[Cite as State v. Worthen , 2021-Ohio-2788.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. DIAMOND WORTHEN Defendant-Appellant : : : : : : : : : : Appellate Case No. 29043

Trial Court Case No. 2020-CR-3213 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 13th day of August, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR. by J. JOSHUA RIZZO, Atty. Reg. No. 0099218 , Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Bouleva rd, Suite 270, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant

. . . . . . . . . . . . .-2-

EPLEY, J. {¶ 1} Defendant-Appellant Diamond Worthen pled guilty to harassment b y an inmate (bodily substance) in violation of R.C. 2921.38(A), a fe lony of the fifth degree, and was sentenced to 12 months in prison, to be served concurrently with a sentence in another case. Worthen appeals from her conviction, claiming th at the trial court abused its discretion in imposing a 12-month sentence due to its failu re to properly consider R.C. 2929.11 and R.C. 2929.12 at sentencing. For the following reas ons, the trial court’s judgment will be affirmed. I. Facts and Procedural History {¶ 2} In September 2020, Worthen was incarcerated on her conviction f or assault on a peace officer in Montgomery C.P. No. 2020-CR-604. On Sept ember 29, she engaged in criminal conduct toward a corrections officer that r esulted in a charge of harassment by an inmate (bodily substance). Worthen was indict ed for that offense on December 8, 2020, and initially pled not guilty to the charge. The trial court scheduled status and scheduling conferences. After several continuances, the scheduling conference was reset to February 12, 2021. {¶ 3} On the date of the pretrial conference, Worthen changed her ple a from not guilty and entered a guilty plea to the charged offense. The t rial court conducted a Crim.R. 11 plea hearing, during which Worthen stated that she w as 19 years old, had attended school through 11th grade, and was neither under the i nfluence of drugs or alcohol nor had difficulty understanding the proceedings. Wort hen indicated that she was serving a prison sentence; she had completed her supervisio n in a separate juvenile

case.-3- {¶ 4} The trial court informed Worthen of the maximum possible penalt ies for harassment by an inmate, which included a prison sentence of 6, 7, 8, 9, 10, 11, or 12 months in prison. The court further told Worthen that she was eligible for community control sanctions, but it was going to sentence her to 12 month s in prison, concurrently with the sentence she was then serving in Case No. 2020-CR-604. Worthen told the

court that she did not understand what that meant. The court e xplained, “You’re going to do extra time. But between now and the time you finish your sentence that Judge Dankof gave you on the assault on a peace officer case, you’ll be earning credit on both cases.” When Worthen asked what her “out date” would be, the c ourt responded, “I don’t know what your out date will be because – I would suspect your out date would be a year from now less one day [of jail time credit].” After initially expressing surprise at her additional incarceration, Worthen stated that she wanted to pro ceed with her plea. {¶ 5} The court then explained the effect of a guilty plea and the co nstitutional rights that Worthen was waiving by her plea. Worthen expressed that she understood. The prosecutor read the facts underlying the offense, as allege d in the indictment, and Worthen, after first stating that she did not agree, indicated that they were true. Worthen reiterated that she wanted to enter a plea of guilty, and the c ourt accepted her plea as knowing, intelligent, and voluntary. {¶ 6} The trial court immediately proceeded to sentencing. Neither d efense counsel nor Worthen spoke on Worthen’s behalf. The court impos ed sentence, stating in part: Ma’am, after considering the purposes and principles of sentenc ing, the seriousness and recidivism factors, and I do have your pre-sent ence-4- investigation from the case I had with you previously in case n umber 19- CR-3203, because that does give me your juvenile history in add ition, I am going to sentence you to 12 months at the Ohio Reformatory for Women. You’ll be given all applicable jailtime credit which is one day . That will be served concurrently with -- just a minute, let me get the case number. With

case number 20-CR-604. All costs will be waived. The trial court’s judgment entry, which was filed on February 1 8, 2021, was consistent with its oral pronouncement. {¶ 7} Worthen appeals from the trial court’s judgment.

II. Review of Worthen’s Sentence {¶ 8} In her sole assignment of error, Worthen claims that the trial court “failed to adequately consider the sentencing statutes pursuant to ORC §§ 2929.11-2929.12, abusing its discretion in sentencing Appellant.” Worthen argue s that the trial court failed to consider all of the relevant factors and, instead, considere d only those factors that were

unfavorable to her. She asserts that the trial court should ha ve indicated how it weighed the sentencing factors, that her conduct was less serious than conduct normally constituting the offense, and that there were mitigating circum stances, such as her age and level of education. Upon review of the record, we find no error in the court’s

consideration of R.C. 2929.11 and R.C. 2929.12. {¶ 9} “The trial court has full discretion to impose any sentence wit hin 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.” State v. King , 2013- Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). In determining an appropriate sentence, the-5- trial court may consider information beyond that strictly relat ed to the conviction offense.

State v. Bowser , 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 15 (2d Dist.). This is because the court is no longer concerned with the narro w issue of guilt. Bowser at ¶ 14; State v. Wiles , 2d Dist. Clark No. 2017-CA-69, 2018-Ohio-3077, ¶ 19. A court may consider, for example, the circumstances underlying the off ense, information contained in a presentence investigation report, hearsay eviden ce, prior arrests, facts supporting a charge that resulted in an acquittal, and facts re lated to a charge that was dismissed under a plea agreement. E.g., State v. McNeil, 2d Dist. Clark No. 2019-CA51, 2020-Ohio-3202, ¶ 14; State v. Bodkins , 2d Dist. Clark No. 2010-CA-38, 2011-Ohio1274, ¶ 43; Wiles at ¶ 19. {¶ 10} However, in exercising its discretion, a trial court must consi der the statutory policies that apply to every felony offense, including those se t out in R.C. 2929.11 and

R.C. 2929.12. State v. Leopard , 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. {¶ 11} R.C. 2929.11 requires trial courts to be guided by the overridi ng purposes of felony sentencing. Those purposes are “to protect the publi c from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determi nes accomplish those purposes without imposing an unnecessary burden on state or loc al government resources.” R.C. 2929.11(A). The court must “consider the nee d for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public , or both.” Id . R.C.-6- 2929.11(B) further provides that “[a] sentence imposed for a fe lony shall be reasonably calculated to achieve the three overriding purposes of felony s entencing * * *, commensurate with and not demeaning to the seriousness of the o ffender’s conduct and its impact upon the victim, and consistent with sentences impos ed for similar crimes committed by similar offenders.” {¶ 12} R.C. 2929.12(B) sets forth nine factors indicating that an offe nder’s conduct is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth four factors indicating that an offender’s conduct is less seri ous than conduct normally constituting the offense. R.C. 2929.12(D) and (E) each lists f ive factors that trial courts are to consider regarding the offender’s likelihood of committi ng future crimes. Finally, R.C. 2929.12(F) requires the sentencing court to consider the o ffender’s military service record, if any. {¶ 13} In reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Und er that statute, an appellate court may increase, reduce, or modify a s entence, or it may vacate the sentence and remand for resentencing, only if it “clearly a nd convincingly” finds either (1) that the record does not support certain specified findings or (2) that the sentence imposed is contrary to law. State v. Huffman , 2d Dist. Miami No. 2016-CA-16, 2017- Ohio-4097, ¶ 6. {¶ 14} The Ohio Supreme Court recently stated that R.C. 2953.08(G)(2)( b) “does not provide a basis for an appellate court to modify or vacate a sentence based on its view that the sentence is not supported by the record under R.C . 2929.11 and 2929.12.”-7- State v. Jones , 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. “W hen reviewing felony sentences that are imposed solely after consid ering the factors in R.C. 2929.11 and R.C. 2929.12, we do not analyze whether those sente nces are unsupported by the record.” State v. McDaniel , 2d Dist. Darke No. 2020-CA-3, 2021-Ohio-1519, ¶ 11, citing State v. Dorsey , 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18; Jones at ¶ 26-29. Instead, “[w]e simply must determine whether those se ntences are contrary to

law.” Dorsey at ¶ 18. “A sentence is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and t he sentencing factors set forth in R.C. 2929.12.” (Citation omitted.) State v. Brown , 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.). {¶ 15} In this case, the trial court complied with its obligation to c onsider the statutory policies that apply to every felony offense, includin g those set out in R.C. 2929.11 and R.C. 2929.12. The court expressly stated at senten cing that it had considered the purposes and principles of sentencing and the se riousness and recidivism factors. The court informed the parties that it had considered Worthen’s presentence investigation report from a prior case, Case No. 2019-CR-3203. Although the court did not make explicit findings regarding each of the sentencing fac tors, there is nothing in the record to suggest that the court failed to consider each of the m. To the extent that Worthen claims that her 12-month sentence is not supported by t he record under R.C. 2929.11 and R.C. 2929.12, that argument is precluded by Jones

. {¶ 16} Worthen’s assignment of error is overruled.

III. Conclusion-8- {¶ 17} The trial court’s judgment will be affirmed.

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TUCKER, P. J. and HALL, J., concur.

Copies sent to: Mathias H. Heck, Jr. J. Joshua Rizzo Thomas M. Kollin Hon. Mary Katherine Huffman