[Cite as State v. Duncan, 2019-Ohio-2436.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 107393 

 v. : 

 

HERMAN R. DUNCAN, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: June 20, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-18-624839-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Owen M. Patton, Assistant Prosecuting 

Attorney, for appellee. 

Thomas A. Rein, for appellant. 

RAYMOND C. HEADEN, J.: 

Defendant-appellant Herman R. Duncan (“Duncan”) appeals from 

his sentence. 
Factual and Procedural History 

The charges in this case stem from a January 5, 2018 incident at a bar 

in Bedford, Ohio. Duncan was dancing with two women when a group of men came 

up to them on the dance floor and a fight broke out. Duncan was beaten by these 

men. He left the bar, went to his car to retrieve a gun, and returned to fire a shot 

through the window of the bar toward the dance floor. 

On January 16, 2018, Duncan was indicted on two counts of felonious 

assault and one count of having weapons while under disability. Both felonious 

assault counts carried repeat violent offender specifications and multiple firearm 

specifications. Duncan pleaded not guilty to the indictment. 

On May 2, 2018, a plea hearing was held. After the trial court engaged 

Duncan in a plea colloquy pursuant to Crim.R. 11, the court accepted Duncan’s guilty 

plea to an amended count of felonious assault with a three-year firearm 

specification. The remaining counts and specifications were dismissed, and Duncan 

was referred to the probation department for a presentence investigation and report 

and to the psychiatric department for a mitigation report. 

On May 30, 2018, the trial court held a sentencing hearing. The 

prosecutor, defense counsel, and Duncan each addressed the court. The court 

sentenced Duncan to an aggregate prison term of ten years, made up of seven years 

on the felonious assault charge and three years on the firearm specification. Duncan 

appeals his sentence, presenting one assignment of error for our review. 
Law and Analysis 

In his sole assignment of error, Duncan argues that the record clearly 

and convincingly fails to support the imposition of more than a minimum sentence 

upon him. 

Pursuant to R.C. 2953.08(G)(2), a reviewing court may increase, 

reduce, or otherwise modify a felony sentence if it clearly and convincingly finds that 

either (a) the record does not support certain required statutory findings or, (b) the 

sentence is otherwise contrary to law. A sentence is contrary to law if the court fails 

to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 

and the sentencing factors set forth in R.C. 2929.12. 

R.C. 2929.11(A) establishes that the overriding purposes of felony 

sentencing are to protect the public from future crime by the offender and to punish 

the offender using the minimum sanctions that the court determines will accomplish 

those purposes. While sentencing courts have discretion to determine how best to 

comply with these purposes, R.C. 2929.12 provides a list of factors that courts must 

consider in felony sentencing. Courts must carefully consider these purposes and 

factors, but “it is not necessary for the trial court to articulate its consideration of 

each individual factor as long as it is evident from the record that the principles of 

sentencing were considered.” State v. Gonzalez, 8th Dist. Cuyahoga No. 102579, 

2015-Ohio-4765, ¶ 6, citing State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-

Ohio-1942, ¶ 10. 
A review of the record in this case shows that the trial court 

considered the relevant factors in R.C. 2929.12 and the purposes of felony 

sentencing in R.C. 2929.11. At sentencing, the court discussed the circumstances of 

the offense and noted that when Duncan fired his gun into the bar, he was not 

defending himself or others and the initial fight had ended. The court also discussed 

Duncan’s criminal history, including his apparent disregard for the victims in prior 

cases. Further, the sentencing journal entry states that “the court considered all 

required factors of the law” and “finds that prison is consistent with the purpose of 

R.C. 2929.11.” Duncan argues that the trial court did not reference R.C. 2929.12 at 

the sentencing hearing or in the corresponding journal entry. Such a reference is 

not necessary. 

Even where a trial court does not reference its consideration of 

R.C. 2929.11 and 2929.12 at the sentencing hearing or in its sentencing 

journal entry, this court has held that it can be presumed that the trial 

court considered the relevant sentencing factors under R.C. 2929.11 

and 2929.12 unless the defendant affirmatively shows otherwise. 

State v. Jung, 2018-Ohio-1514, 111 N.E.3d 54, ¶ 16 (8th Dist.), citing State v. Jones, 

8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. See also State v. Esner, 8th Dist. 

Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 10. 

Duncan more specifically argues that the court failed to consider that 

he acted under strong provocation and there are substantial grounds to mitigate his 

conduct, pursuant to R.C. 2929.12(C)(2) and (4). The record, however, clearly 

indicates that the court considered the factors Duncan argues mitigate his conduct. 

The fact that the trial court disagreed with his or his counsel’s theory that he was 
acting under strong provocation and was attempting to protect others does not 

undermine the trial court’s consideration of those factors. 

Duncan pleaded guilty to felonious assault, in violation of 

R.C. 2903.11(A)(2), a felony of the second degree. R.C. 2929.14(A)(2)(a) provides 

that the sentencing range for felonies of the second degree is two to eight years. 

Here, the court’s seven-year sentence on the felony was within the statutory range. 

Because Duncan’s sentence is within the statutory range and we do 

not clearly and convincingly find that the record does not support the relevant 

findings, we affirm Duncan’s sentence. 

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 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. 

 

RAYMOND C. HEADEN, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

MICHELLE J. SHEEHAN, J., CONCUR