[Cite as State v. Wilson , 2020-Ohio-3857.]

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. 2020- A -0003 - vs - : BRIAN VAUGHN WILSON, : Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas

. Case No. 2019 CR 00246.

Jud g ment: Affirmed.

Cecilia 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, Suit e 202, Ashtabula, OH 44004 ( For Defendant-Appellant )

.

TIMOTHY P. CANNON, P.J. {¶1} Appellant, Brian Vaughn Wilson, appeals from the judgment entry of sentence imposed by the Ashtabula County Court of Common Pleas on December 23, 2019. The trial court’s judgment is affirmed. {¶2} On April 24, 2019, appellant was indicted on two counts of Gros s Sexual Imposition, felonies of the third degree, in violation of R.C. 2907.05(A)(4) & (C)(2). The indictment alleged appellant had sexual contact with another, n ot the spouse of2 appellant, when the other person was less than thirteen years o f age. Appellant entered a plea of “not guilty” on June 20, 2019. {¶3} On October 21, 2019, the day his jury trial was set to begin, a ppellant executed a written plea of guilty and plea agreement, pursuant to North Carolina v.

Alford , 400 U.S. 25 (1970) (“ Alford plea”), to one count of Attempted Gross Sexual Imposition, a felony of the fourth degree, in violation of R.C. 2907.05(A)(4) & (C)(2) and 2923.02(A). The state of Ohio agreed to dismiss the second cou nt of the indictment. {¶4} A change of plea hearing was held that day, wherein the trial c ourt approved and accepted appellant’s Alford plea. As factual basis for the plea, the prosecutor stated that on or about October 15, 2018, appellant lived in Jefferson Township, Ohio, with the 12-year-old victim and a couple other people. The victim reported that appellant had sexual contact with her by touching her buttocks, thigh, and pubic region on that date. {¶5} On December 19, 2019, following a presentence investigation, ap pellant’s sentencing hearing was held. The offense carried no presumptio n of prison, and a prison sentence was not mandatory. Appellant requested communi ty control, as he has never been placed on probation before, this is his first felony offense, and he does not have a juvenile record. Appellant also had not been in contact with the victim or her family. {¶6} The prosecution asked the trial court to impose a period of inc arceration, due to the victim’s young age, appellant’s relationship with th e victim facilitating the offense, and the victim experiencing psychological harm, includ ing harming herself and difficulty coping in school.3 {¶7} The trial court sentenced appellant to 18 months in prison, whi ch is the maximum term permitted for the offense, with a mandatory five-y ear term of postrelease control. Appellant was classified a Tier II sex offend er. {¶8} Appellant noticed a timely appeal from the December 23, 2019 se ntencing entry and raises one assignment of error for our review: {¶9} “The trial court erred in sentencing defendant to 18 months’ in carceration.” {¶10} Felony sentences are generally reviewed under the standard set forth in R.C. 2953.08(G)(2): The court hearing an appeal under division (A), (B), or (C) of the section shall review the record, including the findings underly ing the sentence or modification given by the sentencing court. 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 of 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 convincing finds either of the following: (a) That the record does not support the sentencing court’s 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 section 2929.20 o f the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law. {¶11} “Under this standard, an appellate court upholds the imposed fe lony sentence unless: (1) required mandatory findings are clearly an d convincingly not supported by the record; or (2) the sentence is clearly and con vincingly contrary to law.”

State v. Aldrich , 11th Dist. Ashtabula No. 2017-A-0033, 2017-Ohio-8944, ¶32 (ci tations omitted).4 {¶12} Appellant argues the trial court did not sufficiently adhere to the mandatory sentencing factors in R.C. 2929.11 and 2929.12. He contends th ere is no indication in

the record that the trial court considered the R.C. 2929.12 fac tors at all. {¶13} Pursuant to R.C. 2929.12(A), “a court that imposes a sentence u nder this chapter upon an offender for a felony has discretion to determi ne the most effective way to comply with the purposes and principles of sentencing set fo rth” in R.C. 2929.11 (unless otherwise required by 2929.13 or 2929.14). “In exercis ing that discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the seriousness of the conduct, the factors provided in divisio ns (D) and (E) of this section relating to the likelihood of the offender’s recidivism , and the factors set forth in division (F) of this section pertaining to the offender’s servi ce in the armed forces of the United States and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing.” Id. {¶14} While the sentencing court is required to consider the R.C. 292 9.12 factors, it “is not required to give any particular weight or e mphasis to a given set of circumstances[.]” State v. DelManzo , 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, ¶23. Further, “[s]uch a consideration does not require the sen tencing court to ‘“use specific language or make specific findings on the record in or der to evince the requisite consideration of the applicable seriousness and recidivism fact ors (of R.C. 2929.12).”’” State v. Long , 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416, ¶79, quoting State v.

Webb , 11th Dist. Lake No. 2003-L-078, 2004-Ohio-4198, ¶10, quoting State v. Arnett , 88 Ohio St.3d 208, 215 (2000). Even “‘[a] silent record raises the presumption that a5 trial court considered the factors contained in R.C. 2929.12.’” Id. , quoting State v.

Adams , 37 Ohio St.3d 295 (1988), paragraph three of the syllabus. {¶15} It is the defendant’s burden to rebut the presumption that the sentencing court considered the sentencing criteria. Id. , citing State v. Cyrus , 63 Ohio St.3d 164, 166 (1992). “[I]n order to rebut this presumption, ‘“a defenda nt 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 f actors as they apply to his

case.”’” Id. , quoting State v. Bigley, 9th Dist. Medina No. 08CA0085–M, 2009-Ohio2943, ¶14, quoting State v. Rutherford, 2d Dist. Champaign No. 08CA11, 2009-Ohio2071, ¶34. {¶16} Appellant’s reliance on State v. Hope , 12th Dist. Preble No. CA2018-12- 018, 2019-Ohio-3719 is misplaced. In Hope , the Twelfth Appellate District found the defendant’s sentence was contrary to law because the trial cour t neither stated it had considered the requisite statutory factors at the sentencing he aring nor did the sentencing entry indicate the court had considered the factors. Id. at ¶22-23. {¶17} Here, the trial court’s sentencing entry states that the court considered “* *

* the seriousness and recidivism factors relevant to the offens e and offender pursuant to R.C. 2929.12[.]” The record also demonstrates what the trial c ourt considered to be the relevant seriousness and recidivism factors at sentencing: [THE COURT]: Alright. Well, the circumstances are serious. It ’s a very serious offense involving a young girl, and the consequenc es appear to have also been serious. For the reasons already poin ted out, such as the actual relationship and position virtually of trust that facilitated the offense, and the fact also that you have r eceived in the court’s view consideration in the plea agreement itself in the dismissal of a count and the reduction of the charge. So the C ourt agrees that community control would be demeaning to the6 seriousness of your conduct in this case, and would not be commensurate with that conduct, and the prison sentence is necessary to deal with the seriousness of the circumstances of this case. {¶18} Further, appellant has not demonstrated that the sentence he re ceived is “strikingly inconsistent” with the record. He argues that the trial court impermissibly considered the benefit of a plea bargain favorable to appellant as an aggravating factor in sentencing him to the maximum amount of prison time permitte d, which is not a factor

listed in R.C. 2929.12. {¶19} R.C. 2929.12(A) does expressly provide, however, that the sente ncing court shall consider, in addition to the seriousness and recidi vism factors, “any other factors that are relevant to achieving [the] purposes and princ iples of sentencing.” {¶20} It is apparent from the trial court’s statement at sentencing t hat it was considering the original charges appellant faced under the indi ctment. It has been widely held that this is permissible, despite a defendant’s agr eement to plead to lesser charges. State v. Huntley , 4th Dist. Hocking No. 02CA15, 2002-Ohio-6806, ¶14 (“Real offense sentencing allows sentencing courts to take into accoun t the true facts of a case even though a plea bargain may result in a more lenient charge. ”); State v. Kittelson , 11th Dist. Lake No. 2016-L-062, 2016-Ohio-8430, ¶45 (“the court is entitled to consider the victim’s version of events as reported in a presentence rep ort despite the offender’s plea to a lesser charge”); State v. Blevins , 8th Dist. Cuyahoga No. 105023, 2017-Ohio4444, ¶36 (“the trial court is permitted to consider the origin al charge when imposing its sentencing”); State v. Bowser , 186 Ohio App.3d 162, 2010-Ohio-951, ¶17-20 (2d Dist.) (consideration of the underlying facts in no way abrogates the offender’s plea agreement); State v. Namack , 7th Dist. Belmont No. 01 BA 46, 2002-Ohio-5187, ¶20 (at7 sentencing, a trial court may not consider a crime neither char ged nor proven, but it may consider a crime originally charged). {¶21} Because appellant has not affirmatively demonstrated that the t rial court failed to consider the statutory factors or that the sentence i mposed is “strikingly inconsistent” with the statutory factors as applied to his case , we conclude the trial court did not err in sentencing appellant to 18 months in prison. {¶22} Appellant’s sole assignment of error is without merit. {¶23} The judgment of the Ashtabula County Court of Common Pleas is

affirmed.

THOMAS R. WRIGHT, J., MARY JANE TRAPP, J.,

concur.