[Cite as State v. Pence , 2020-Ohio-4112.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2019-T-0088 - vs - : RANDY W. PENCE, : Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2019 CR 00297.

Jud g ment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Str eet, N.W., Warren, OH 44481 ( For Plaintiff-Appellee )

. Robert T. McDowall, Jr., Robert T. McDowall Co., LLC, 415 Wyndclift Place, Youn g stown, OH 44515 ( For Defendant-Appellant )

.

CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, Randy W. Pence, appeals from the judgment of the Tru mbull County Court of Common Pleas, sentencing him to an aggregate te rm of 30-months imprisonment. Appellant challenges the duration and the consec utive nature of the sentencing order. We affirm. {¶2} On March 3, 2019, Warren Township police officers responded to a call concerning a domestic-violence call at the residence appellant shared with his mother.2 When the officers attempted to investigate, appellant was nonco mpliant. He eventually kicked one of the officers and was finally arrested. Appellant was charged with assault on a peace officer, in violation of R.C. 2903.13(A) and (C)(5), a felony of the fourth degree; obstructing official business, in violation of R.C. 292 1.31(A) and (B), a misdemeanor of the second degree. {¶3} At the time of his arrest, appellant was subject to community c ontrol, stemming from a conviction for aggravated drug possession, a fe lony of the fifth degree. Due to the March 3, 2019 arrest, appellant was charged with vio lating community control. Appellant ultimately entered a plea of guilty to an a mended felony-four assault charge; the trial court nolled the obstruction charge. {¶4} At sentencing, appellant refused to acknowledge or speak with t he trial judge and did not offer any statement in allocution. Moreover, defense counsel advised the court he reviewed the notice of prison imposition form, but appellant refused to sign it. After reading the notice aloud on record, the trial court sentenced appellant to a prison term of 18 months on the assault charge, which was order ed to run consecutively with a 12-month term imposed for the community-control violatio n (originally the aggravated-drug possession). Appellant now appeals and assigns the following as

error: {¶5} “Defendant-appellant’s sentence was unduly harsh and the trial court’s findings were not supported by the record.” {¶6} Appellant first takes issue with the duration of the terms of i mprisonment imposed by the trial court for each crime. Recently, in State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, the Supreme Court of Ohio clarified that R .C. 2929.11 and R.C.3 2929.12 apply to the review of the duration of individual sente nces. Gwynne , supra , at ¶17-18. R.C. 2929.11 addresses the purposes and principles of felony sentencing

and R.C. 2929.12 sets forth “seriousness” and “recidivism” fact ors. A sentencing court is not required to use specific language and render precise findin gs to satisfactorily

“consider” the relevant seriousness and recidivism factors. State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416, ¶79. Instead, the defendan t has the burden to affirmatively show that the court did not consider the applicab le sentencing criteria or that the sentence imposed is “strikingly inconsistent” with app licable sentencing

factors. Id. Thus, we presume a trial court considered the statutory purpos es, principles,

and factors from a silent record. State v. Morefield , 2d Dist. Clark No. 2013-CA-71, 2014-Ohio-5170, ¶41. {¶7} In State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, the Supreme

Court stated: {¶8} We note that some sentences do not require the findings that R. C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929. 11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or mod ify any sentence that is not clearly and convincingly contrary to l aw only if the appellate court finds by clear and convincing evide nce that the record does not support the sentence. Marcum , supra , at ¶23. {¶9} Appellant argues the trial court failed to give adequate weight to his expression of remorse; to his nonviolent criminal history prior to the instant assault offense; his documented mental disorder(s); to his favorable re sponse to earlier drug treatment; and that his action of kicking the officer was not t he worst form of the offense of assault on a peace officer.4 {¶10} Initially, although appellant had previously expressed remorse, accountability, and represented he had been “clean,” or free of any drug use, for some time, these representations occurred at a pretrial hearing befo re his plea was taken. Appellant did not speak and, indeed, completely declined to ack nowledge the trial judge during sentencing. Hence, the trial court was at liberty to di sregard appellant’s prior representations or, at the least, was not required to expressly note appellant’s previous

statements. {¶11} Further, appellant’s mental health disorders were noted in the presentence investigation (“PSI”) and highlighted by defense couns el at sentencing. Appellant also had an opportunity to express contrition and ela borate on the nature and arguable severity of his mental health problems but elected to remain silent and ostensibly ignore the trial judge during the hearing. And, eve n though appellant’s act of kicking the officer may not be the “worst” form of the offense to which he pleaded, this does not imply, in light of other factors, such as appellant’s criminal history and the facts of the case, that maximum penalties for each offense were unjus tified. The court stated it had considered the PSI and the points addressed at the heari ng. Given these points, we discern no error in the court’s imposition of 12 and 18 mont hs, respectively, for the offenses to which he pleaded guilty. {¶12} Next, appellant does not argue the trial court failed to make t he necessary statutory findings; rather, he challenges the basis of the tria l court’s findings supporting its imposition of consecutive sentences. We review consecutive sentences imposed pursuant to R.C. 2929.14(C)(4) under R.C. 2953.08(G)(2), which states:5 {¶13} The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underly ing the sentence or modification given by the sentencing court. {¶14} The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appella te court may take any action authorized by this division if it cle arly and convincingly finds either of the following: {¶15} (a) That the record does not support the sentencing courts fin dings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of sect ion 2929.20 of the Revised Code, whichever, if any, is relevant; {¶16} (b) That the sentence is otherwise contrary to law. {¶17} Appellate courts “‘may vacate or modify any sentence that is no t clearly and convincingly contrary to law’” only when the appellate cour t clearly and convincingly finds that the record does not support the sentence. State v. Wilson , 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, ¶8, quoting Marcum, supra

. {¶18} Further, R.C. 2929.14(C)(4) provides, in relevant part, as foll ows regarding consecutive felony sentences: {¶19} If multiple prison terms are imposed on an offender for convict ions of multiple offenses, the court may require the offender to ser ve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any o f the following: {¶20} (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929. 18 of the Revised Code, or was under post-release control for a pr ior offense.6 {¶21} (b) At least two of the multiple offenses were committed as par t of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unus ual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. {¶22} (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. R.C. 2929.14(C)(4). {¶23} Appellant does not dispute the trial court made the necessary f indings to support consecutive sentences; rather, he maintains that the re cord does not support certain findings. {¶24} At the sentencing hearing, the trial court stated: {¶25} And the court finds consecutive sentences are necessary to puni sh the offender, to protect the public from future crime, and not disproportionate to the conduct or danger imposed by the defendant. And his criminal history has been articulated and h is utter disregard for the system demonstrates that consecutive sentences are necessary to protect the public. {¶26} Appellant argues the court’s determinations that (1) his crimin al history and (2) his alleged disregard for the system cannot justify con secutive sentences because these conclusions are unsupported by the record. We do not agree. {¶27} With regard to appellant’s criminal history, appellant has a pr evious felonyfive assault on a peace officer conviction; a felony-five aggra vated possession of drugs conviction; a felony-five theft conviction; and the instant fel ony-four assault conviction. He also has four additional misdemeanor convictions. Although appellant’s criminal history, in the abstract, is not unusually severe, two of his f our felonies, including the instant assault conviction, are crimes of violence. The trial court did not err in finding appellant’s criminal history justifies consecutive sentences.7 {¶28} Further, appellant’s behavior during sentence, i.e., reacting i n an unresponsive manner to the trial court’s queries, demonstrates some disregard for the judicial process. More importantly, the facts which led to the assault conviction are worth noting. The underlying assault charge was the result of a domestic violence call wherein officers responded to appellant’s residence due to purp orted death threats he made to his mother (with whom he resided at the time). Upon th eir arrival, officers observed appellant in a significantly standoffish state. The re sponding officers recounted that, appellant was verbally aggressive and postured before police with two large and increasingly agitated pit bull dogs. Officers advise d appellant if he used the dogs to obstruct their investigation, he could be arrested. Whe n he was repeatedly asked to secure the dogs outside or in another room of the resi dence, for the safety of all involved, appellant refused and continued to maintain an an tagonistic attitude. Officers warned appellant on several occasions that if he did n ot cooperate and remove his animals, who, throughout the encounter became progressively and visibly irate, he could be arrested. Appellant s till refused to comply. {¶29} During the incident, appellant complained of difficulty breathi ng and, for his safety, officers called for an ambulance. When paramedics arrived, appellant still refused to secure his dogs such that he could not be safely ass essed. Ultimately, paramedics concluded appellant refused medical assistance and l eft the residence; throughout the incident, officers reported appellant continued to use the dogs to threaten and intimidate every responder. While one officer att empted to arrest appellant, he was kicked, and appellant advised he would kick a gain if approached. Ultimately, one of the dogs slipped its collar and left the roo m. Appellant was informed8 he was under arrest and an officer pointed a taser at his chest . Appellant finally relented, allowing his mother to secure the remaining dog. {¶30} In light of the facts of this incident, as well as his courtroo m demeanor, the court could reasonably conclude appellant has a disregard for t he law enforcement, medical responders, and the judicial process, i.e., “the system .” We therefore conclude the trial court’s findings are supported by the record and ther efore we discern no error in its imposition of consecutive sentences. {¶31} Appellant’s assignment o f error lacks merit. {¶32} For the reasons discussed in this opinion, the judgment of the Trumbull County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, P.J., THOMAS R. WRIGHT, J.,

concur.