[Cite as State v. Grey, 2016-Ohio-3249.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

CHAD R. GREY, 

 DEFENDANT-APPELLANT. 

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CASE NO. 15 CO 0011 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Columbiana County, Ohio 

Case No. 2014 CR 226 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Robert Herron 

Prosecutor 

Timothy J. McNicol 

Assistant Prosecutor 

105 South Market Street 

Lisbon, Ohio 44432 

For Defendant-Appellant Attorney Dominic A. Frank 

1717 Lisbon Street 

East Liverpool, Ohio 43920 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: May 31, 2016 
[Cite as State v. Grey, 2016-Ohio-3249.]

DONOFRIO, P.J. 

{¶1} Defendant-appellant, Chad Grey, appeals from a Columbiana County 

Common Pleas Court judgment convicting him of illegal use of a minor in nudity 

oriented materials or performance, importuning, and disseminating matter harmful to 

juveniles, following his guilty plea. 

{¶2} On June 26, 2014, a Columbiana County Grand Jury indicted appellant 

on one count of illegal use of a minor in nudity-oriented material or performance, a 

fifth-degree felony in violation of R.C. 2907.323(A)(3); one count of importuning, a 

fifth-degree felony in violation of R.C. 2907.07(D)(1); and one count of disseminating 

matter harmful to juveniles, a first-degree misdemeanor in violation of R.C. 

2907.31(A)(1). Appellant initially entered a not guilty plea. 

{¶3} Pursuant to a plea agreement with plaintiff-appellee, the State of Ohio, 

appellant later changed his plea to guilty to the charges in the indictment. In 

exchange, the state agreed to take no position on community control but if the court 

did impose community control, it would recommend a six-month term at Eastern Ohio 

Correctional Center and sex offender counseling. The plea agreement set out that 

the state would recommend a sentence of nine months for illegal use of a minor in 

nudity-oriented material or performance, nine months for importuning, and six months 

for disseminating matter harmful to juveniles, to be served concurrently. The plea 

agreement also stated that appellant would request community control sanctions 

and/or a lesser sentence. The trial court accepted appellant’s plea and set the matter 

for sentencing. 

{¶4} At the sentencing hearing, the trial court sentenced appellant to nine 

months for illegal use of a minor in nudity-oriented material or performance, nine 

months for importuning, and six months for disseminating matter harmful to juveniles, 

to be served concurrently. The court also designated appellant as a Tier I sex 

offender/child victim offender. 

{¶5} Appellant filed a timely notice of appeal on March 25, 2015. That same 

day, he filed a motion to stay the execution of his sentence with the trial court. The 

trial court denied appellant’s motion for a stay. Appellant then filed a motion for a 
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stay of execution with this court, which we granted pending this appeal. Appellant 

now raises two assignments of error. 

{¶6} Appellant’s first assignment of error states: 

 THE TRIAL COURT ERRED BY IMPOSING A SENTENCE 

THAT IS CONTRARY TO LAW WHEN IT SENTENCED APPELLANT 

TO A TERM GREATER THAN THE MINIMUM. 

{¶7} Appellant argues the trial court erred by sentencing him to a more-thanminimum sentence. 

{¶8} As to his sentence for illegal use of a minor in nudity-oriented material 

or performance, appellant first states there is a presumption that a prison sentence 

will not be imposed. He asserts that before the trial court could sentence him to a 

prison term for this offense, it had to make a determination that community control 

sanctions would not adequately fulfill the overriding purposes and principals of 

sentencing pursuant to R.C. 2929.13(B)(1)(c). Appellant contends the court failed to 

make a determination regarding his amenability to community control sanctions prior 

to imposing a prison term. On this basis, appellant argues his sentence for illegal 

use of a minor in nudity-oriented material or performance is contrary to law. 

{¶9} As to his sentence for importuning, appellant again asserts there is no 

presumption of prison. He contends the trial court proceeded on the assumption that 

prison was favored and failed to determine whether he was amenable to community 

control sanctions. Appellant argues that applying a presumption in favor of prison 

where no presumption exists renders a sentence contrary to law. 

{¶10} The Ohio Supreme Court has recently held that when reviewing a 

felony sentence, an appellate court must uphold the sentence unless the evidence 

clearly and convincingly does not support the trial court’s findings under the 

applicable sentencing statutes or the sentence is otherwise contrary to law. State v. 

Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 1. 

{¶11} Appellant was convicted of two fifth-degree felonies and one first-
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degree misdemeanor. The possible prison sentences for a fifth-degree felony are: 

six, seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). The 

maximum possible jail term for a first-degree misdemeanor is 180 days. R.C. 

2929.24(A)(1). The trial court sentenced appellant to nine months for each of the two 

felonies and six months for the misdemeanor. Therefore, each of the sentences is 

within the applicable statutory range. 

{¶12} Appellant claims the court erred in sentencing him to prison when there 

was no presumption of prison. At oral argument, he argued the court failed to follow 

the applicable sentencing statutes. 

{¶13} Generally, if an offender is convicted of a fifth-degree felony that is not 

an offense of violence or a qualifying assault offense, the court shall sentence the 

offender to a community control sanction of at least one year's duration. R.C. 

2929.13(B)(1)(a). 

{¶14} But pursuant to R.C. 2929.13(B)(1)(b): 

(b) The court has discretion to impose a prison term upon an 

offender who is convicted of or pleads guilty to a felony of the fourth or 

fifth degree that is not an offense of violence or that is a qualifying 

assault offense if any of the following apply: 

* * * 

(v) The offense is a sex offense that is a fourth or fifth degree 

felony violation of any provision of Chapter 2907. of the Revised Code. 

{¶15} Here appellant was convicted of two fifth-degree, sex-offense felonies 

in violation of R.C. 2907.323(A)(3) and R.C. 2907.07(D)(1). Therefore, it was within 

the trial court’s discretion to sentence him to a prison term on each of these offenses. 

Consequently, the fact that the court sentenced appellant to prison terms does not 

render his sentences contrary to law. On the contrary, prison terms were statutorily 

authorized given that appellant’s fifth-degree felonies were sex offenses in violation 

of R.C. Chapter 2907. 
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{¶16} The trial court recognized this at the sentencing hearing, stating: 

Let the record reflect that I did consider the fact that Mr. Grey is 

charged with low level fourth [sic.] and fifth degree felonies. There is a 

presumption for community control. However, that presumption is 

rebutted because he is charged and has pled guilty to certain sex 

offenses. 

(Tr. 30). These comments demonstrate that the court was aware that generally for a 

fifth-degree felony there is a presumption for community control but because this 

case involved sex offenses, that presumption was removed. 

{¶17} And yet another statutory section should be considered. Pursuant to 

the importuning statute under which appellant was convicted: 

A violation of division (B) or (D) of this section is a felony of the fifth 

degree on a first offense, and, notwithstanding division (B) of section 

2929.13 of the Revised Code , there is a presumption that a prison term 

shall be imposed as described in division (D) of section 2929.13 of the 

Revised Code. 

(Emphasis added); R.C. 2907.07(F)(3). Thus, for appellant’s importuning conviction 

there was a statutory presumption of a prison term. 

{¶18} Therefore, appellant’s prison sentences are not contrary to law. 

Accordingly, appellant’s first assignment of error is without merit. 

{¶19} Appellant’s second assignment of error states: 

 THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION 

WHEN IT SENTENCED APPELLANT TO A TERM GREATER THAN 

THE MINIMUM. 

{¶20} In this assignment of error, appellant argues that the trial court abused 

its discretion in sentencing him to a more-than-minimum sentence. He contends the 
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court failed to consider whether he was amenable to community control sanctions or 

whether community control sanctions would not demean the seriousness of the 

offenses or fail to protect the public. 

{¶21} The standard of review for felony sentencing no longer contains an 

abuse-of-discretion component. Marcum, 2016-Ohio-1002, at ¶ 10. Therefore, we 

will not consider whether the trial court abused its discretion in sentencing appellant 

to a more-than-minimum sentence. Instead, we will consider whether the evidence 

clearly and convincingly does not support the trial court’s findings under the 

applicable sentencing statutes. Id. at ¶ 1. 

{¶22} At the sentencing hearing, the trial court expressed its reasoning for 

imposing a prison sentence on appellant. It stated that appellant’s position as a 

substitute gym teacher led to some of the conduct involved here. (Tr. 30). It stated 

that it listened to victim A.A.’s statement wherein she stated she felt pressure to 

continue in this relationship. (Tr. 30). It pointed out that appellant, who was 26 years 

old at the time, sent photographs of his exposed private parts and of him touching 

himself to victim A.H., who was 11 years old at the time. (Tr. 30). And it noted that 

appellant solicited A.A. for a sexual relationship when she was 14 years old. (Tr. 30). 

Finally, the court told appellant that it did not think he was a bad person but that he 

made several horrible decisions that impacted, and continue to impact, the victims in 

this case. (Tr. 31). 

{¶23} Additionally, in the sentencing judgment entry, the court noted that it 

received a presentence investigation. It also stated that it listened to statements from 

counsel, A.H., A.H.’s grandmother, and three witnesses on appellant’s behalf. And it 

stated that it listened to appellant’s statement on his own behalf where he expressed 

his remorse. 

{¶24} The trial court demonstrated that it carefully considered many factors in 

sentencing appellant. The court considered appellant’s position as a substitute 

teacher, the age of the victims, and the impact his conduct had on them. The court 

also noted that appellant was not a bad person, but that he made several horrible 
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choices. The court also considered the presentence investigation, the statements 

made at sentencing, and appellant’s remorse. The court then imposed a sentence 

that was in the middle of the range of possible prison sentences and ordered the 

sentences to be served concurrently. There is no indication in the record that the 

evidence clearly and convincingly does not support the trial court’s findings under the 

applicable sentencing statutes. 

{¶25} Accordingly, appellant’s second assignment of error is without merit. 

{¶26} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.