[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 judgmen t of the Wood County Court of Common Pleas sentencing him to 22 months i n 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. 29 25.11(A), a fifth-degree felony. 1 {¶ 3} Priest pleaded guilty to the charge in the indictment. The tri al court withheld making a finding on Priest’s plea and placed him on in tervention 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 o n the petition, Priest stipulated to the violation. Consequently, the trial court acc epted his earlier guilty plea, found him guilty of aggravated possession of drugs, and termina ted his intervention in

lieu of conviction. {¶ 5} At Priest’s sentencing hearing, the trial court heard statement s from counsel and Priest and reviewed Priest’s lengthy criminal record. His record included, among other things, convictions of domestic violence (including one t hat 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 te rm 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 fe lony. The trial court sentenced Priest in this case and in case No. 2016CR0242 on Sep tember 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 consecut ive 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 d anger Priest poses to the public “considering his past violent behavior.” The court furt her found that Priest committed the offense while on community control through the Bo wling 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 not ed that it had considered the principles and purposes of sentencing in R.C. 29 29.11 and the seriousness and recidivism factors in R.C. 2929.12. It specifically mentio ned the factors in R.C. 2929.12(B)(7) and (D)(1), (2), (3), and (4). Regarding the con secutive sentences, the sentencing entry reiterated that (1) consecutive sentences were appropriate to protect the public from future crime by Priest and necessary to punish Prie st, (2) consecutive sentences were not disproportionate to the seriousness of Pries t’s conduct and the danger he presents to the public, (3) Priest committed the offense whi le under community control sanctions, and (4) Priest’s criminal history showed that consec utive 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 s entence 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 faile d to provide any explanation for its findings under R.C. 2929.14(C)(4); (2) Prie st 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 n ot show that consecutive sentences were necessary. The state responds that the trial co urt was not required to give its reasons for making its findings under R.C. 2929.14(C)(4) an d 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 mod ify 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 fi ndings under division (B) or (D) of section 2929.13, division (B)(2)(e ) or (C)(4) of5. 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. {¶ 10} A sentence is not clearly and convincingly contrary to law wher e the trial court sentences the defendant within the statutorily permissibl e 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 t he 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. No tably, “[t]he appellate court’s standard for review is not whether the senten cing court abused its discretion.” R.C. 2953.08(G)(2); Marcum at ¶ 22-23. {¶ 12} Before imposing consecutive sentences, a trial court is require d to make three findings: (1) consecutive sentences are “necessary to pr otect the public from future crime or to punish the offender * * *;” (2) imposition of conse cutive sentences is not6. “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) permi t 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 co mmitted at least two offenses as part of a course of conduct and caused harm “so gre at or unusual that no single prison term for any of the offenses * * * adequately ref lects the seriousness of the offender’s conduct;” or (c) the defendant’s criminal history sh ows 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 ent ry. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The t rial 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 impo sition 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 tr ial 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 crim e or to punish the offender in this case, and also it’s not disproporti onate to the offender’s conduct, that is, selling of drugs, heroin in this c ase, and to the danger the offender poses to the public considering his past vi olent

behavior. Further, the crimes were committed while on community control from the Bowling Green Municipal Court. And his criminal histo ry 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 t hat subsection, a defendant being under community control sanctions only justifie s 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 ar e not included in R.C. 2929.14(C)(4)(a). Thus, a defendant committing an offense whil e on community control in a misdemeanor case is insufficient to support a finding unde r 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 “cri minal history shows that8. consecutive terms are needed to protect the public,” which is s ufficient to support the imposition of consecutive sentences. We conclude, therefore, t hat the imposition of consecutive sentences was not clearly and convincingly contrary to law. {¶ 16} Moreover, Priest has not shown that the record clearly and conv incingly fails to support consecutive sentences. Although Priest conten ds that his criminal history of misdemeanor convictions is “borderline limited compared to o thers who come through the court,” the presentence investigation report shows that Pri est has a criminal record that spans 30 years and includes one felony conviction, 14 traf fic convictions, and 29

misdemeanor convictions. The trial court considered Priest’s d omestic 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 convi ctions of disorderly conduct, criminal damaging, an underage alcohol offense, resisting arres t, domestic violence, possession of drug paraphernalia, possession of marijuana, pass ing bad checks, disorderly conduct, criminal trespass, OVI, assault, theft, permitting dru g abuse, and possessing a drug abuse instrument. Additionally, Priest’s continued recidi vism shows that he has not responded well to prior sanctions, many of which involved commu nity control. This is sufficient to support a finding under R.C. 2929.14(C)(4)(c) tha t Priest’s “history of

criminal conduct demonstrates that consecutive sentences are ne cessary 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 supp orted by defendant’s 30-year criminal history that included offenses of violence and offenses similar to the one9. of which he was convicted, defendant’s failure to respond favor ably 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 tria l court properly imposed consecutive sentences. Priest’s first assignment of error is n ot well-taken. B. The trial court properly considered R.C. 2929.11 and 2929.1 2. {¶ 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 “t o protect the public from future crime by the offender and others, to pun ish 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 purpose s, the sentencing court must consider “the need for incapacitating the offender, deterr ing the offender and others from future crime, rehabilitating the offender, and making rest itution to the victim of the offense, the public, or both.” Id. The sentence imposed shall be reasonably calculated to10. achieve the overriding purposes, “commensurate with and not dem eaning to the seriousness of the offender’s conduct and its impact upon the v ictim, and consistent with sentences imposed for similar crimes committed by similar offen ders.” R.C. 2929.11(B). Although the statute requires the trial court to impose “the mi nimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources,” this does not mean that t he 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 d iscretion 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 sen tencing in R.C. 2929.11. The statute lists general factors that the trial court must con sider relating to the seriousness of the offender’s conduct, the likelihood of recidi vism, 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 thos e purposes and principles of sentencing.” R.C. 2929.12(A). “A sentencing court has broad d iscretion to determine the relative weight to assign the sentencing factors in R.C. 2929.1 2.” 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 em phasis to any factor; it is11. 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 2 929.12 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. 2 929.11 or 2929.12 at the sentencing hearing, it is apparent from the tran script that the court considered the statutes. In explaining its rationale for Pries t’s sentence, the court said: So starting with the very beginning the defendant has two char ges here, allowed to go on intervention, with a long history of dru g abuse, alcohol abuse, and also had related violent indicators includin g 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 poss ession. These are offenses of an individual who is selling drugs and providin g them to

others.12. {¶ 23} Additionally, in the sentencing entry, the court expressly stat ed 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 offens e 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 un der release from confinement before trial or sentencing; [or] was u nder 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 sanction s 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 ack nowledge that the offender has demonstrated that pattern, or the offender ref uses 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 requir ed to give any particular weight to any particular factors. Burnette , 6th Dist. Lucas Nos. L-16-1272 and13. 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 stat utory 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, th e trial court took into account Priest’s lengthy criminal record, failed intervention i n lieu of conviction, violent crimes, history of substance abuse, and continued recidivism. And although Priest committed the offense while on community control for a misdemea nor, rather than a felony as required by R.C. 2929.12(D)(1), a trial court is perm itted to consider “ any other factors that are relevant * * *” when crafting a sentence. (Em phasis added.) R.C. 2929.12(A). Here, the trial court found the fact that Priest c ontinued 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 point s to nothing else (other than incorrectly stating that this is Priest’s first felony convicti on) to support his argument that his 11-month prison sentence is not supported by the record. T hus, 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 senten ce 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 pur suant 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 Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.