[Cite as State v. Craig, 2019-Ohio-1092.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BRADLEY ALAN CRAIG,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 18 BE 0001
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 17 CR 309
BEFORE:
Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Dan Fry, Belmont County Prosecuting Attorney and Atty. Joseph A. Vavra,
Assistant Prosecuting Attorney, 147-A West Main Street, St. Clairsville, Ohio 43950,
for Plaintiff-Appellee
Atty. Meagan Todaro Kirchner, Shaheen Law Group, P.O. Box 579, Saint Clairsville,
Ohio 43950, for Defendant-Appellant.
Dated: March 21, 2019
WAITE, P.J.
–2–
{¶1} Appellant Bradley Alan Craig appeals a December 19, 2017 Belmont
County Common Pleas Court judgment entry convicting him of pandering obscenity
involving a minor. Appellant argues that the trial court’s imposition of a maximum
sentence is contrary to law. For the reasons provided, Appellant’s argument is without
merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} On November 11, 2017, the state filed a bill of information charging
Appellant with a sole count of pandering obscenity involving a minor, a felony of the fourth
degree in violation of R.C. 2907.321(A)(5). Appellant waived indictment and pleaded
guilty to the sole offense as charged. The state agreed to remain silent at sentencing.
{¶3} On December 18, 2017, the trial court held a sentencing hearing. Defense
counsel recommended a community control sanction at the Eastern Ohio Correctional
Center (“EOCC”) in lieu of a prison sentence. Pursuant to the Crim.R. 11 plea agreement,
the state remained silent. The trial court noted that Appellant had been charged, although
not convicted of all, twenty-seven offenses that were included within the pre-sentence
investigation report (“PSI”) as an adult. The trial court also noted the severity of the instant
offense and the harm done to the victims, who were children. Although the trial court did
not find the existence of any of the nine R.C. 2929.13(B)(2) factors, the court sentenced
Appellant to the maximum sentence, eighteen months of incarceration, with credit for fifty-
two days served. Although Appellant states that he received five years of postrelease
control, the record clearly indicates that the trial court imposed a three-year postrelease
control period. Additionally, Appellant was classified as a tier two offender for registration
purposes.
Case No. 18 BE 0001
–3–
ASSIGNMENT OF ERROR
The trial court erred in sentencing the defendant-appellant, Bradley Alan
Craig, to a maximum term of eighteen (18) months in the penitentiary, with
a five (5) year term of post release control, following his conviction for a
single count of “Pandering Obscenity Involving a Minor,” a violation of R.C.
§ 2907.321(A)(5), a felony of the fourth degree.
{¶4} Appellant argues that the trial court improperly considered twenty-seven
offenses that were included within his PSI report. Appellant urges that not all of these
offenses resulted in a conviction. Appellant contends it is clear the sentence imposed by
the trial court improperly relied on these charges as the court specifically found that none
of the R.C. 2929.13(B)(2) factors existed. Additionally, Appellant argues that the trial
court should have focused on his remorse and the potential benefit of being sentenced to
the EOCC.
{¶5} In response, the state argues that the trial court expressly stated it
considered all of the relevant sentencing statutes. The state notes that the court also
stated that it considered Appellant’s lengthy criminal record and the fact that the victim in
this case is a minor.
{¶6} An appellate court is permitted to review a felony sentence to determine if
it is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 23. Pursuant to Marcum, “an appellate court may vacate or modify any sentence
that is not clearly and convincingly contrary to law only if the appellate court finds by clear
and convincing evidence that the record does not support the sentence.” Id.
{¶7} Pursuant to R.C. 2929.13(B)(1)(b):
Case No. 18 BE 0001
–4–
The court has discretion to impose a prison term upon an offender who is
convicted of or pleads guilty to a felony of the fourth or fifth degree that is
not an offense of violence or that is a qualifying assault offense if any of the
following apply:
***
(v) The offense is a sex offense that is a fourth or fifth degree felony
violation of any provision of Chapter 2907. of the Revised Code.
{¶8} Here, Appellant was convicted of a sex offense that is a fourth degree felony
in violation of Chapter 2907 of the revised code. Thus, the trial court had discretion to
impose a prison term.
{¶9} Appellant next argues that the trial court improperly considered the twenty-
seven offenses contained in his PSI, as not all of those charges resulted in convictions.
We have acknowledged that “[i]t is well established that sentencing courts may consider
arrests and even prior allegations that did not result in conviction before imposing
sentence.” State v. Martin, 7th Dist. No. 16 MA 0160, 2018-Ohio-862, ¶ 7, citing State v.
Hutton, 53 Ohio St.3d 36, 43, 559 N.E.2d 432 (1990). As such, the trial court properly
considered Appellant’s prior criminal history.
{¶10} Accordingly, Appellant’s sole assignment of error is without merit and is
overruled.
Conclusion
{¶11} Appellant argues that the trial court’s imposition of a maximum sentence is
contrary to law. As the trial court properly considered the relevant sentencing statutes,
Appellant’s argument is without merit and the judgment of the trial court is affirmed.
Case No. 18 BE 0001
–5–
Donofrio, J., concurs.
D’Apolito, J., concurs.
Case No. 18 BE 0001
[Cite as State v. Craig, 2019-Ohio-1092.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.