney, 2d Dist. Clark No. 

2015-CA-116, 2016-Ohio-5437 (R.C. 2929.14(C)(4)(c) finding supported by defendant’s 

30-year criminal history that included offenses of violence and offenses similar to the one 
9.

of which he was convicted, defendant’s failure to respond favorably to previous 

sanctions, and defendant’s lack of remorse). 

{¶ 17} Because the trial court made the findings required by R.C. 2929.14(C)(4) 

and Priest has failed to show by clear and convincing evidence that the trial court’s 

findings are not supported by the record, we find that the trial court properly imposed 

consecutive sentences. Priest’s first assignment of error is not well-taken. 

B. The trial court properly considered R.C. 2929.11 and 2929.12. 

{¶ 18} In his second assignment of error, Priest argues that there is no indication 

the trial court considered the factors in R.C. 2929.11 and 2929.12 on the record and the 

court abused its discretion by imposing a nonminimum sanction. The state responds that 

we have upheld sentences based on sentencing entries that were very similar to the one in 

this case and the trial court’s consideration of the factors in R.C. 2929.11 and 2929.12 is 

presumed. 

{¶ 19} Under R.C. 2929.11(A), the purposes of felony sentencing are “to protect 

the public from future crime by the offender and others, to punish the offender, and to 

promote the effective rehabilitation of the offender using the minimum sanctions that the 

court determines accomplish those purposes without imposing an unnecessary burden on 

state or local government resources.” To achieve these purposes, the sentencing court 

must consider “the need for incapacitating the offender, deterring the offender and others 

from future crime, rehabilitating the offender, and making restitution to the victim of the 

offense, the public, or both.” Id. The sentence imposed shall be reasonably calculated to 
10. 

achieve the overriding purposes, “commensurate with and not demeaning to the 

seriousness of the offender’s conduct and its impact upon the victim, and consistent with 

sentences imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B). 

Although the statute requires the trial court to impose “the minimum sanctions that the 

court determines accomplish those purposes without imposing an unnecessary burden on 

state or local government resources,” this does not mean that the court must impose the 

statutory minimum sentence. State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-

Ohio-434, ¶ 18. To the contrary, “the trial court ha[s] full discretion to impose any 

sentence within the authorized statutory range * * *.” State v. Connors, 2d Dist. 

Montgomery No. 26721, 2016-Ohio-3195, ¶ 6. 

{¶ 20} Under R.C. 2929.12, the trial court has discretion to determine the most 

effective way to comply with the principles and purposes of sentencing in R.C. 2929.11. 

The statute lists general factors that the trial court must consider relating to the 

seriousness of the offender’s conduct, the likelihood of recidivism, and, if applicable, the 

offender’s service in the U.S. armed forces. The statute also permits the court to 

“consider any other factors that are relevant to achieving those purposes and principles of 

sentencing.” R.C. 2929.12(A). “A sentencing court has broad discretion to determine the 

relative weight to assign the sentencing factors in R.C. 2929.12.” State v. Brimacombe, 

195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 18 (6th Dist.). Further, the 

trial court is not required to give any particular weight or emphasis to any factor; it is 
11. 

merely required to consider the statutory factors. State v. Burnette, 6th Dist. Lucas Nos. 

L-16-1272 and L-16-1273, 2017-Ohio-8424, ¶ 36. 

{¶ 21} It is well-recognized that where the record is silent, there is a presumption 

that the trial court gave proper consideration to R.C. 2929.11 and 2929.12. State v. 

Raypole, 6th Dist. Sandusky No. S-18-045, 2019-Ohio-3019, ¶ 13. It is up to the 

defendant to rebut this presumption. Id. “Thus, the issue before us is whether the record 

demonstrates that the trial court considered R.C. 2929.11 and 2929.12 in imposing its 

sentence, not whether the trial court expressly indicated that it did so.” State v. Sims, 6th 

Dist. Sandusky No. S-13-037, 2014-Ohio-3515, ¶ 10. 

{¶ 22} Here, although the trial court did not specifically cite R.C. 2929.11 or 

2929.12 at the sentencing hearing, it is apparent from the transcript that the court 

considered the statutes. In explaining its rationale for Priest’s sentence, the court said: 

 So starting with the very beginning the defendant has two charges 

here, allowed to go on intervention, with a long history of drug abuse, 

alcohol abuse, and also had related violent indicators including domestic 

violence and assault. We let him go do intervention in lieu. He goes 

through intervention in lieu. He does what he minimally has to do to 

complete it. And then he’s terminated from it. Ultimately he’s found 

guilty of the two offenses. The two offenses are not just possession. These 

are offenses of an individual who is selling drugs and providing them to 

others. 
12. 

{¶ 23} Additionally, in the sentencing entry, the court expressly stated that it 

considered the factors in R.C. 2929.11 and 2929.12 and further explained its reasoning 

behind the sentence. It found that Priest committed the offense for hire or as part of an 

organized criminal activity, which is the “more serious” factor in R.C. 2929.12(B)(7). It 

also found that the recidivism factors in R.C. 2929.12(D)(1) to (4) applied to Priest. 

Those subsections provide, in pertinent part: 

 (1) At the time of committing the offense, the offender was under 

release from confinement before trial or sentencing; [or] was under a 

sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the 

Revised Code * * *.

 (2) The offender * * * has a history of criminal convictions. 

 (3) The offender * * * has not responded favorably to sanctions 

previously imposed for criminal convictions. 

 (4) The offender has demonstrated a pattern of drug or alcohol abuse 

that is related to the offense, and the offender refuses to acknowledge that 

the offender has demonstrated that pattern, or the offender refuses treatment 

for the drug or alcohol abuse. 

R.C. 2929.12(D). 

{¶ 24} Essentially, Priest takes issue with the weight the trial court gave to 

 certain statutory factors. But the trial court was not required to give any particular 

weight to any particular factors. Burnette, 6th Dist. Lucas Nos. L-16-1272 and 
13. 

L-16-1273, 2017-Ohio-8424, at ¶ 36. And Priest does not point to any evidence in the 

record showing that the trial court failed to consider the statutory factors as required. 

Because the court considered R.C. 2929.11 and 2929.12, we find that Priest’s sentence is 

not clearly and convincingly contrary to law. 

{¶ 25} Moreover, Priest has not shown that his sentence is clearly and

convincingly unsupported by the record. As discussed above, the trial court took into 

account Priest’s lengthy criminal record, failed intervention in lieu of conviction, violent 

crimes, history of substance abuse, and continued recidivism. And although Priest 

committed the offense while on community control for a misdemeanor, rather than a 

felony as required by R.C. 2929.12(D)(1), a trial court is permitted to consider “any other 

factors that are relevant * * *” when crafting a sentence. (Emphasis added.) R.C. 

2929.12(A). Here, the trial court found the fact that Priest continued to commit crimes 

while on community control for a misdemeanor sentence relevant to its disposition of 

Priest’s felony case. It was permitted to do so. Priest points to nothing else (other than 

incorrectly stating that this is Priest’s first felony conviction) to support his argument that 

his 11-month prison sentence is not supported by the record. Thus, we conclude that 

Priest’s sentence was not clearly and convincingly unsupported by the record. 

{¶ 26} Because the trial court considered R.C. 2929.11 and 2929.12 and Priest has 

failed to show by clear and convincing evidence that his sentence is not supported by the 

record, we find that the trial court properly sentenced Priest. Accordingly, Priest’s 

second assignment of error is not well-taken. 
14. 

III. Conclusion 

{¶ 27} Based on the foregoing, the September 10, 2018 judgment of the Wood 

County Court of Common Pleas is affirmed. Priest is ordered to pay the costs of this 

appeal pursuant to App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Christine E. Mayle, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.