State v. West

[Cite as State v. West, 2022-Ohio-1611.]

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

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29251
:
v. : Trial Court Case No. 2020-CR-510
:
SCOTTY WEST : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 13th day of May, 2022.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
Attorney for Defendant-Appellant

.............

DONOVAN, J.
 -2-

{¶ 1} Scotty West appeals from his conviction, on his guilty pleas, of two counts of

sexual battery in violation of R.C. 2907.03(A)(9), felonies of the third degree; one count

of disseminating matter harmful to juveniles in violation of R.C. 2907.31, a felony of the

fifth degree; and one count of illegal use of a minor in a nudity-oriented material or

performance in violation of R.C. 2907.323(A)(5), also a felony of the fifth degree. The

court sentenced West to 60 months each on the sexual batteries and to 12 months each

on disseminating matter harmful to juveniles and illegal use of a minor in nudity-oriented

material, all to be served concurrently. The court also designated West a Tier III sex

offender with a lifetime registration requirement every 90 days for the sexual batteries

and designated him a Tier I sex offender with a duty to register annually for 15 years for

illegal use of a minor in a nudity-oriented material. We will affirm the judgment of the trial

court.

{¶ 2} On February 20, 2020, West was indicted on the charges listed above, as

well as pandering obscenity involving a minor in violation of R.C. 2907.321(A)(1), a felony

of the second degree. He initially pled not guilty to all the offenses. West filed a motion

to suppress on March 10, 2020. The court held a hearing on the motion on June 25,

2020.1 On January 21, 2021, the court overruled West’s motion to suppress.

{¶ 3} After his motion to suppress was overruled, West entered into a plea

1
On August 12, 2020, West filed an amended motion to suppress, which added an
additional argument related to the search of electronic items seized from his residence.
However, he withdrew this branch of the motion before the trial court ruled on the motion.
 -3-

agreement whereby he pled guilty to four offenses as described above, and the pandering

obscenity charge was dismissed. He was found guilty on his guilty pleas and sentenced

as described above.

{¶ 4} West raises four assignments of error on appeal. We will consider his first

and second assignments of error together. They are as follows:

WEST’S PLEA WAS NOT VOLUNTARY, KNOWING NOR

INTELLIGENT.

THE TRIAL COURT FAILED TO PROPERLY ADVISE WEST OF

POST RELEASE CONTROL FOR THE OFFENSE FOR WHICH HE

ENTERED A GUILTY PLEA AT THE TIME OF HIS PLEA AND

THEREFORE, BOTH HIS PLEA AND SENTENCE SHOULD BE

VACATED.

{¶ 5} In his first assignment of error, West asserts that the trial court failed to

comply with Crim.R. 11(C)(a) when it “affirmatively misadvised” him of the reporting and

notification requirements under R.C. Chapter 2950 for the offenses to which he pled

guilty. West asserts that the court failed to comply with Crim.R. 11(C)(2)(a) when it

“affirmatively misinformed” him of his registration and notification requirements related to

his conviction for illegal use of a minor in a nudity-oriented material or performance.

West relies on State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286,

and he asserts that his plea must be vacated.

{¶ 6} In his second assignment of error, West contends that, although the trial

court properly advised him of the mandatory post-release control that could be imposed
 -4-

for the sexual batteries, the court failed to properly advise him of the mandatory post-

release control on the other offenses to which he was entering a plea. He also asserts

that the court “misadvised” him that he could be required to serve a term of post-release

control on the offense for which he was not entering a plea, “and even so, this information

was incorrect.”

{¶ 7} In response, the State contends that the trial court substantially complied with

the requirements of Crim.R. 11 such that West’s plea was knowing, intelligent, and

voluntary, and that West cannot establish prejudice as a result of the trial court’s “lack of

full compliance.” The State did acknowledge some error:

* * * [T]he trial court was mistaken * * * in suggesting to West that the [sex

offender] designation was only “preliminary” and was somehow subject to

change. The trial court also mistakenly overstated the registration

requirements that would result from West’s conviction for Illegal Use of

Minor in Nudity-Oriented Material under R.C. 2907.323(A)(3), telling West

he would be required to register every 180 days for 25 years when, in

actuality, the registration requirement for that offense (a Tier I offense) is

annually for 15 years. * * *

However, the State contends that, because the trial court “partially, if not substantially,

complied” with the sex-offender notification requirements when taking West’s plea, West

must demonstrate prejudice before his plea can be vacated. It further argues that West

did not argue or presented any evidence that he was prejudiced and would not have

entered his pleas had the trial court accurately informed him of the sex-offender
 -5-

registration requirements during the plea colloquy. The State also notes that West’s plea

form informed him that he would be a Tier III offender.

{¶ 8} In reply, West argues that he does not have to demonstrate prejudice where

the trial court completely failed to “definitively advise then misinformed” him of the

penalties involved. He contends that, although the trial court did advise him of some

registration requirements, the court told West that these were “preliminary,” that a hearing

would be held to determine his “status,” and that he would be advised of his status and

the registration requirements at the time of sentencing. West further asserts that “the

preliminary status and registration requirements given by the trial court were incorrect.”

According to West, “because the trial court failed to advise [him] of the maximum penalty

involving his registration and notification requirements, the trial court failed to comply with

Crim.R. 11(C)(2)(a).”

{¶ 9} At the start of West’s plea hearing, the court ascertained that West was a

U.S. citizen, was not under the influence of drugs or alcohol, and was not on community

control sanctions, probation, parole, or post-release control. The court advised West of

the maximum prison sentences and financial sanctions it could impose as a result of his

guilty pleas, and West acknowledged his understanding.

{¶ 10} The court’s dialogue with West continued:

THE COURT: Also, sir, upon completing any prison sentence, if

there is one, you may be required to serve a period of up to three years of

post-release control on the felonies of the second degree. And on the

felonies of the third degree, you would be required to serve a period of five
 -6-

years of post-release control under the supervision of the parole board.

***

THE COURT: Now, sir, because these are sexual [sic] oriented

offenses, I also need to tell you that -- I think in two of the offenses at least

-- you would be designated as a sexual or child-victim offender in which you

may not reside within 1,000 feet of any school premise. Also, you may be

required to register your residence, place of employment, school attending,

or place of obtaining higher education in person with the sheriff of the county

in which you establish residency.

You may also be required to file a notice of intent to reside. After

the date of your initial registration, you will be required to periodically verify

your residence in person at the sheriff’s office. If you change your address,

school, employment, or place of higher education you will be required to

notify the sheriff and register the new information. You will be required to

fulfill these requirements for a period of time. A hearing will be held at

which time the Court will determine your sexual status - - your sexual

offender status.

It appears right now that on the charge of use of a minor in a nudity-

oriented material, that would be a -- what we call a Tier II level, which means

that you must register every 180 days for 25 years. I do not believe there’s

any requirement on the other at five, I believe?

[THE PROSECUTOR]: That’s correct.
 -7-

THE COURT: * * * And on the felonies of the third degree, on both

of those, the - - it looks like preliminarily you would be designated as what

we call a Tier III offender, which means that you must register every 90 days

for life. Your failure to comply with these registration requirements is a

crime in and of itself, and you [sic] will result in criminal prosecution. And I

will formally tell you what the designation is at the time of sentencing.

Do you understand that?

THE DEFENDANT: Yes, sir.

{¶ 11} The court then advised West of his constitutional rights, and West

acknowledged his understanding of those rights. The prosecutor read statements of

the charges, and West acknowledged his understanding. West indicated that he had

had the opportunity to discuss his case with defense counsel and that he was satisfied

with counsel’s representation. West indicated that his pleas were voluntary, that he

understood the proceedings, and that he had no questions for defense counsel or the

court.

{¶ 12} After West entered his pleas and signed the plea form, the court found that

West understood the nature of his constitutional rights and knowingly, intelligently and

voluntarily waived those rights. The court further found that West understood the nature

of the offenses, the maximum penalties that could be imposed, his eligibility for

community control sanctions, and that he could be required to pay a fine, restitution, court

costs, and other financial sanctions and to register as a sexually-oriented offender.

{¶ 13} West’s plea form for the count of sexual battery stated that he understood
 -8-

that he would be a Tier III Offender. His plea form for illegal use of a minor in nudity

oriented material stated that he understood that he would be a Tier II Offender. The

judgment entry of conviction designated West as a Tier III sex offender on the sexual

batteries, with the requirement that he register every 90 days for life, and designated him

as a Tier I sex offender on illegal use of a minor in a nudity oriented material, with the

requirement that he register annually for 15 years.

{¶ 14} As this Court has noted:

To “satisfy the requirements of due process, a plea of guilty * * * must

be knowing, intelligent, and voluntary, and the record must affirmatively

demonstrate” as much. State v. Chessman, 2d Dist. Greene No. 03-CA-

100, 2006-Ohio-835, ¶ 15, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed.2d 274 (1969); see also State v. Inskeep, 2d Dist. Champaign

No. 2016-CA-2, 2016-Ohio-7098, ¶ 12, citing State v. Brown, 2d Dist.

Montgomery Nos. 24520 & 24705, 2012-Ohio-199, ¶ 13. A trial court

accordingly “must comply with Crim.R. 11(C)” before accepting a plea.

(Citation omitted.) State v. Russell, 2d Dist. Clark No. 10-CA-54, 2011-

Ohio-1738, ¶ 6. Chessman at ¶ 15.

Crim.R. 11(C)(2)(c) requires that a defendant be advised of certain

constitutional rights, and strict compliance with this part of the rule is

required. State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-

211, ¶ 5. Where a trial court fails to comply strictly with Crim.R. 11(C)(2)(c),

the defendant's plea should be deemed invalid on appeal. See State v.
 -9-

Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 16; State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31-32.

Crim.R. 11(C)(2)(a) requires that a trial court determine whether a

defendant is “making [his] plea voluntarily,” and Crim.R. 11(C)(2)(b)

requires that the court inform the defendant of the consequences of the

plea. Given that these parts of the rule relate to nonconstitutional issues,

the “defendant must affirmatively show prejudice to invalidate [his] plea”

where the trial court fails to comply fully with Crim.R. 11(C)(2)(a)-(b) .

(Citation omitted.) State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765,

164 N.E.3d 286, ¶ 14; State v. Rogers, 2020-Ohio-4102, 157 N.E.3d 142,

¶ 16 (12th Dist.). To show that he was prejudiced by the trial court's partial

noncompliance with Crim.R. 11(C)(2)(a)-(b), the defendant must

demonstrate that he “would [not] otherwise have entered the plea.” State

v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5.

Where a trial court completely fails to comply with Crim.R. 11(C)(2)(a)-(b),

however, a defendant's plea should be invalidated on appeal, and the

defendant need not show prejudice. Dangler at ¶ 14; Rogers at ¶ 16.

State v. Jackson, 2d Dist. Montgomery No. 29107, 2021-Ohio-4336, ¶ 6-8.

{¶ 15} Crim.R. 11(C) provides, in part:

(2) In felony cases the court may refuse to accept a plea of guilty or a plea

of no contest, and shall not accept a plea of guilty or no contest without first

addressing the defendant personally either in-person or by remote
 -10-

contemporaneous video in conformity with Crim.R. 43(A) and doing all of

the following:

(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty

involved, and if applicable, that the defendant is not eligible for probation or

for the imposition of community control sanctions at the sentencing hearing.

{¶ 16} As this Court noted in State v. Forsythe, 2d Dist. Miami No. 2019-CA-2,

2019-Ohio-3117:

In State v. Williams, 129 Ohio St.3d 324, 2011-Ohio-3374, 952

N.E.2d 1108, ¶ 16, the Ohio Supreme Court held that the Adam Walsh Act

version of R.C. Chapter 2950 is punitive, not remedial. As a result,

* * * Crim.R. 11 obligates a trial court to advise a defendant who is being

sentenced under the Adam Walsh Act at least of the basic registration

requirement before accepting his plea. * * *

Id. at ¶ 8, quoting State v. Hawkins, 2d Dist. Greene No. 2012-CA-49, 2013-Ohio-2572,

¶ 9.

{¶ 17} As this Court noted in State v. Hall, 2021-Ohio-1894, 173 N.E.3d 166, ¶ 31

(2d Dist.):

* * * In Dangler, the Supreme Court held that the trial court's failure

to separately go over the sex offender registration and in-person verification

requirements, community-notification provisions, and residence restrictions

imposed by the sex offender registration scheme when accepting
 -11-

defendant's no contest plea did not constitute a complete failure to comply

with the criminal procedure rule governing pleas of guilty and no contest in

felony cases. Id. at syllabus. The Dangler court also found that sex

offender duties were punitive in nature and part of the maximum penalty

imposed, but because the duty to enroll in the registry is a non-constitutional

aspect of the defendant's plea, the trial court only had to substantially

comply during the Crim.R. 11 colloquy, and therefore the defendant must

establish that he was prejudiced. * * *

{¶ 18} R.C. 2950.01(E)(1)(d) provides, in part, that a Tier I sex offender is a sex

offender who pleads guilty to a violation of R.C. 2907.323(A)(3), i.e., illegal use of a minor

in nudity oriented material.

{¶ 19} Regarding West’s first assignment of error, we agree with him that the trial

court erred in advising him (both orally and in the plea form) that he was subject to a Tier

II designation for illegal use of a minor in nudity oriented material, when in fact he was

subject to a Tier I designation for that offense. However, the court did inform West that

he was subject to sex offender classification for that offense, as well as to Tier III

classification for the sexual batteries. Thus, the record does not reflect a complete failure

to comply with Crim.R. 11(C)(2)(a). West acknowledged that he understood the

proceedings and that he did not have any questions for defense counsel or the court. In

other words, West acknowledged that he was subject to a registration requirement “every

90 days for life.”

{¶ 20} Further, we cannot conclude that West has shown prejudice; he has failed
 -12-

to even argue that he would not have entered his plea to illegal use of a minor in nudity

oriented material if had he been advised that he was in fact subject to the less onerous

Tier I designation for that count.

{¶ 21} We note that the matter herein is distinct from Hawkins, 2d Dist. Greene No.

2012-CA-49, 2013-Ohio-2572, ¶ 9. The “State incorrectly said during the hearing in

Hawkins that the defendant would be required to register as a Tier II, or lower level

offender, when he was, in fact, required to register under Tier III.” State v. Young, 2d

Dist. Greene No. 2013-CA-22, 2014-Ohio-2213, ¶ 11, citing Hawkins. In Hawkins, we

“found significance of the misstatement about the tier level.” Young at ¶ 24. We

concluded:

* * * [I]n Hawkins, the misinformation resulted in prejudice because

Hawkins was advised he was entering a plea to a Tier II offense (with no

community notification requirements) but actually Tier III applied that

required community notification and lifetime reporting requirements.

As Hawkins illustrates, a trial court giving a defendant incorrect, prejudicial

information may result in a finding of noncompliance.

Id.

{¶ 22} Since the trial court did not completely fail to comply with Crim.R.

11(C)(A)(2) in West’s case, and the record does not demonstrate prejudice as in Hawkins,

we cannot conclude that West’s guilty plea was not knowing, intelligent, and voluntary.

{¶ 23} West’s first assigned error is overruled.

{¶ 24} In his second assignment of error, West asserts that the trial court properly
 -13-

advised him of the post-release control on the third-degree, sexual battery offenses, but

failed to properly advise him of the mandatory post-release control on the two fifth-degree

felonies to which he entered guilty pleas. He also asserts that the trial court “misadvised”

him that he could be required to serve a term of post-release control on the pandering

offenses that was dismissed as part of the plea agreement.

{¶ 25} According to the State, it is obvious that the trial court misspoke when

mentioning post-release control for the pandering offense, because West did not plead

guilty to that offense. The State further argues that, because the trial court correctly

advised West that any prison sentence that was imposed for the sexual batteries would

be followed by a mandatory term of five years post-release control, the trial court

substantially complied with the requirements of Crim.R. 11(C)(2)(a) as to advising West

of the requirements of post-release control.

{¶ 26} The State further asserts that West does not argue that he would not have

pled guilty and would have gone to trial had he known that the mandatory term of five

years post-release control “applied to all four of the counts for which he pleaded guilty,

rather than just two of the counts,” and that such a claim, even if it had been made, “would

have been incredible.” According to the State, “since West was aware that he would be

required to serve a mandatory period of post-release control following his release from

prison on at least two of the counts for which he pled, no prejudice resulted from the trial

court’s error with respect to the remaining, lesser counts.”

{¶ 27} Pursuant to R.C. 2967.28(B)(1), West was subject to five years of post-

release control for each of the felony sex offenses to which he pled guilty. In State v.
 -14-

Taylor, 2d Dist. Montgomery No. 28276, 2019-Ohio-4485, we noted:

Pursuant to R.C. 2967.28(F)(4)(c), “[i]f an offender is subject to more

than one period of post-release control,” as is the case here, “the period of

post-release control for all of the sentences shall be the period of post-

release control that expires last, as determined by the parole board or

court.” The statute also provides that “[p]eriods of post-release control

shall be served concurrently and shall not be imposed consecutively to each

other.” Id. Therefore, as this court explained in State v. Sulek, 2d Dist.

Greene No. 09CA75, 2010-Ohio-3919, even when a defendant is

sentenced to multiple prison terms, only one term of post-release control is

actually served, and “[t]he trial court [is] not required to separately and

expressly notify [the] Defendant of the terms of post-release control

applicable to each of the * * * offenses for which prison terms [are]

imposed.” Id. at ¶ 23, 25. Instead, it is “sufficient for a trial court to simply

notify a defendant of the longest period of post-release control that applies

since any other lesser periods of post-release control are subsumed by the

greater term.” State v. Harwell, 2d Dist. Montgomery No. 27658, 2018-

Ohio-1950, ¶ 26, citing Sulek at ¶ 23 and State v. Ramey, 2d Dist.

Montgomery No. 24944, 2012-Ohio-3978, ¶ 10.

Id. at ¶ 9.

{¶ 28} Here, the trial court correctly informed West that he was subject to five years

of post-release control for the sexual batteries. For the reasons set forth in Taylor, we
 -15-

conclude that his second assignment of error lacks merit, and it is overruled.

{¶ 29} West’s third assignment of error is as follows:

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE

WEST TO ENTER A NO CONTEST PLEA WHEN THERE EXISTED A

VIABLE ARGUMENT ON APPEAL THAT THE TRIAL COURT ERRED

WHEN IT OVERRULED WEST’S MOTION TO SUPPRESS.

{¶ 30} West asserts that trial counsel failed to advise him that a guilty plea

precluded his ability to challenge the trial court’s ruling on his motion to suppress and

that, because the trial court erred in overruling West’s motion to suppress, it was

ineffective assistance for trial counsel not to advise him to file a no contest plea and

preserve the error. He also asserts that the evidence in the case “could have led to a

verdict in his favor” if he had gone to trial.

{¶ 31} The State responds that the record is silent as to defense counsel’s

discussions with West about the difference between a plea of guilty and a plea of no

contest and about whether counsel advised West that a guilty plea would waive the right

to appeal the denial of the motion to suppress. However, the record does reflect that the

trial court advised West that his guilty plea waived his right to appeal pretrial rulings.

Further, the State asserts that there is no suggestion in the record that the State would

have been willing to enter the same agreement (dismissal of the highest-level felony) in

exchange for a no-contest plea. Finally, the State points out that West does not assert

that he would have rejected the State’s plea offer had his counsel advised him that his

guilty plea waived his right to appeal the trial court’s suppression ruling.
 -16-

{¶ 32} A claim of ineffective assistance of trial counsel requires both a showing

that trial counsel's representation fell below an objective standard of reasonableness and

that the defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. The prejudice prong requires a finding that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different, with a reasonable probability being “a probability

sufficient to undermine confidence in the outcome.” Id. at 694. See also State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); State v. McGlown, 2d Dist.

Montgomery No. 25434, 2013-Ohio-2762, ¶ 14.

{¶ 33} In State v. Barron, 2d Dist. Greene No. 2017-CA-46, 2018-Ohio-1221, ¶ 5,

we noted:

On appeal, Barron challenges only the trial court's suppression

ruling. He contends the search of the backpack was unlawful. As the

State notes, however, Barron's guilty plea waives his ability to challenge the

suppression ruling on appeal. See, e.g., State v. Guerry, 2d Dist. Clark No.

2015-CA-30, 2016-Ohio-962, ¶ 5, citing State v. Carson, 2d Dist.

Montgomery No. 20285, 2004-Ohio-5809, ¶ 8. Moreover, any error in the

suppression ruling necessarily would be harmless where Barron's

conviction resulted from his guilty plea and none of the evidence at issue

was admitted against him. Id. Finally, although Barron has not raised the
 -17-

issue, we cannot say that allowing him to plead guilty rather than no-contest

constituted ineffective assistance of counsel where the plea was a

negotiated one. In exchange for a guilty plea, the State agreed to

sentencing-related concessions. Nothing in the record indicates that the

State would have made the same concessions in exchange for a no-contest

plea. See State v. McGlown, 2d Dist. Montgomery No. 25434, 2013-Ohio-

2762, ¶ 17.2

(Footnote added.)

{¶ 34} The same is true herein. As part of the negotiated plea agreement, the

State agreed to dismiss Count III, pandering obscenity involving a minor, a second degree

felony and the most serious of the charges against West. The record does not reflect

what advice counsel may have given West prior to his pleas. See State v. Lindsey, 2d

Dist. Montgomery No. 28025, 2019-Ohio-1550, ¶ 17, citing McGlown at ¶ 17 (the record

did not reflect what advice defense counsel gave to the defendant about pleading guilty

versus no contest or whether counsel told him that pleading guilty would not preserve the

suppression issue for appeal; thus defendant could not demonstrate deficient

performance). In this case, the trial court advised West at the plea hearing that a guilty

plea was a complete admission of his guilt and that he was giving up his right to appeal

any pretrial rulings by entering a guilty plea, and West indicated his understanding of the

2
McGlown further held that, “[t]o establish on direct appeal McGlown's claim of ineffective
assistance of trial counsel, the record would have to show that: (1) the State would have
agreed to a no-contest plea on the same terms; (2) her counsel failed to advise her that
a no-contest plea, in contradistinction to a guilty plea, would preserve the suppression
issue for appeal; and (3) had McGlown been so advised, she would have rejected the
plea offer. The record fails to establish any of these facts.” McGlown at ¶ 17.
 -18-

court’s advisement. We conclude that ineffective assistance of counsel is not

demonstrated, and West’s third assignment of error is overruled.

{¶ 35} West’s fourth assignment of error is as follows:

THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S

MAXIMUM SENTENCES BY CLEAR AND CONVINCING EVIDENCE.

{¶ 36} West asserts that the trial court’s imposition of the maximum prison

sentences did not “achieve the principles and purposes of sentencing” under R.C.

2929.11 and that the court improperly weighed the seriousness and recidivism factors

under R.C. 2929.12. He asserts that community control sanctions, including treatment,

would have been “a more appropriate punishment” than maximum prison terms. West

acknowledges that the Ohio Supreme Court has held that such an analysis is not

appropriate for appellate review, citing State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649, and that an appellate court cannot consider whether “the facts in

a case supported imposing community control sanctions. However, he “wishes to

preserve his argument.” According to West, the facts and mitigating circumstances

supported community control sanctions rather than prison.

{¶ 37} As we recently noted in State v. Carter, 2d Dist. Clark No. 2021-CA-29,

2022-Ohio-543:

* * * [T]he Supreme Court of Ohio clarified an appellate court’s review

of a felony sentence under R.C. 2953.08(G)(2) in State v. Jones, 163

Ohio.St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. The Supreme

Court determined that R.C. 2953.08(G)(2)(a) “clearly does not provide a
 -19-

basis for an appellate court to modify or vacate a sentence if it concludes

that the record does not support the sentence under R.C. 2929.11 and R.C.

2929.12 because * * * R.C. 2929.11 and R.C. 2929.12 are not among the

statutes listed in the provision.” Id. at ¶ 31. Thus, the Supreme Court

concluded that an appellate court may not modify or vacate a felony

sentence based upon a finding by clear and convincing evidence that the

record does not support the trial court's “findings” under R.C. 2929.11 and

R.C. 2929.12. Id. at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an

appellate court to independently weigh the evidence in the record and

substitute its judgment for that of the trial court concerning the sentence that

best reflects compliance with R.C. 2929.11 and 2929.12.”).

In Jones, the Supreme Court also confirmed that R.C.

2953.08(G)(2)(b) does not provide a mechanism for an appellate court to

modify or vacate a felony sentence based upon a finding that the sentence

is “contrary to law” because it clearly and convincingly is not supported by

the record under R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 32-39. “As a

result of the Supreme Court's holding in Jones, when reviewing felony

sentences that are imposed solely after considering the factors in R.C.

2929.11 and R.C. 2929.12, we shall no longer analyze whether those

sentences are unsupported by the record. We simply must determine

whether those sentences are contrary to law.” State v. Dorsey, 2d Dist.

Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contrary to
 -20-

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 the sentencing factors set forth in R.C.

2929.12.” Id., citing State v. Brown, 2017-Ohio 8416, 99 N.E.3d 1135 (2d

Dist.).

Id. at ¶ 7-8.

{¶ 38} Pursuant to Jones, and as West acknowledges, analysis of whether West’s

sentence was clearly and convincingly not supported by the record under R.C. 2929.11

and R.C. 2929.12 is precluded. Accordingly, West’s fourth assignment of error is

overruled.

{¶ 39} Having overruled all of West’s assigned errors, the judgment of the trial

court is affirmed.

.............

TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Johnna M. Shia
Hon. Dennis J. Adkins