[Cite as State v. Drought, 2017-Ohio-1415.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-A-0060
- vs - :
STEVEN S. DROUGHT, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 00393.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Margaret L. Brunarski, Ashtabula County Public Defender, 4817 State Road, Suite
#202, Ashtabula, OH 44004 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Steven S. Drought, appeals his sentence following his guilty
plea to attempted felonious assault, a third-degree felony. We affirm.
{¶2} In July of 2015, Daniel Luyando was driving at a high rate of speed on the
street where Drought and his family lived. Drought believed his young children were in
danger as a result. Drought and other neighbors were upset upon learning that the
police stopped Luyando, but let him go. The police told the neighbors to go home.
Instead of going home, Drought and another man got into their separate vehicles and
chased down Luyando causing a collision that resulted in damage to Luyando’s car and
a mailbox. No one sustained physical injuries. Drought admitted his involvement in the
collision and told the court that he did not intend to cause injury or harm, but that he
wanted to give Luyando “a piece of his mind.” Drought was initially charged with
felonious assault.
{¶3} During the pendency of the charges, Drought’s bond was revoked and a
warrant was issued for his arrest after he failed to appear at a pretrial. His counsel
explained that Drought thought the pretrial was not going forward and that his absence
was due to this misunderstanding.
{¶4} Drought ultimately pleaded guilty to attempted felonious assault, and the
trial court sentenced him to 18 months in prison, among other things.
{¶5} He raises one assigned error:
{¶6} “The trial court erred by sentencing the Defendant-Appellant to eighteen
months in prison without considering statutorily-required sentencing factors.”
{¶7} R.C. 2953.08(G)(2) states:
{¶8} “The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶9} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's standard for
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review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
{¶10} “(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶11} “(b) That the sentence is otherwise contrary to law.”
{¶12} “A sentence is contrary to law if (1) the sentence falls outside the statutory
range for the particular degree of offense, or (2) the trial court failed to consider the
purposes and principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710,
2015–Ohio–4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014–
Ohio–1520, ¶ 13. When a sentence is imposed solely after consideration of the factors
in R.C. 2929.11 and 2929.12, appellate courts ‘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.’ State v.
Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶23.” State v. Price,
8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶14.
{¶13} Appellant concedes that his sentence is within the statutory range.
Nevertheless, he claims his sentence is contrary to law because the sentencing court
failed to consider and apply R.C. 2929.11 and 2929.12.
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{¶14} Pursuant to R.C. 2953.08(G)(2) and State v. Marcum, 146 Ohio St.3d 516,
we cannot vacate or modify Drought’s sentence unless we clearly and convincingly find
that the record does not support his sentence. Id. at ¶23-24.
{¶15} R.C. 2929.12(A) provides that in imposing a sentence for a felony
offender, a sentencing court shall consider the R.C. 2929.12 seriousness factors,
recidivism factors, and the offender’s service in the armed services, if applicable, and
any other relevant factors. Id. It is not required, however, to state its application of the
factors to demonstrate that it considered them. State v. Arnett, 88 Ohio St.3d 208, 215,
2000-Ohio-302, 724 N.E.2d 793; State v. Webb, 11th Dist. Lake No. 2003–L–078,
2004-Ohio-4198, 2004 WL 1778852, ¶10. “A silent record raises the presumption that a
trial court considered the factors contained in R.C. 2929.12.” State v. Adams, 37 Ohio
St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus (1988). And the burden is
on the defendant to present evidence to rebut the presumption that the court considered
the sentencing factors. State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416,
19 N.E.3d 981, ¶79, citing State v. Cyrus, 63 Ohio St.3d 164, 586 N.E.2d 94 (1992).
{¶16} Here, Drought argues his sentence is contrary to law because the court
failed to consider the factors weighing in his favor upon fashioning his sentence. He
asserts he took responsibility for his actions, had no juvenile record, and had never
been to prison. He also emphasizes that the victim induced the offense.
{¶17} At sentencing, his attorney asked for community control sanctions with a
term of intensive outpatient treatment in lieu of prison. Drought’s presentence
investigation report confirms his illicit drug use. The prosecutor indicates at sentencing
that she will agree with the recommendation made in Drought’s presentence
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investigation, noting that he has a family to care for and that it appears that he is in
need of treatment. The presentence investigation report, however, does not
recommend a sentence.
{¶18} In imposing sentence, the court emphasized that Drought took the law into
his own hands by acting as a vigilante. The court also noted that Drought failed to
appear for a hearing, which resulted in his bond revocation, and that prison was
required to deter him from committing future offenses. The court stated it considered
the purposes and principles of R.C. 2929.11 and the factors listed in R.C. 2929.12.
{¶19} Furthermore, the presentence investigation reflects that he has prior
convictions for possession of drug paraphernalia, theft, and aggravated disorderly
conduct. It also states that Drought has 22 prior traffic convictions and 16 prior license
suspensions. Thus, we do not find by clear and convincing evidence that that the
record does not support his sentence, and as such, his sentence is not contrary to law.
{¶20} Drought’s sole assigned error lacks merit, and the trial court’s judgment is
affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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