[Cite as State v. McCoy , 2020-Ohio-1006.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : TODD A. MCCOY II : Case Nos. 2019CA0004 & : 2019CA0005 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case Nos. 2018CR 000117 & 2018 CR 000140

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 12, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JASON W. GIVEN DAVID F. HANSON 318 Chestnut Street KORT GATTERDAM Coshocton, OH 43812 280 Plaza, Suite 1300 280 North High Street Columbus, OH 43215Coshocton County, Case Nos. 2019CA0004 & 2019CA0005 2
Wise, Earle, J. {¶ 1} Defendant-Appellant Todd A. McCoy, II appeals the Februar y 3, 2018 sentencing judgment entry of the Court of Common Pleas, Coshoct on, Ohio. PlaintiffAppellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} This matter involves two cases, each involving McCoy comm itting multiple burglaries, stealing the possessions of the homeowners, and sub sequently selling or pawning the items, which included firearms. In the first case, on July 23, 2018, the Coshocton Grand Jury returned a four count indictment. In the s econd, the grand jury returned a 31 count indictment. {¶ 3} On January 11, 2019, McCoy pled guilty as charged in each case. The trial court set the matter over for sentencing and ordered a pre-sent ence investigation. On February 1, 2019, the trial court sentenced McCoy on both cases to an aggregate total of 36 years incarceration. The sentence included numerous consecut ive sentences, some of them mandatory. {¶ 4} McCoy filed an appeal, and the matter is now before this court for consideration. He raises one assignment of error: I {¶ 5} "DEFENDANT-APPELLANT'S SENTENCE IS NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE IN THE RECORD IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS, TO THE UNITED STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTIT UTION AND R.C. 2953.08, RC. 2929.11 AND R.C. 2929.12.Coshocton County, Case Nos. 2019CA0004 & 2019CA0005 3 {¶ 6} In his sole assignment of error, McCoy makes two argument s. McCoy first argues that his sentence requires reversal as the trial court n ever considered R.C. 2929.12 or R.C. 2929.11. Second, McCoy argues his sentence is c ontrary to law because the trial court failed to adequately consider R.C. 2929.12 and R.C. 2929.11, fashioned a sentence that is not supported by the record, and is disproport ionate to the crimes committed. We disagree on both counts. {¶ 7} McCoy asks this court to m odify his sentence to accuratel y reflect R.C. 2929.11 and R.C 2929.11 sentencing considerations. In support o f this argument, McCoy relies upon our opinion in State v. Gwynne , 5th Dist. No. 16 CAA 12 0056, 2017-Ohio7570, and State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. {¶ 8} On January 8, 2019, the Supreme Court of Ohio accepted Gwynne on discretionary appeal. State v. Gwynne , Slip Opinion No. 2019-Ohio-4761. On November 21, 2019, the court rendered an opinion which concluded that R. C. 2929.11 and R.C. 2929.12 have no application in our review of consecutive senten ces, and that Marcum had no application to Gwynne's case as Marcum applied to a challenge to the length of sentence for a single count. Id . ¶15, 17. The court further instructed that upon remand, we analyze Gwynne's consecutive sentences using the standard of review set forth in R.C. 2953.08(G)(2). We therefore analyze McCoy's sentences unde r that standard. {¶ 9} We review felony sentences using the standard of review s et forth in R.C. 2953.08. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. R.C. 2953.08(G)(2) provides we may either increase, reduce, mod ify, or vacate a sentence and remand for resentencing where we clearly and convi ncingly find that eitherCoshocton County, Case Nos. 2019CA0004 & 2019CA0005 4 the record does not support the sentencing court's findings und er R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is o therwise contrary to law. {¶ 10} Clear and convincing evidence is that evidence “which wi ll provide in the mind of the trier of facts a firm belief or conviction as to th e facts sought to be established.” Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of t he syllabus. “Where the degree of proof required to sustain an iss ue must be clear and convincing, a reviewing court will examine the record to determ ine whether the trier of facts had sufficient evidence before it to satisfy the requisit e degree of proof.” Cross , 161 Ohio St. at 477, 120 N.E.2d 118. {¶ 11} The trial court has full discretion to impose any senten ce within the authorized statutory range, and the court is not required to ma ke any findings or give its reasons for imposing maximum or more than minimum sentences. Se e State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seve n of the syllabus. However, the trial court must comply with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12. State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37. A trial court's imposition of a maximum prison term is not contrary to law as long as the court sentences the offender within the statutor y range for the offense, and in so doing, considers the purposes and principles of felony se ntencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth R. C. 2929.12. State v. Santos , 8th Dist. Cuyahoga No. 103964, 2016-Ohio-5845, ¶ 12. Although a trial court must consider the factors in R.C. 2929.11 and 2929.12, there is no requirement that the court state its reasons for imposing a maximum sentence, or for imposing a particular sentence within the statutory range. Id

.Coshocton County, Case Nos. 2019CA0004 & 2019CA0005 5 {¶ 12} McCoy does not indicate whether he challenges an individ ual sentence, or his consecutive sentences. To be sure, he does not argue that a ny of his individual sentences are outside the statutory range, and upon our review of McCoy's sentence, we find no individual sentence outside the statutory range. {¶ 13} In its February 3, 2019 sentencing entry the trial court indicated: "Upon due consideration to the matters set forth in Section 2929.12 & 292 9.13 of the Ohio Revised Code and all other matters pertinent to the sentence to be impo sed, the Court finds that the only a prison term is consistent with the purposes and prin cipals of sentencing in R.C. 2929.11." The trial court also made the appropriate findings be fore imposing consecutive sentences. Transcript of Sentencing, February 1, 2019, 23-24. W e find, therefore, McCoy's sentence is not contrary to law. {¶ 14} Finally, we note that even if we could analyze the insta nt matter as we did in Gwynne this matter is distinguishable. The appellant in Gwynne had a prior misdemeanor offense unrelated to the matter she appealed. Here, on the other hand, McCoy had previously served a prison term for engaging in the s ame criminal behavior charged in this matter. Id . 14-15. We find, therefore, the cases are not analogous. {¶ 15} The sole assignment of error is overruled. {¶ 16} The judgment of the Court of Common Pleas, Coshocton Cou nty, is affirmed.

By Wise, Earle, J. Gwin, P.J. and Wise, John, J. concur. EEW/rw