[Cite as State v. Stapleton, 2021-Ohio-3281.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, 

 Appellee, 

 - vs - 

JACK RON STAPLETON, 

 Appellant. 

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CASE NO. CA2020-12-133 

O P I N I O N 

9/20/2021 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2020-05-0572 

Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant 

Prosecuting Attorney, for appellee. 

Michele Temmel, for appellant. 

 PIPER, P.J. 

{¶ 1} Appellant, Jack Stapleton, appeals his sentence in the Butler County Court of 

Common Pleas after pleading guilty to felonious assault. 

{¶ 2} Stapleton was indicted on seven counts related to an incident in which he 

trespassed into the victim's apartment and caused her serious physical harm. By virtue of 

a plea agreement, Stapleton agreed to plead guilty to felonious assault and the remaining 
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charges were dismissed by the state. 

{¶ 3} After a presentence investigation and a sentencing hearing, the trial court 

sentenced Stapleton to an indefinite sentence of five to seven and one-half years. Stapleton 

now appeals his sentence, raising the following assignments of error: 

{¶ 4} Assignment of Error No. 1: 

{¶ 5} THE TRIAL COURT IMPROPERLY PRESUMED THAT OHIO REVISED 

CODE 2967.271 IS CONSTITUTIONAL. 

{¶ 6} Stapleton essentially challenges the constitutionality of the Reagan Tokes Act 

in his first assignment of error. However, he did not raise the issue before the trial court. It 

is well established that the question of the constitutionality of a statute must be raised at the 

first opportunity and, in a criminal prosecution, this means in the trial court. State v. Buttery, 

Slip Opinion No. 2020-Ohio-2998, ¶ 7. Consequently, by not first raising the issue with the 

trial court, Stapleton's arguments challenging the constitutionality of R.C. 2967.271 are 

forfeited and will not be heard for the first time on appeal. State v. Teasley, 12th Dist. Butler 

No. CA2020-01-001, 2020-Ohio-4626, ¶ 9; State v. Singh, 12th Dist. Warren No. CA2020-

09-056, 2021-Ohio-2158, ¶ 53. 

{¶ 7} Even so, we note that this court has addressed the arguments raised by 

Stapleton, including due process and separation of powers, and has declined to find those 

arguments persuasive. State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048, 2021-

Ohio-1353, ¶ 11; State v. Suder, 12th Dist. Clermont Nos. CA2020-06-034 and CA2020-

06-035, 2021-Ohio-465, ¶ 27. 

{¶ 8} Stapleton's first assignment of error is overruled. 

{¶ 9} Assignment of Error No. 2: 

{¶ 10} THE TRIAL COURT FAILED TO CONSIDER R.C. §2929.11 AND §2929.12 

AT SENTENCING. 
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{¶ 11} Stapleton argues in his second assignment of error that the trial court erred in 

sentencing him without first adhering to the statutory sentencing requirements. 

{¶ 12} An appellate court reviews an imposed sentence according to R.C. 

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, ¶ 1. R.C. 2953.08(G)(2) provides that an appellate court can modify or 

vacate a sentence only if the appellate court finds by clear and convincing evidence that 

the record does not support the trial court's findings under relevant statutes or that the 

sentence is otherwise contrary to law. 

{¶ 13} A sentence is not clearly and convincingly contrary to law where the trial court 

"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 

2929.12, properly imposes postrelease control, and sentences the defendant within the 

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8. 

{¶ 14} A trial court's sentencing decision is not contrary to law merely because the 

court failed to make an explicit reference to either R.C. 2929.11 or 2929.12 at the 

sentencing hearing. State v. Hall, 12th Dist. Warren No. CA2011-05-043, 2011-Ohio-5748; 

State v. Hensley, 12th Dist. Butler No. CA2011-04-078, 2011-Ohio-6350, ¶ 7. A trial court 

is not required to state any talismanic language when imposing a sentence. State v. 

Kuykendall, 12th Dist. Clermont No. CA2004-12-111, 2005-Ohio-6872, ¶ 24. "The statutory 

language itself does not have magical powers. Instead, it is merely a vehicle to ensure that 

the trial court engaged in the required analysis." Id. 

{¶ 15} There is no requirement in the statutes that the trial court cite to the statutes 

or name them by title during the sentencing hearing. State v. Polick, 101 Ohio App.3d 428, 

431 (4th Dist. 1995). R.C. 2929.11 and 2929.12 do not require judicial fact finding so that 

the court is not obligated to use particular language or make specific findings on the record 
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regarding its consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-

Ohio-2669, ¶ 31. "Consideration of the appropriate factors can be presumed unless the 

defendant affirmatively shows otherwise." State v. Carrion, 8th Dist. Cuyahoga Nos. 

103393 and 103394, 2016-Ohio-2942, ¶ 10. Even so, there must be some reference in the 

record that the trial court considered the statutory requirements. State v. Warren, 12th Dist. 

Clermont No. CA2012-12-087, 2013-Ohio-3483, ¶ 16. 

{¶ 16} Stapleton does not assert that his sentence was outside the statutory range, 

or that the trial court failed to impose postrelease control. Instead, he argues that his 

sentence is contrary to law because the trial court failed to consider the requisite statutory 

considerations. While Stapleton is correct that the trial court did not specifically cite either 

R.C. 2929.11 or 2929.12 during sentencing, or name the titles of those statutes as the 

purposes of sentencing and recidivism factors, the record demonstrates the trial court's 

proper consideration of the requisite statutes. 

{¶ 17} During the sentencing hearing, the trial court specifically addressed Stapleton 

and noted that he had "some redeeming qualities," asked questions of Stapleton, inquired 

into Stapleton's history, and reiterated the details of the crime when speaking to Stapleton 

of the considerations it had made. Further, the trial court specifically noted that it had 

considered "everything [the court had] been presented," which included the presentenceinvestigative report and Stapleton's ample criminal history. 

{¶ 18} Moreover, the trial court expressly noted its consideration of the requisite 

considerations in its sentencing entry wherein the trial court stated, 

The Court has considered the record, the charges, the 

defendant's Guilty Plea, and findings as set forth on the record 

and herein, oral statements, any victim impact statement and 

pre-sentence report, as well as the principles and purposes of 

sentencing under Ohio Revised Code Section 2929.11, and has 

balanced the seriousness and recidivism factors of Ohio 

Revised Code Section 2929.12 and whether or not community 
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control is appropriate pursuant to Ohio Revised Code Section 

2929.13 * * * 

{¶ 19} These written assertions reflect the considerations the trial court discussed at 

the hearing, including those specifically required by statute. Thus, the record demonstrates 

that the trial court properly considered the statutory requirements before sentencing 

Stapleton. See State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, ¶60 (nothing in 

the requisite statutes or the decisions of the Ohio Supreme Court impose any duty on the 

trial court to set forth its findings), State v. Hughes, 6th Dist. No. WD-05-024, 2005-Ohio6405, ¶10 (trial court was not required to address each statutory factor individually or to 

make a finding as to whether such factors were applicable). 

{¶ 20} We note that the better practice is for the trial court to specifically note its 

consideration of required statutes during the sentencing hearing while addressing the 

defendant. However, and as we noted in State v. Hall, although a statement on the record 

at the sentencing hearing making specific reference to the statutes would have likely 

clarified the issue for the defendant, the lack thereof does not render the sentence contrary 

to law. 2011-Ohio-5748, ¶ 7. Thus, Stapleton's second assignment of error is overruled. 

{¶ 21} Judgment affirmed. 

 S. POWELL and M. POWELL, JJ., concur.