[Cite as State v. Murrell, 2018-Ohio-870.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 27610
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-1105
                                                   :
 DASEAN MURRELL                                    :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                              Rendered on the 9th day of March, 2018.

                                              ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, 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

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

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




TUCKER, J.
                                                                                         -2-




       {¶ 1} Defendant-appellant, Dasean Murrell, appeals from his conviction on one

count of domestic violence, a fourth degree felony under R.C. 2919.25(A) and (D)(3). In

a single assignment of error, Murrell argues that the trial court erred by sentencing him to

a term of imprisonment greater than the statutory minimum, instead of imposing

community control sanctions or the minimum statutory term of imprisonment. We find

that the trial court did not err, and therefore, we affirm.

                             I. Facts and Procedural History

       {¶ 2} On April 19, 2017, a Montgomery County grand jury issued an indictment

charging Murrell with one count of domestic violence in violation of R.C. 2919.25(A).

Murrell stood mute at his arraignment, but at his final pre-trial on May 16, 2017, he

pleaded guilty.     On May 30, 2017, the court sentenced him to twelve months

imprisonment. Murrell timely filed his notice of appeal to this court on June 2, 2017.

                                         II. Analysis

       {¶ 3} Murrell’s assignment of error is the following:

              THE TRIAL COURT ERRED IN IMPOSING A PRISON SENTENCE

       ON APPELLANT[.]

       {¶ 4} In support of this proposition, Murrell argues that the trial court disregarded

his remorse for his behavior, and improperly considered his juvenile adjudications, for

purposes of determining the nature and extent of his sentence. Appellant’s Br. 3-4. He

also argues that the trial court failed to comply with R.C. 2929.11 and 2929.12.

       {¶ 5} R.C. 2953.08(G) establishes that an appellate court may modify or vacate a

sentence only if it finds by clear and convincing evidence that the record does not support
                                                                                         -3-

the sentence or that the sentence is otherwise contrary to law. See State v. Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23; State v. Davis, 2d Dist.

Champaign No. 2016-CA-22, 2017-Ohio-6904, ¶ 8, citing Marcum, 2016-Ohio-1002, ¶

22.   Clear and convincing evidence is a “degree of proof [greater] than a mere

‘preponderance of the evidence’ ” that “produce[s] in the mind of the trier of fact[] a firm

belief or conviction as to the facts sought to be established”; evidence that satisfies this

standard need not satisfy the higher standard of “ ‘beyond a reasonable doubt,’ ” which

applies in criminal trials. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus; Marcum, 2016-Ohio-1002, ¶ 22, quoting Cross, 161 Ohio

St. 469, paragraph three of the syllabus.

       {¶ 6} Under R.C. 2929.11(A), a “court that sentences an offender for a felony shall

be guided” by the “overriding purposes” of punishing the offender and “protect[ing] the

public from future crime by the offender and others,” while “using the minimum sanctions

that [it] determines [likely to] accomplish [these] purposes without imposing an

unnecessary burden on state or local government resources.” Accordingly, the “court

shall consider the need for incapacitating the offender, deterring the offender and others

from future crime, rehabilitating the offender, and making restitution.”         Id.   R.C.

2929.11(B) adds that a felony sentence “shall be reasonably calculated to achieve the

two overriding purposes of felony sentencing * * * commensurate with and not demeaning

to the seriousness of the offender’s conduct and its impact upon [any] victim[s], and

consistent with sentences imposed for similar crimes committed by similar offenders.”

Pursuant to R.C. 2929.12(A), in “exercising [its] discretion” to determine “the most

effective way to comply with the purposes and principles of sentencing set forth in [R.C.]
                                                                                           -4-


2929.11,” a court must consider, among other things, a list of nine factors “indicating that

[an] offender’s conduct [was] more serious than conduct normally constituting” the offense

for which the offender was convicted; a list of four factors “indicating that the offender’s

conduct [was] less serious than conduct normally constituting the offense”; a list of five

factors “indicating that the offender is likely to commit future crimes”; and a list of five

factors “indicating that the offender is not likely to commit future crimes.” See also R.C.

2929.12(B)-(E).

       {¶ 7} Murrell contends that the trial court disregarded his expression of remorse.

Appellant’s Br. 3-4; see also R.C. 2929.12(E)(5). At his sentencing hearing, Murrell

offered an apology for his conduct when the court invited him to make a statement on his

own behalf before being sentenced. Tr. of Proceedings 14:2-14:14. The court then

noted that it had “reviewed [Murrell’s] presentence investigation,” which detailed “a very

substantial juvenile record [including] violent offenses” and “a prior domestic violence”

conviction as an adult, and it found on this basis that Murrell took “no responsibility for

[his] actions.” See id., at 14:22-15:14.

       {¶ 8} Though Murrell’s appellate counsel protests that the trial court’s “finding * * *

is very difficult to understand” in light of Murrell’s apology, the finding becomes

substantially less difficult to understand after an examination of the presentence

investigation report. Appellant’s Br. 3.     Murrell’s juvenile history and previous adult

conviction portend the likelihood of recidivism, and the investigator who compiled the

report observed that Murrell sought to minimize his responsibility for his behavior. In

other words, the record provides no clear and convincing evidence gainsaying the trial

court’s assessment of the credibility of Murrell’s apology.
                                                                                          -5-


         {¶ 9} Next, Murrell argues, or at least implies, that the trial court improperly

considered his juvenile adjudications in deciding what sentence to impose. Appellant’s

Br. 4. In this regard, Murrell complains that the court did not specify the juvenile offenses

for which he was adjudicated, indicate why it found the adjudications to be significant for

sentencing purposes, or acknowledge that the adjudications “were not criminal

convictions” as a matter of law. Id.

         {¶ 10} The trial court did, however, indicate that it considered Murrell’s juvenile

adjudications to be significant because they suggested a pattern of unwillingness on his

part to take responsibility for his own actions. See Tr. of Proceedings 14:22-14:25 and

15:11-15:14.      Moreover, because the court did not consider Murrell’s juvenile

adjudications for purposes of sentence enhancement, or as elements of criminal offenses,

its evaluation of the adjudications in connection with the prospect of recidivism was not

improper. See, e.g., State v. Herron, 2d Dist. Montgomery No. 27378, 2017-Ohio-8908,

¶ 5-7.

         {¶ 11} Finally, Murrell criticizes the trial court for not making a record of its

“consider[ation] [of] the purposes and principles of sentencing and the seriousness and

recidivism factors.” Appellant’s Br. 4; see also R.C. 2929.12(B)-(C); Tr. of Proceedings

15:15-15:21. Yet, a “trial court has full discretion to impose any sentence within the

authorized statutory range, and [it] is not required to make any findings or give its reasons

for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-

2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). The trial court in this case imposed a prison

sentence within the range authorized under R.C. 2929.14(A)(4), and although it had no

obligation to make any findings or give its reasons for imposing more than the minimum
                                                                                        -6-


possible sentence, the court did, in fact, briefly summarize its reasoning.         Tr. of

Proceedings 14:22-15:21.

                                     III. Conclusion

       {¶ 12} We find that Murrell’s arguments lack merit.            Therefore, Murrell’s

assignment of error is overruled, and the trial court’s judgment is affirmed.



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



WELBAUM, P.J. and DONOVAN, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Jay A. Adams
Hon. Mary Katherine Huffman
