[Cite as State v. Moore, 2022-Ohio-947.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellant, : 

 No. 110517 

 v. : 

 

AMBER NICOLE MOORE, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: March 24, 2022 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case Nos. CR-19-643666-A and CR-19-643726-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Connor Davin, Assistant Prosecuting 

Attorney, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Francis Cavallo, Assistant Public Defender, for appellant. 
LISA B. FORBES, J.: 

Appellant, Amber Nicole Moore (“Moore”) appeals the trial court’s 

order sentencing her to 12 months in prison. After reviewing the facts of the case 

and pertinent law, we affirm. 

I. Facts and Procedural History 

On December 3, 2019, Moore pled guilty to attempted prohibition 

against altering substance to increase concentration, a misdemeanor of the fourth 

degree in violation of R.C. 2923.02 and 3719.161, and theft, a felony of the fifth 

degree in violation of R.C. 2913.02(A)(1). 

While out on bond and awaiting her sentencing hearing, Moore 

absconded. A capias was issued for her arrest on December 30, 2019. Moore was 

taken into custody following a traffic stop on April 16, 2021. 

A sentencing hearing was held on April 22, 2021. At the hearing, 

Moore and her attorney addressed the court. According to Moore, between the time 

she absconded and her eventual arrest she began living a sober lifestyle, attained 

employment, was eligible for a promotion, and had developed a relationship with 

her child. Moore’s attorney notified the court that Moore “recognizes that [it] was 

poor judgment” not to report for sentencing originally, but that she believed Moore 

“was afraid of * * * going to jail [for] these cases.” Further, Moore’s attorney 

highlighted the fact that Moore had obtained employment and wished to be able to 

continue working and to pay restitution to the victims of the theft. After hearing 

these statements, the trial court sentenced Moore to 60 days in jail for the attempted 
prohibition against altering substance conviction and 12 months in prison for the 

theft conviction. Both sentences were ordered to be served concurrently for a total 

term of 12 months in prison. It is from this sentence that Moore appeals. 

II. Law and Analysis 

A. Maximum Sentences 

In her first assignment of error, Moore argues that the “trial court 

erred when it imposed the maximum sentence without support in the record for the 

requisite statutory findings under R.C. 2929.11, 2929.12 and 2929.14.” We disagree. 

Our review of felony sentencing is governed by R.C. 2953.08(G)(2), 

which states: 

The appellate court may take any action authorized by this division 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 section 2929.20 of the Revised 

Code, whichever, if any, is relevant; 

(b) That the sentence is otherwise contrary to law. 

R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court 

to modify or vacate a sentence based on its view that the sentence is not supported 

by the record under R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242, 

2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. Additionally, 

if the sentence is within the statutory range for the offense and the trial 

court considered both the purposes and principles of felony sentencing 

in R.C. 2929.11 and the seriousness and recidivism factors in 

R.C. 2929.12, the court’s imposition of any prison term for a felony 

conviction is not contrary to law. 
State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 7. 

While trial courts are required to consider both R.C. 2929.11 and 

2929.12 before imposing a prison sentence, they are not required to make specific 

findings under any of those considerations. Jones at ¶ 20, citing State v. Wilson, 

129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88 Ohio 

St.3d 208, 724 N.E.2d 793 (2000). “Indeed, consideration of the factors is 

presumed unless the defendant affirmatively shows otherwise.” Phillips at ¶ 8, 

citing State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th Dist.). 

At the outset, we note that in her first assignment of error, Moore 

argues that there was no support in the record “for the requisite statutory findings 

under * * * [R.C.] 2929.14.” However, in this case, the trial court was not required 

to make any findings under R.C. 2929.14. As noted, under R.C. 2953.08(G)(2), 

appellate court review is limited to whether the record supports a trial court’s 

findings under R.C. 2929.14(B)(2)(e) and (C)(4). R.C. 2929.14(B)(2)(e) relates to 

an offender who has been convicted of a repeat violent offender specification, and 

R.C. 2929.14(C)(4) concerns consecutive sentences. Because Moore was not 

convicted of a repeat violent offender specification nor was she sentenced to 

consecutive sentences, the trial court in this case was not required to make these 

statutory findings. 

In essence, Moore seeks to have her sentence modified by this court 

asserting that “there is clear and convincing evidence that the trial court’s findings 

[under R.C. 2929.11 and 2929.12] were not supported by the record, therefore a 
maximum sentence cannot be sustained.” However, the trial court was not required 

to make findings under those statutes, and Moore offers no evidence to rebut the 

presumption that the trial court considered the relevant sentencing factors under 

R.C. 2929.11 and 2929.12. At sentencing, the trial court stated it had “reviewed the 

purposes and principals of the Ohio Revised Code section regarding sentencing and 

significantly looked at [Moore’s] record which * * * is deplorable.” The court 

explained that it could not “grant [Moore] community control sanctions. It would 

be inappropriate, given [her] record and [her] failure to appear.” 

Further, in its journal entry, the court stated that it “considered all 

required factors of the law. The court finds that prison is consistent with the purpose 

of R.C. 2929.11.” This court has previously recognized that those statements alone 

are sufficient to find that the court considered the purposes and principles of felony 

sentencing in R.C. 2929.11 and the seriousness and recidivism factors in 

R.C. 2929.12. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, at ¶ 8 

(finding that a sentencing entry that states the court “considered all required factors 

of law” satisfied the court’s statutory requirements). Therefore, we find that Moore 

has not affirmatively demonstrated that the trial court did not consider all of the 

required sentencing factors under R.C. 2929.11 and 2929.12. 

Accordingly, Moore’s first assignment of error is overruled. 

B. Ineffective Assistance of Counsel 

In her second assignment of error, Moore argues that she was denied 

the effective assistance of counsel. We disagree. 
To succeed on a claim of ineffective assistance of counsel, a defendant 

must establish that his or her attorney’s performance was deficient, and that the 

defendant was prejudiced by the deficient performance. Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, a court need not 

determine whether counsel’s performance was deficient before examining the 

prejudice suffered by the defendant as a result of the alleged deficiencies. To show 

that he or she was prejudiced, the defendant must prove that, but for counsel’s 

errors, the result of a trial would have been different. State v. Williams, 8th Dist. 

Cuyahoga No. 66864, 1995 Ohio App. LEXIS 2847, 16 (July 5, 1995), citing State v. 

Mills, 62 Ohio St.3d 357, 376, 582 N.E.2d 972 (1992). The object of an 

ineffectiveness claim is not to grade counsel’s performance. Id. at 697. See also 

State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). 

Moore argues that her trial counsel was deficient for failing “to argue 

some mitigation of sentence.” We need not decide whether Moore’s trial counsel 

was deficient because Moore cannot demonstrate prejudice. 

A review of the record demonstrates that at sentencing, Moore’s trial 

counsel notified the court that between the time of Moore’s plea and her ultimate 

arrest Moore had been working full time in addition to being a mother. Additionally, 

in an effort to explain why Moore absconded, her attorney informed the trial court 

that prior to sentencing, Moore was required to report to multiple different 

probation officers, “it got overbearing for her to try to work and report to three 

different authorities,” and “she was afraid of being sentenced[.]” 
Further, at the sentencing hearing, Moore addressed the court and 

presented all of the mitigating circumstances she argues her trial counsel failed to 

raise. Therefore, because the trial court had the benefit of hearing Moore’s alleged 

mitigating factors from both her counsel and Moore herself prior to imposing her 

sentence, Moore cannot demonstrate that the outcome would have been different 

but for the alleged error. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue of out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending is terminated. Case remanded to 

the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

LISA B. FORBES, JUDGE 

ANITA LASTER MAYS, P.J., and 

EILEEN T. GALLAGHER, J., CONCUR