[Cite as State v. Jones, 2012-Ohio-3599.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24873
vs. : T.C. CASE NO. 11CR1635
CHARLES J. JONES, JR. : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
.........
OPINION
Rendered on the 10th day of August, 2012.
.........
Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Atty. Reg. No. 0067685, Asst.
Pros. Attorney, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee
Thomas W. Kidd, Atty. Reg. No. 0066359, P.O. Box 231, Harveysburg, OH 45032
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Defendant Charles Jones appeals his three-year sentence for child endangering,
a felony of the third degree.
{¶ 2} In June 2011, Defendant was indicted on one count each of aiding and abetting
in abduction (restraint), R.C. 2905.02(A)(2), and child endangering (torture/cruel abuse), R.C.
2919.22(B)(2). Both charges arose from crimes committed two months earlier against a
three-year-old child. In September 2011, a second indictment was issued charging abduction
and child endangering, alleging that Defendant was the principal offender. Later that month,
Defendant pled guilty to both charges in the second indictment, and the State dismissed the
first indictment.
{¶ 3} The trial court agreed to delay sentencing until after the end of the month,
when changes in R.C. 2929.14 became effective, reducing the maximum sentence that
Defendant could receive from five years to three years. The two convictions merged, and the
trial court sentenced Defendant to three years in prison on the child endangering conviction.
{¶ 4} Defendant filed a timely notice of appeal raising the following assignment of
error:
“THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE PRINCIPLES OF
SENTENCING AND RECIDIVISM OF THE OFFENDER IN SENTENCING MR. JONES
TO THE MAXIMUM OF 36 MONTHS IN PRISON.”
{¶ 5} In State v. Barker, 183 Ohio App.3d 414, 2009-Ohio-3511, 917 N.E.2d 324
(2d Dist.), at ¶ 36-37, we wrote:
The trial court has full discretion to impose any sentence within the authorized statutory range,
and the court is not required to make any findings or give its reasons for imposing maximum,
consecutive, or more than minimum sentences. State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, at paragraph 7 of the syllabus. Nevertheless, in exercising
its discretion the trial court must consider the statutory policies that apply to every felony
offense, including those set out in R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, at ¶ 37.
When reviewing felony sentences, an appellate court must first determine whether the
sentencing court complied with all applicable rules and statutes in imposing the sentence,
including R.C. 2929.11 and 2929.12, in order to find whether the sentence is contrary to law.
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. If the sentence is not
clearly and convincingly contrary to law, the trial court’s decision in imposing the term of
imprisonment must be reviewed under an abuse of discretion standard. Id.
{¶ 6} Defendant does not dispute that his three year sentence falls within the permissible statutory range for
hird degree felonies. R.C. 2929.14(A)(3). Instead, Defendant argues that the court failed to apply the factors in R.C.
929.11 and 2929.12, which set out the purposes and principles of sentencing and the seriousness and recidivism factors
he court must consider when selecting a sentence to impose.
{¶ 7} A sentence is not contrary to law when the sentencing court expressly stated that it considered those
tatutory factors. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.
{¶ 8} Prior to imposing sentence, the trial court reviewed the pre-sentence
investigation report, the sentencing memoranda, and a victim impact statement prepared by
the victim’s father. The court also considered the statements made by Defendant and his
attorney. When the trial court imposed sentence, the court explained that it was doing so
after “considering the purposes and principles of sentencing, as well as the seriousness and
recidivism factors of the Revised Code, including using the minimum sanctions necessary to
accomplish these purposes without unnecessarily burdening governmental resources * * *.”
The court having so stated, we find that the sentence imposed is not contrary to law for failure
to apply the R.C. 2929.11 and 2929.12 sentencing factors.
{¶ 9} Even when the statutory sentencing factors were applied, the court may abuse
the discretion R.C. 2929.11 and 2929.12 confer. “A trial court has broad discretion in
sentencing a defendant and a reviewing court will not interfere with the sentence unless the
trial court abused its discretion.” State v. Bray, 2d Dist. Clark No. 2010CA14,
2011-Ohio-4660, ¶ 28, citations omitted. “Abuse of discretion” has been defined as an
attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19
Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985). It is to be expected that most instances of
abuse of discretion will result in decisions that are simply unreasonable, rather than decisions
that are unconscionable or arbitrary.
{¶ 10} Defendant argues that the trial court abused its discretion when it imposed a
maximum three year prison sentence, absent evidence of any injuries the victim suffered, and
any specific findings by the court supporting the sentence it imposed. Defendant cites our
statement in State v. Gatewood, 2d Dist. Clark No. 2010CA18, 2012-Ohio-202, at ¶ 75, that
“[i]t is vital to avoid both the reality and ‘perception that no clear standards are being applied,
and that the rule of law is imperiled by sentences imposed for no discernible reason other that
the subjective reactions of the sentencing judge.’ State v. Nichols, Clark App.No.
2010CA60, 2011-Ohio-4671, quoting Harmelin v. Michigan (1991), 501 U.S. 957, 1007, 111
S.Ct. 2680, 115 N.E.2d 836.”
{¶ 11} Gatewood is distinguishable. In Gatewood, the sentencing court assumed
facts that were not demonstrated by the record when the sentence was imposed, Id., at ¶ 72,
and even weighed against the defendant the fact that he had not pled guilty and instead
exercised his constitutional right to a trial of the charges against him. Id. At ¶ 76. No such
deviations from the duties of a sentencing court are demonstrated here.
{¶ 12} Defendant’s argument that the court’s failure to state its reason is an abuse of
discretion fails in view of the holding of Foster that the court is not required to state its
reasons. Furthermore, and whether the court did or did not state its reasons, it is the burden
of an appellant to show how, with respect to the record before it, the court abused its
discretion. Defendant offers no basis to so find, absent the court’s failure
5
to state its reasons and the lack of any physical injuries suffered by the victim. However, in
and of itself, that latter matter does not demonstrate an abuse of discretion. Further, we note
that the court purposely delayed imposition of Defendant’s sentence in order to avoid the prior
five-year maximum available when Defendant was convicted.
{¶ 13} The assignment of error is overruled. The judgment of the trial court will be
affirmed.
DONOVAN, J., And FROELICH, J., concur.
Copies mailed to:
Johnna M. Shia, Esq.
Thomas W. Kidd, Esq.
Hon. Mary Wiseman