[Cite as State v. Fields, 2020-Ohio-5538.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-19
:
v. : Trial Court Case No. 2019-CR-826
:
MALCOLM FIELDS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 4th day of December, 2020.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield,
Ohio 45502
Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020 and CATHERINE BREAULT, Atty. Reg. No.
0098433, 130 West Second Street, Suite 2150, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
.............
DONOVAN, J.
-2-
{¶ 1} Defendant-appellant Malcolm Fields appeals his conviction for operating a
vehicle while under the influence of alcohol or drugs (OVI), in violation of R.C.
4511.19(A)(2)(b) (three or more prior offenses), a felony of the fourth degree. Fields filed
a timely notice of appeal on April 16, 2020.
{¶ 2} The incident which formed the basis for Fields’s conviction occurred in the
early morning hours of October 20, 2019, when Officer James Johnson was patrolling in
the area of Limestone Street in Springfield, Ohio, and he observed a black Honda Civic
parked in the road, not moving. Officer Johnson testified that he pulled up alongside the
vehicle and observed a male, later identified as Fields, sitting in the driver’s seat with his
head down. After approximately one minute, the driver of the vehicle woke up and
started driving northbound on Limestone Street. Officer Johnson followed the vehicle.
{¶ 3} Shortly thereafter, Officer Johnson observed Fields run a red light as he
turned from Limestone Street onto Leffels Lane. Johnson testified that Fields quickly
turned into the parking lot of a BP gas station located at the corner of South Limestone
Street and Leffels Lane without using a turn signal. Fields then pulled the vehicle up to
a gas pump. At this point, Officer Johnson activated his overhead lights and initiated a
traffic stop.
{¶ 4} As soon as the Civic came to a stop next to the gas pump, Fields opened the
driver’s side door of the vehicle. Officer Johnson testified that he instructed Fields to
close the door, but Fields refused, asking in a loud voice why he was being stopped.
Officer Johnson requested backup and, after a short time, Officer Justin Lowe arrived at
the scene. Once Officer Lowe arrived, he and Officer Johnson approached the Civic and
observed Fields slumped over in the driver’s seat. Officer Johnson testified that he made
-3-
contact with Fields and requested his driver’s license. Fields refused. Johnson then
requested Fields’s name and date of birth but, again, Fields refused the request.
{¶ 5} While interacting with Fields, Officer Johnson observed that his eyes were
glassy and bloodshot. Johnson also noticed that Fields smelled strongly of alcohol and
that Fields’s speech was slurred. Officer Johnson testified that, based upon his
experience and training, he believed that Fields was intoxicated.
{¶ 6} At this point, Fields was advised that he was under arrest, and he was
ordered to exit the vehicle. Officer Johnson testified that he initially intended to arrest
Fields on a charge of obstruction. Fields refused to exit the vehicle, and Officer Lowe
testified that he observed Fields attempt to reach under the driver’s seat of the vehicle.
Officer Johnson testified that, at this point, he and Officer Lowe had to forcibly remove
Fields from the vehicle. As the officers tried to place him in the rear of a cruiser, they
noticed that Fields was unstable on his feet and very aggressive. Johnson testified that
he again noticed the strong odor of alcohol emanating from Fields while Fields was yelling
at the officers prior to being placed in the cruiser. Immediately after placing Fields in the
cruiser, Officer Johnson informed him of his Miranda rights. We note that, during cross-
examination, Johnson testified that it was only after Fields was under arrest that he
noticed the strong odor of alcohol coming from Fields. Officer Johnson, who is an
African-American, testified that Fields referred to him using racial slurs.
{¶ 7} After being transported to the Clark County Jail, Fields refused to provide a
breath sample or to comply with any other testing. Additionally, Fields refused to sign
the BMV 2255 form (related to chemical testing) after being read the form by the officers.
{¶ 8} On December 16, 2019, Fields was charged with two counts of OVI. Fields
-4-
was arraigned on January 3, 2020, and the trial court released him on his own
recognizance. On January 30, 2020, Fields filed a motion to suppress, and the trial court
scheduled a hearing on the motion on February 14, 2020. Before the hearing was held,
however, Fields withdrew his motion to suppress.
{¶ 9} The case proceeded to a jury trial on February 26, 2020. Fields was found
guilty of the charged offenses, and the trial court ordered a presentence investigation
report (PSI). On March 16, 2020, the trial court merged the two OVI counts1 and ordered
Fields to serve 120 days in prison in addition to another 30 months of incarceration
pursuant to the repeat offender provisions of R.C. 4511.19(G)(1)(d)(i). After sentencing,
Fields filed motions to the stay his sentence pending the outcome of his appeal with the
trial court and with this Court; both motions were denied.
{¶ 10} Fields now appeals from his conviction.
{¶ 11} Fields’s first assignment of error is as follows:
MR. FIELDS WAS DENIED HIS RIGHT TO A FAIR TRIAL BY TRIAL
COUNSEL’S WITHDRAWAL OF DEFENDANT’S MOTION TO
SUPPRESS.
{¶ 12} In his first assignment, Fields contends that he received ineffective
assistance of counsel when his trial attorney withdrew his motion to suppress from
consideration by the trial court prior to the scheduled hearing on that motion.
{¶ 13} We review alleged instances of ineffective assistance of trial counsel under
the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
1
The State elected to proceed to sentencing on Count II of the indictment, a violation of
R.C. 4511.19(A)(2)(b).
-5-
2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial
counsel is entitled to a strong presumption that his or her conduct falls within the wide
range of reasonable assistance. Strickland at 688. “To reverse a conviction based on
ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell
below an objective standard of reasonableness and that his errors were serious enough
to create a reasonable probability that, but for the errors, the result of the trial would have
been different. Id. Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel's perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel.” (Citation omitted.) State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-
Ohio-493, ¶ 31.
{¶ 14} A defendant is not deprived of effective assistance of counsel when counsel
chooses, for strategic reasons, not to pursue every possible tactic. State v. Brown, 38
Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective
assistance of counsel is not whether counsel pursued every possible defense; the test is
whether the defense chosen was objectively reasonable. Strickland at 688. A reviewing
court may not second-guess decisions of counsel which can be considered matters of
strategy. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable strategic
and tactical decisions may not form the basis of a claim for ineffective assistance of
counsel, even if, in hindsight, it looks as if a better strategy had been available. State v.
Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶ 15} In State v. Caldwell, 2d Dist. Greene No. 2013-CA-76, 2015-Ohio-2551, we
-6-
stated the following:
“ ‘[F]ailure to file a suppression motion does not constitute per se
ineffective assistance of counsel.’ ” State v. Madrigal, 87 Ohio St.3d 378,
389, 721 N.E.2d 52 (2000), quoting Kimmelman v. Morrison, 477 U.S. 365,
384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Likewise, withdrawal of a
motion to suppress does not “constitute per se ineffective assistance of
counsel.” State v. Stringer, 12th Dist. Butler No. CA2012-04-095, 2013-
Ohio-988, ¶ 14, citing State v. Dominguez, 12th Dist. Preble No. CA2011-
09-010, 2012-Ohio-4542, ¶ 20.
“Instead, the decision to withdraw a motion to suppress ‘constitutes
ineffective assistance of counsel only when the record establishes that the
motion would have been successful.’ ” Id., quoting Dominguez at ¶ 20,
which in turn, cites State v. Robinson, 108 Ohio App.3d 428, 433, 670
N.E.2d 1077 (3d Dist.1996). Accord State v. Spencer, 10th Dist. Franklin
No. 03AP-579, 2004-Ohio-4102, ¶ 23. “Filing a motion to suppress is not
without risks, and the fact that counsel filed a motion for leave to file the
motion to suppress, and later withdrew that motion, is compelling evidence
of a tactical decision.” Madrigal at 389.
Caldwell at ¶ 43-44.
{¶ 16} The record in this case is devoid of any evidence indicating that Fields’s
motion to suppress would have succeeded. Fields initially argues that his motion to
suppress would have been successful because the officers had no lawful cause to detain
him. However, the record establishes that Officer Johnson had a reasonable suspicion
-7-
that Fields was intoxicated because of his slurred speech, the strong odor of alcohol
emanating from him, and his bloodshot, glassy eyes. Furthermore, the record
establishes that Fields completely refused to cooperate with the officers, and when told
to exit the vehicle, he “furtively” attempted to reach under the seat. Based upon the
foregoing, the officers had ample reason to lawfully detain Fields.
{¶ 17} Fields also argues that his motion to suppress would have been successful
because the officers failed to properly administer field sobriety tests. This argument fails
because the record establishes that Fields refused to participate in any tests and had to
be forcibly removed from the vehicle and placed in the rear of a police cruiser. Fields
also argues that any statements he made to the police were obtained unconstitutionally,
but the record establishes that Officer Johnson informed Fields of his Miranda rights
immediately after he was arrested and placed in the rear of the cruiser.
{¶ 18} Fields further argues that his arrest for obstruction was without probable
cause. Officer Johnson testified that he initially sought to arrest Fields for obstruction,
but Fields was ultimately arrested for OVI after he was forcibly removed from the vehicle,
based upon the officer’s observations and Fields’s conduct and overall demeanor. More
importantly, Fields did not raise this argument in his motion to suppress before the trial
court.
{¶ 19} Lastly, Fields argues that the motion to suppress would have been
successful because the police did not have probable cause to arrest him for OVI.
"Probable cause" supporting an arrest exists where the facts and circumstances within
the officers' knowledge and of which they have reasonably trustworthy information are
sufficient in themselves to cause a person of reasonable caution to believe that an offense
-8-
has been or is being committed. State v. Davis, 2017-Ohio-5613, 94 N.E.3d 194, ¶ 43 (2d
Dist.), citing Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed.
1879 (1949).
{¶ 20} As previously discussed, the officers pointed to a significant number of
factors that indicated to them that Fields was intoxicated; specifically, he was slumped
over in the vehicle, his speech was slurred, there was a strong odor of alcohol emanating
from him, and he had bloodshot, glassy eyes. Furthermore, Fields completely refused
to cooperate with the officers and was unstable on his feet when they moved him to the
police cruiser.
{¶ 21} The record in the case before us is devoid of any evidence indicating that
Fields’s motion to suppress would have succeeded. Therefore, we cannot find that his
trial counsel was ineffective for withdrawing the motion to suppress in what could very
well have been a tactical decision.
{¶ 22} Fields’s first assignment of error is overruled.
{¶ 23} Fields’s second assignment of error is as follows:
THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND SUFFICIENCY OF THE EVIDENCE AND SHOULD BE
REVERSED BECAUSE IT VIOLATES THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF
OHIO.
{¶ 24} In his second assignment, Fields argues that his conviction for OVI was
against the manifest weight of the evidence and that the State failed to adduce sufficient
-9-
evidence to support his conviction of that offense.
{¶ 25} This Court has previously noted:
When a conviction is challenged as being against the weight of the
evidence, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider witness credibility, and
determine whether, in resolving conflicts in the evidence, the trier of fact
“clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In a manifest-
weight analysis, the credibility of the witnesses and the weight to be given
to their testimony are primarily for the trier of facts to resolve. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “Because the
factfinder * * * has the opportunity to see and hear the witnesses, the
cautious exercise of discretionary power of a court of appeals to find that a
judgment is against the manifest weight of the evidence requires that a
substantial deference be extended to the factfinder's determinations of
credibility. The decision whether, and to what extent, to credit the
testimony of particular witnesses is within the peculiar competence of the
factfinder, who has seen and heard the witnesses.” State v. Lawson, 2d
Dist. Montgomery No. 16288, 1997 WL 477684, *5 (Aug. 22, 1997). This
court will not substitute its judgment for that of the trier of fact on the issue
of witness credibility unless it is patently apparent that the trier of fact lost
its way. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
-10-
691510 (Oct. 24, 1997). * * *
State v. Nelson, 2d Dist. Greene No. 2014-CA-7, 2015-Ohio-113, ¶ 29.
{¶ 26} Regarding the sufficiency of the evidence, this Court has previously stated:
“A sufficiency of the evidence argument disputes whether the State
has presented adequate evidence on each element of the offense to allow
the case to go to the jury or sustain the verdict as a matter of law.” State v.
Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State
v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). When reviewing
whether the State has presented sufficient evidence to support a conviction,
“the relevant inquiry is whether any rational finder of fact, after viewing the
evidence in the light most favorable to the State, could have found the
essential elements of the crime proven beyond a reasonable doubt.” State
v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A
guilty verdict will not be disturbed on appeal unless, “reasonable minds
could not reach the conclusion reached by the trier-of-fact.” Id.
State v. Wilson, 2d Dist. Montgomery No. 27001, 2016-Ohio-7329, ¶ 6.
{¶ 27} R.C. 4511.19(A)(1)(a) states that “[n]o person shall operate any vehicle,
streetcar, or trackless trolley within this state, if, at the time of the operation, * * * [t]he
person is under the influence of alcohol, a drug of abuse, or a combination of them.” R.C.
4511.19(A)(2)(b) further provides that a person who has been previously convicted of OVI
within 20 years shall not operate a vehicle under the influence of alcohol or drugs and
shall not, upon being asked by a law enforcement officer to submit to a chemical test or
-11-
tests and being advised by the officer of the consequences of refusal or submission to
the test or tests, refuse to submit to the test or tests.
{¶ 28} Accordingly, to establish the violation of R.C. 4511.19(A)(2)(b), the State
was required to prove (in addition to the prior conviction) that Fields had operated a
vehicle under the influence of drugs or alcohol and that he had refused to submit to a
chemical test. Here, Fields argues that that his OVI convictions were against the
manifest weight of the evidence and not supported by sufficient evidence because no
field sobriety tests were performed and no breathalyzer test was administered. Fields
also argues that Officer Johnson’s trial testimony was not credible and was inconsistent
with his police report. Finally, Fields argues that, because the video of Officer Johnson’s
cruiser camera did not have audio, there was insufficient evidence that his speech was
slurred or that he was yelling and otherwise acting in a drunken manner.
{¶ 29} Officer Johnson testified that he observed a black Honda Civic parked in
the road, not moving; Johnson pulled alongside the vehicle and observed Fields in the
driver’s seat with his head down. After following him for a short time, Officer Johnson
observed Fields run a red light. Johnson also testified that Fields quickly turned into the
parking lot of a gas station without using a turn signal and pulled the vehicle up to a gas
pump. At this point, Officer Johnson activated his overhead lights and initiated a traffic
stop.
{¶ 30} As soon as the Civic came to a stop next to the gas pump, Fields opened
the driver’s side door of the vehicle. Officer Johnson testified that he instructed Fields to
close the door, but Fields refused, asking in a loud voice why he was being stopped.
Johnson requested backup, and Officer Lowe arrived at the scene soon thereafter. Once
-12-
Officer Lowe arrived, he and Officer Johnson approached the Civic and observed Fields
slumped over in the driver’s seat. Officer Johnson then asked for a driver’s license and
other identifying information, which Fields refused to give.
{¶ 31} While interacting with Fields, Officer Johnson observed that his eyes were
glassy and bloodshot. Johnson also noticed that Fields smelled strongly of alcohol and
his speech was slurred. Officer Johnson testified that, based upon his experience and
training, he believed that Fields was intoxicated. At this point, Fields was advised that
he was under arrest and was ordered to exit the vehicle, which he refused do. Officer
Lowe testified that he observed Fields attempt to reach under the driver’s seat of the
vehicle. Officer Johnson testified that, at this point, he and Officer Lowe had to forcibly
remove Fields from the vehicle. As the officers placed him in the rear of a cruiser, they
noticed that Fields was unstable on his feet and very aggressive. Officer Johnson
testified that he again noticed the strong odor of alcohol emanating from Fields while
Fields was yelling at the officers prior to being placed in the cruiser. Finally, upon being
transported to the Clark County Jail, Fields refused to submit a breath sample or comply
with any other testing and refused to sign the BMV 2255 form (related to chemical testing)
after being read the form by the officers. In other words, two police officers testified to
numerous physical and behavioral indications of intoxication, including the odor of an
alcoholic beverage, slurred speech, bloodshot and glassy eyes, argumentativeness, and
unsteady gait. The jury “as finder of fact, may believe all, part, or none of a witness's
testimony,’ ” and it was entitled to believe the officers’ testimony. State v. Flores-Lopez,
2017-Ohio-690, 85 N.E.3d 534, ¶ 63 (2d Dist.).
{¶ 32} For the foregoing reasons, we conclude that a rational finder of fact, after
-13-
viewing the evidence in a light most favorable to the State, could have found that Fields
was guilty of OVI. Additionally, having reviewed the entire record, we cannot conclude
that the trier of fact clearly lost its way and created a manifest miscarriage of justice. The
jury clearly credited the testimony of the State's witnesses, and we defer to its assessment
of credibility. Therefore, we conclude that Fields’s convictions were not against the
manifest weight of the evidence and were supported by sufficient evidence.
{¶ 33} Fields’s second assignment of error is overruled.
{¶ 34} Fields’s third and final assignment of error is as follows:
THE JUDGEMENT OF THE TRIAL COURT SHOULD BE REVERSED
BECAUSE THE RECORD DOES NOT CLEARLY AND CONVINCINGLY
SUPPORT THE APPELLANT’S SENTENCE.
{¶ 35} In his final assignment, Fields contends that the sentence imposed by the
trial court was not clearly and convincingly supported by the record. We disagree.
{¶ 36} As this Court has noted:
When reviewing felony sentences, appellate courts apply the
standard of review found in R.C. 2953.08(G)(2), not an abuse of discretion
standard. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand
for resentencing, only if it “clearly and convincingly” finds either (1) that the
record does not support certain specified findings or (2) that the sentence
imposed is contrary to law.
“The trial court has full discretion to impose any sentence within the
-14-
authorized statutory range, and the court is not required to make any
findings or give its reasons for imposing maximum * * * sentences.” State v.
King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, a trial
court must consider the statutory criteria that apply to every felony offense,
including those set 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. * * * R.C. 2929.12(B) sets forth nine factors indicating that an offender's
conduct is more serious than conduct normally constituting the offense,
whereas R.C. 2929.12(C) sets forth four factors indicating that an offender's
conduct is less serious than conduct normally constituting the offense.
Similarly, R.C. 2929.12(D) and (E) each lists five factors that trial courts are
to consider regarding an offender being more or less likely to commit future
crimes.
Although statutory maximum sentences do not require any of the
findings specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found
it appropriate “for appellate courts to review those sentences that are
imposed solely after consideration of the factors in R.C. 2929.11 and
2929.12 under a standard that is equally deferential to the sentencing court.
That is, 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.” Marcum at ¶ 23.
-15-
State v. Roberts, 2d Dist. Montgomery No. 2018-CA-27, 2019-Ohio-49, ¶ 6-8.
{¶ 37} R.C. 4511.19(G)(1)(d)(i) applies to offenders who have prior OVI offenses.
It authorizes the trial court to impose an additional definite prison term of six to 30 months
and/or community control, on top of any mandatory prison sentence; the mandatory
sentence is either 60 days or 120 days in prison for a fourth-degree felony offense based
on three or four prior convictions within six years or one to five years for a fourth-degree
felony offense based on five or more prior convictions within 20 years. The specific
statutory language of R.C. 4511.19(G)(1)(d)(i) states in pertinent part:
If the court imposes a mandatory prison term, notwithstanding division
(A)(4) of section 2929.14 of the Revised Code, it also may sentence the
offender to a definite prison term that shall be not less than six months and
not more than thirty months and the prison terms shall be imposed as
described in division (G)(2) of section 2929.13 of the Revised Code. * * *
{¶ 38} Fields does not argue that his sentence is contrary to law. Rather, he
argues that the record does not support the sentence imposed by the trial court. As
previously stated, Fields was ordered to serve 120 days in prison in addition to another
30 months of incarceration.
{¶ 39} Initially, we note that this case represents Fields’s fifth OVI conviction since
2010. Fields contends that this is his first felony conviction, however his PSI indicated
that he was convicted of possession of drugs in Clark C.P. No. 05-CR-0577 and received
two years of community control, a $2,000 fine, and a six-month driver’s license
suspension. The court’s docket and the fine of $2,000 in that case indicate that it was
indeed a felony conviction. (Pursuant to R.C. 2929.28(A)(2)(a)(i), the maximum fine for
-16-
a misdemeanor of the first degree is $1,000.)
{¶ 40} Finally, it is clear from the record before us that the trial court crafted Fields’s
sentence based upon his PSI and the pertinent statutory factors, namely those
enumerated in R.C. 2929.11 and 2929.12. While it did not express its reasoning on the
record at the sentencing hearing, the trial court stated its reasoning in the judgment entry:
In State v. Miller, 2d Dist. Clark No. 09CA28, 2010-Ohio-2138, at ¶ 43, we
held that a sentence is not improper merely because the trial court does not
mention either R.C. 2929.11 or 2929.12 at the sentencing hearing. We
noted that the trial court, in its journal entry, stated that it had considered
“the record, oral statements, any victim impact statement and presentence
report prepared, as well as the principles and purposes of sentencing under
Ohio Revised Code Section 2929.11, and [had] balanced the seriousness
and recidivism factors [under] Ohio Revised Code Section 2929.12.” Id.
We further stated that “[b]ecause a trial court speaks only through its journal
entries, [a] sentence is not contrary to law merely because the trial court
failed to cite either statute during the sentencing hearing.” Id., citing State
v. Cave, 2d Dist. Clark No. 09-CA-6, 2010-Ohio-1237, ¶ 10. “Furthermore,
even if there is no specific mention of those statutes in the record, ‘it is
presumed that the trial court gave proper consideration to those statutes.’ ”
Id., quoting State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, at n .4.
State v. Yarbrough, 2d Dist. Clark No. 2014-CA-67, 2015-Ohio-1672, ¶ 9.
{¶ 41} It is within the discretion of the individual judge “to determine the weight to
-17-
assign a particular statutory factor.” State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d
793 (2000). When making such judgments, the sentencing court “is not required to
divorce itself from all personal experiences and make [its] decision in a vacuum.” Id. at
215-216, quoting State v. Cook, 65 Ohio St.3d 516, 529, 605 N.E.2d 70 (1992). In this
case, the trial court considered the statutory factors in R.C. 2929.11 and R.C. 2929.12,
and the individual sentences were within the statutory ranges for those offenses.
Additionally, pursuant to R.C. 2929.12(A), a trial court “has discretion to determine the
most effective way to comply with the purposes and principles of sentencing” set forth in
R.C. 2929.11. Therefore, we find that the trial court’s rationale for sentencing Fields to
120 days in prison in addition to another 30 months of incarceration was not clearly and
convincingly unsupported by the record.
{¶ 42} Fields’s third assignment of error is overruled.
{¶ 43} All of Fields’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
.............
TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
John M. Lintz
Jon Paul Rion
Catherine Breault
Hon. Douglas M. Rastatter