[Cite as State v. Moisio , 2020-Ohio-1321.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2019- A -0072 - vs - : CHARLES DAVID MOISIO, : Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas , Case No. 2018 CR 00567.

Jud g ment: Affirmed.

Cecelia M. Cooper , Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jeffe rson Street, Jefferson, OH 44047 ( For Plaintiff-Appellee )

. Phillip L. Heasley, Ashtabula County Public Defender, Inc., 4817 State Road, Suite 202, Ashtabula, OH 44004 ( For Defendant-Appellant )

.

CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, Charles David Moisio, appeals the August 12, 2019 Ju dgment of the Ashtabula County Court of Common Pleas, accepting his guilt y plea to one count Having Weapons While under Disability and sentencing him to 18 months imprisonment. For the reasons set forth herein, the judgment is affirmed. {¶2} After an incident in which Mr. Moisio, while intoxicated, waive d a shotgun in the air at two alleged trespassers, he was indicted on two coun ts: Count One, Having2 Weapons While Under Disability, along with a forfeiture specifi cation, a felony of the third degree, in violation of R.C. 2923.13(A)(1); and Count Two, Usin g Weapons While Intoxicated, a misdemeanor in the first degree, in violation of R.C. 2923.15(A). {¶3} Mr. Moisio pleaded guilty to Count One and the remaining count was dismissed. He further executed a Verdict of Forfeiture agreein g to forfeit firearms seized in this matter. Contrary to a joint recommendation of communit y control, the court sentenced him to 18 months imprisonment. {¶4} Mr. Moisio now appeals, assigning one error for our review: {¶5} The court’s sentence must be reversed and remanded as contrary to law. {¶6} Mr. Moisio argues that the court did not adhere to the requisit e sentencing factors of R.C. 2929.11 and R.C. 2929.12, in that it did not co nsider the punishment purpose in R.C. 2929.11 and did not adequately consider the pro motion of the effective

rehabilitation of the offender usi ng the minimum sanctions the court determines necessary. In particular, Mr. Moisio argues that the court did not state on the record why prison was necessary and why community control was demeaning to the seriousness of

his conduct. {¶7} “[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the reco rd does not support the trial court’s findings under relevant statutes or that the sentence i s otherwise contrary to law.”

State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶1. {¶8} While the trial court was required to consider the factors set forth in R.C. 2929.12, the court is not required to “use specific language or make specific findings on the record in order to evince the requisite consideration of th e applicable seriousness and3 recidivism factors [of R.C. 2929.12].” State v. Webb , 11th Dist. Lake No. 2003-L-078, 2004-Ohio-4198, ¶10. {¶9} “[T]he burden is on the defendant to present evidence to rebut the presumption that the court considered the sentencing criteria.” State v. Long , 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416, ¶79. “[I]n order to rebut this presumption, ‘“‘a defendant must either affirmatively show that the court failed to [consider the statutory factors], or that the sentence the court imposed is “strikingly inconsistent” with the statutory factors as they apply to his case.’”’ Id., quoting State v. Bigley , 9th Dist. Medina No. 08CA0085–M, 2009-Ohio-2943, ¶14, quoting State v. Rutherford , 2d Dist. Champaign No. 08CA11, 2009-Ohio-2071, ¶34. {¶10} The court expressly stated it considered “the purposes and prin ciples of sentencing (R.C. 2929.11) and the sentencing factors [seriousne ss and recidivism (R.C. 2929.12)].” Mr. Moisio has not presented evidence to affirmati vely show the court failed to consider these factors. Further, he has failed to demonstra te the sentence was “strikingly inconsistent” with the statutory factors. The cour t noted that while this was Mr. Moisio’s first felony, he had not been a law-abiding citizen si nce 2013; he had a prior criminal record, including two OVIs, an instance of domestic vi olence, which resulted in a weapons forfeiture, and a crime that occurred when using weapon s while intoxicated. The court also noted that while he had followed community contr ol in the past, he had been sanctioned multiple times on probation. Accordingly, the court found that “community control would demean the seriousness of the conduct in this case and its impact upon the victim, and would not adequately protect the pu blic. Therefore, a4 sentence of imprisonment is commensurate with the seriousness o f the Defendant’s conduct, and would not place an unnecessary burden on the State .” {¶11} As the imposition of an 18-month term of imprisonment is not co ntrary to law and is reasonable supported by the record, the judgment of the Ashtabula County

Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J., MATT LYNCH, J.,

concur.