[Cite as State v. Haddad, 2017-Ohio-1290.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                     :
                                                                     No. 16AP-459
                 Plaintiff-Appellee,               :              (C.P.C. No. 15CR-148)
                                                                          and
v.                                                 :                 No. 16AP-464
                                                                  (C.P.C. No. 16CR-202)
Bassem S. Haddad,                                  :
                                                               (ACCELERATED CALENDAR)
                 Defendant-Appellant.              :




                                             D E C I S I O N

                                      Rendered on April 6, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee.

                 On brief: Nancy K. Wonnell; Jo Hans-Kaiser, for appellant.

                  APPEALS from the Franklin County Court of Common Pleas

DORRIAN, J.

        {¶ 1} Defendant-appellant, Bassem S. Haddad, appeals from the judgments of
conviction entered by the Franklin County Court of Common Pleas. For the reasons that
follow, we affirm those judgments.
I. Facts and Procedural History
        {¶ 2} On February 8, 2016, in case No. 15CR-148, assigned appeal case No. 16AP-
459, appellant pled guilty to theft, in violation of R.C. 2913.02, a felony of the fifth degree.
Appellant and plaintiff-appellee, State of Ohio, jointly recommended a presentence
investigation. On April 18, 2016, in case No. 16CR-202, assigned appeal case No. 16AP-
464, appellant pled guilty to a stipulated lesser offense of attempted robbery, in violation
of R.C. 2923.02, as it relates to R.C. 2911.02, a felony of the fourth degree. The parties
jointly recommended a sentence of community control. The remaining counts in both
Nos. 16AP-459 and 16AP-464                                                                2


cases were nolle prosequi. The court ordered a presentence investigation and scheduled
the cases for sentencing.
         {¶ 3} A sentencing hearing was held on May 19, 2016 on both cases. In case No.
15CR-148, the trial court sentenced appellant to 6 months in prison to run concurrent
with 9 months in prison imposed in case No. 16CR-202. In both cases, the court imposed
3 years of optional postrelease control. In case No. 16CR-202, the court also imposed a
$1,000 fine. The court credited appellant with 94 days of jail-time credit in case No.
15CR-148 and 40 days of jail-time credit in case No. 16CR-202. On May 24, 2016, the
trial court filed its judgment entries.     Appellant filed notices of appeal from those
judgments.
II. Assignments of Error
         {¶ 4} Appellant assigns the following two assignments of error for our review:
               [I.] The Court abused its discretion when sentencing the
               Defendant, Bassem Haddad, considering the seriousness of
               the charges.

               [II.] The Court erred when sentencing the Defendant, Bassem
               Haddad, by denying the Defendant his due process rights as
               stated in the Ohio Revised Code.
III. Discussion
A. Appellant's Second Assignment of Error
         {¶ 5} In his second assignment of error, appellant argues that the guilty plea he
made in case No. 16CR-202 was not a knowing, voluntary plea because: (1) he has a
language barrier and could not read the plea form, (2) the colloquy "was not helpful,"
(3) appellant denied he did anything wrong and only pled because he believed he would
get probation, and (4) appellant relied on the advice of counsel that normally a joint
recommendation for community control "carries a lot of weight with all Judges [and] that
it's very exceptional if they don't follow the joint recommendation." (Appellant's Brief at
8, 7.)
         {¶ 6} " 'When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.' " State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7,
Nos. 16AP-459 and 16AP-464                                                                  3


quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). Crim.R. 11(C) addresses guilty
pleas in felony cases and requires a trial judge to determine whether the criminal
defendant is fully informed of his or her rights and understands the consequences of his
or her pleas. Crim.R. 11(C) provides, in pertinent 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 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.

              (b) Informing the defendant of and determining that the
              defendant understands the effect of the plea of guilty or no
              contest, and that the court, upon acceptance of the plea, may
              proceed with judgment and sentence.

              (c) Informing the defendant and determining that the
              defendant understands that by the plea the defendant is
              waiving the rights to jury trial, to confront witnesses against
              him or her, to have compulsory process for obtaining
              witnesses in the defendant's favor, and to require the state to
              prove the defendant's guilt beyond a reasonable doubt at a
              trial at which the defendant cannot be compelled to testify
              against himself or herself.

       {¶ 7} " 'A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally
advise a defendant before accepting a felony plea that the plea waives (1) the right to a
jury trial, (2) the right to confront one's accusers, (3) the right to compulsory process to
obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable
doubt, and (5) the privilege against compulsory self-incrimination. When a trial court
fails to strictly comply with this duty, the defendant's plea is invalid. (Crim.R. 11(C)(2)(c)
applied.)' Veney at syllabus. A defendant 'need not be advised of those rights in the exact
language of Crim.R. 11(C), but he must be informed of them in a reasonably intelligible
manner.' " State v. Young, 10th Dist. No. 10AP-292, 2010-Ohio-5873, ¶ 8, quoting State
v. Vinson, 10th Dist. No. 08AP-903, 2009-Ohio-3240, ¶ 6, citing State v. Ballard, 66
Nos. 16AP-459 and 16AP-464                                                                4


Ohio St.2d 473 (1981), paragraph one of the syllabus. Appellant does not allege any
specific violation of Crim.R. 11(C)(2)(c); therefore, we will not address the same.
       {¶ 8} Although a trial court must strictly comply with regard to federal
constitutional rights protected by Crim.R. 11, a trial court need only substantially comply
with the non-constitutional protections required under Crim.R. 11(C)(2)(a) and (b).
Veney at ¶ 14; Young at ¶ 9; State v. Allen, 10th Dist. No. 11AP-640, 2012-Ohio-2986,
¶ 20, citing State v. Williams, 10th Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 36, citing State
v. Nero, 56 Ohio St.3d 106, 108 (1990). Substantial compliance means that, under the
totality of the circumstances, the defendant subjectively understands the implications of
pleading guilty and the rights he or she is waiving. State v. Woods, 10th Dist. No. 14AP-
534, 2015-Ohio-2534, ¶ 8, citing Nero at 108. A defendant who challenges his or her
guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must
demonstrate prejudice in order to invalidate the plea. Veney at ¶ 15; Allen at ¶ 20; Young
at ¶ 9. " 'The test for prejudice is "whether the plea would have otherwise been made." ' "
Allen at ¶ 20, quoting Williams at ¶ 36, quoting Nero at 108.
       {¶ 9} " 'A determination of whether a plea was knowingly, intelligently, and
voluntarily entered is based upon a review of the record.' " Woods at ¶ 9, quoting Young
at ¶ 6, citing Vinson at ¶ 7, citing State v. Spates, 64 Ohio St.3d 269, 272 (1992). Here,
under the totality of the circumstances, we find the trial court substantially complied with
Crim.R. 11(C)(2)(a) and (b).
       {¶ 10} In support of his argument that there was a language barrier, appellant's
counsel points out that appellant stated: "I can't decide for myself because I don't
understand the law, what's going on with it. If I could speak English, if I could read, I
would know the law." (Apr. 18, 2016 Tr. at 10.) However, at the April 18, 2016 hearing in
case No. 16CR-202, the trial judge asked appellant point blank: "Do you read and write
English reasonably well?"      Appellant replied, "[y]es, sir."    (Apr. 18, 2016 Tr. at 6.)
Furthermore, on review of the transcript, we note that the trial court engaged appellant in
a very lengthy and thorough colloquy which included much back and forth questioning
and answering between the trial judge and appellant.              This back and forth belies
appellant's claims that his plea was not knowing because he had a language barrier.
Furthermore, appellant replied "[y]es, sir" when the court asked him if he understood the
Nos. 16AP-459 and 16AP-464                                                              5


"whole form where he signed on the front page and the second page." (Apr. 18, 2016 Tr.
at 15.)
          {¶ 11} We also do not agree with appellant that the colloquy was not helpful. To
the contrary, it was very thorough. The judge begins by informing appellant and counsel
that a jury pool of 24 people had been pulled downstairs to have a jury trial. The judge
also explains several times the rights that appellant has which accompany his right to a
jury trial:
                THE COURT: Mr. Haddad, as I've said a couple times, you
                can have this jury come up of 24 people from whom we'll pick,
                with your help, 12 people to be your jury. The state has to
                bring in witnesses. They have to prove here in court to the jury
                of 12 people beyond a reasonable doubt that you broke the law
                before you can be convicted. You don't have to testify unless
                you want to. You don't have to prove you're not guilty. You
                don't have to really do anything, other than sit there and help
                your lawyers defend the case. That's the nature of what we
                were proposing to do this morning that you're going to lose if
                you plead this case out with a guilty plea; no jury; the state
                doesn't have to prove you're guilty; they don't have to bring
                the witnesses here, all those things. Do you understand all
                that?

                [APPELLANT]: Yes, sir.

                THE COURT: All right. The state and you have the
                opportunity to bring in witnesses by sending out court orders
                to folks called subpoenas. If there were people that you
                wanted as witnesses, [your attorney] can send out subpoenas
                to them if there is anybody that would come in and help you
                testify and help you back up your side of the story. If
                somebody gets a subpoena that you need and they don't come
                when they're supposed to, we ask the sheriff's department to
                go get them and bring them down here in a cruiser, if they
                have to, and hold them in jail until they testify. So if there's
                people you need, that's the way we get them forced in to the
                court system to help you.

                [APPELLANT]: I don't know nobody.

                THE COURT: Okay. Well, that's just part of the process.

                [APPELLANT]: She's the only one I know.
Nos. 16AP-459 and 16AP-464                                                            6


              THE COURT: If you go through a trial with me and you're
              unhappy with the result because you lose, then you can have
              an appeal if you had took the case to trial. An appeal is to
              three judges across the street, who look over everything I did,
              all the records that we've been making, and they look to see if
              I made mistakes and fouled up your cases. That's essentially
              gone, that appeal right is gone, if you plead guilty. Do you
              understand that?

              [APPELLANT]: (Nods yes.)

              THE COURT: Then you're basically stuck with me as your
              judge. Do you understand that?

              [APPELLANT]: I'm stuck with you, and I don't want to finish
              with you, either.

              THE COURT: Well, I'm just saying, you know, if you go to
              trial, then you have a lot of opportunities to see other judges if
              you don't like the result. If you plead guilty, you're basically
              stuck with me, okay?

              [APPELLANT]: All right.

              ***

              THE COURT: Well, the law is that you're assumed to be
              innocent. The state has to bring witnesses if you ask for a trial
              this week to try to prove that you broke the law. You don't
              have to show you're not guilty. You don't have to prove
              anything. You don't have to say anything. You can sit there
              and let your lawyers fight the case.
(Apr. 18, 2016 Tr. 15-17; 10.)
       {¶ 12} Furthermore, several additional times, the judge reminds appellant that he
has a jury ready and waiting if appellant would like to proceed to trial:
              THE COURT: Well, I'll give you a trial today. We've got a jury
              pulled to start the trial process. The state has the
              responsibility to try to prove you broke the law and prove it
              beyond a reasonable doubt. So if you want a trial and you
              don't want to do this guilty plea, please tell me.

              ***
Nos. 16AP-459 and 16AP-464                                                         7


              [APPELLANT]: Actually, I don't want to take more time from
              you or from anybody else. If I'm going to jail, I'm not going to
              plead guilty for it. I am not guilty.

              THE COURT: All right. Well, then we ought to have a trial and
              you can tell a jury that. Do you see what I'm saying?

              [APPELLANT]: I will.

              THE COURT: You got to decide. You're the one whose life is
              involved. I can't decide that for you. I can't recommend
              anything. All I can do is tell you that you have a choice
              between having a trial and between saying, I didn't do much,
              but I'll plead guilty just to get this over with. That's,
              effectively, what you're saying to me.

              [APPELLANT]: I want to be finished.
(Apr. 18, 2016 Tr. 8-9, 12-13.)
       {¶ 13} The court also explains the plea offer and possible sentence:
              THE COURT: Mr. Haddad, the plea form says that you're
              pleading guilty this afternoon now to, rather than go to trial, a
              crime called attempted robbery, which is listed as a felony of
              the fourth degree. Is that what you understand you're
              admitting to resolve the case rather than go to a jury trial?

              [APPELLANT]: Yes, sir.

              THE COURT: The penalties for that could be as much as 18
              months in state prison, plus a $5,000 fine, plus the court
              costs, which are probably 400 to 600 dollars, something like
              that. Do you understand those potential penalties?

              [APPELLANT]: Yes, sir.

              THE COUT: The recommendation by the lawyers is that I use
              a community control sanction. That could be some more jail.
              It could be supervision for up to five years with a probation
              officer. It could be a variety of things, but it would not at that
              point include prison. Do you understand that?

              [APPELLANT]: Yes, sir.

              THE COURT: If you violated community control sanctions;
              you broke the law, you ran away, you just didn't report when
              you were supposed to, you got caught with illegal drugs, other
Nos. 16AP-459 and 16AP-464                                                    8


            kinds of things like that, I could stop probation and then send
            you for that 18-month-prison sentence. Do you understand
            that?

            [APPELLANT]: Yes, sir.

            THE COURT: Is there any restitution on this thing[?]

            [PROSECUTOR]: No, Your Honor.

            ***

            THE COURT: All right. On the second page is a notice to you
            that if I sent you to prison, the Adult Parole Authority of the
            state could supervise you after prison for up to three years
            with a parole officer. That's called post-release control. It's
            when people come out of an Ohio prison, sometimes they
            have to report to a parole officer for up to three years after
            they get out of prison. Do you understand that?

            [APPELLANT]: Yes, sir.

            THE COURT: If you broke the rules during that three-year
            period, assuming I first send you to prison and then they put
            you in the program, both of which we don't know, but if that
            happened, you would have to follow the rules, go see the
            officer, tell them where [you] live, tell them where you work,
            not break the law, all that kind of stuff.

            If you violated their rules, they could add up to 50 percent to
            my first prison sentence, without calling me, without calling
            [your attorneys]. That's how they keep people supervised after
            prison in Ohio. If I sent you for 12 months, they could add up
            to 6 months if you didn't see your parole officer and you broke
            the law and all that after prison. Do you understand all that?

            [APPELLANT]: Yes, sir.

            THE COURT: Okay. The fine for a felony 4 level crime of any
            sort can be up to $5,000. Do you understand that?

            [APPELLANT]: Yes, sir.

            THE COURT: Court costs can be assessed. Those can be three
            to five hundred to six hundred, maybe some more money than
            that even, for the processing fees for keeping track of all the
            paperwork down here. Do you understand that, sir?
Nos. 16AP-459 and 16AP-464                                                          9


              [APPELLANT]: Yes, sir.
(Apr. 18, 2016 Tr. at 4-6, 13-14.)
       {¶ 14} The court also explains several times the possible consequences pleading
could have on appellant's immigration status:
              THE COURT: Mr. Haddad, the record should reflect -- we've
              already talked. You're 50 years old, right?

              [APPELLANT]: Yes, sir.

              THE COURT: And according to my notes from your other
              case, you had a couple years of college back in the 1980s; is
              that right?

              [APPELLANT]: Yes, sir.

              THE COURT: Do you read and write English reasonably well?

              [APPELLANT]: Yes, sir.

              THE COURT: Now, before we lose the point, you've told us
              that you're a citizen of Jordan and you're not a U.S. citizen.
              You understand that if you enter this guilty plea, that that
              raises potential issues with the American Immigration and
              Naturalization Services. You would now have two felony
              convictions. One that you pled guilty to some months ago, the
              F5, which was a theft case from Menard's, and then this F4
              case. So with two felony convictions, they might well revoke
              your green card and deport you, or they might say if you leave
              the country to go back and visit family, that they wouldn't let
              you back in to the border when you fly back into the United
              States. Or they may could say, Well, we'll let you live here, but
              we're never going to naturalize you and let you be a full-
              fledged voting citizen. There's a whole variety of things that
              the American immigration authorities can do. I don't control
              any of it. Do you understand that?

              [APPELLANT]: Yes, sir.

              THE COURT: Have you had enough time to think about what
              the effect of two felony convictions is on your status here in
              the United States, even though it's somewhat indefinite what
              could happen? Have you thought about all that?

              [APPELLANT]: Yes, sir.
Nos. 16AP-459 and 16AP-464                                                               10


              THE COURT: And you still want to plead guilty to the second
              felony?

              [APPELLANT]: I have to.

              THE COURT: Well, no, you don't have to.

              [APPELLANT]: I wish I could say something, you know. I
              don't see nothing. I don't do nothing wrong.
(Apr. 18, 2016 Tr. at 6-7.)
       {¶ 15} Finally, we find to be lacking in merit appellant's assertions that he was, in
essence, somehow mislead into believing he would only receive probation:
              THE COURT: As you know, counsel, we've pulled a jury of 24
              people downstairs to have a jury trial in this case. Before
              doing that, I wanted to have a hearing to determine whether
              Mr. Haddad wanted to press ahead with a jury or whether he
              wanted to accept the state's offer.

              [Prosecutor], why don't you tell us what the state's final offer
              is to avoid a jury trial, please, just so we have it on the record
              with Mr. Haddad present.

              [PROSECUTOR]: The state has offered one count of
              attempt[ed] robbery, a felony of the fourth degree, with a joint
              recommendation for community control.

              THE COURT: [Defense counsel], have you been able to talk
              that over with Mr. Haddad?

              [DEFENSE COUNSEL]: We have talked that over, Your
              Honor. His concern is probation, whether he would get it or
              not. I've indicated to him repeatedly that you would want a
              presentence investigation report. I've indicated that normally
              a joint recommendation of probation carries a lot of weight
              with every judge. It's very exceptional if they don't follow that
              joint recommendation. I hope I've represented that correctly.

              THE COURT: I believe you have, yes.

              [DEFENSE COUNSEL]: It's been his decision. It's not a
              guarantee of probation, but it's a high probability, I think, for
              probation, given the joint recommendations. You're going to
              have to decide whether you want to take that chance, or if you
              want to go ahead and take a trial.
Nos. 16AP-459 and 16AP-464                                                               11


              [APPELLANT]: I'll take that chance.

              THE COURT: Then, Mr. Haddad, we've also got 15CR-148,
              which is a separate charge that I believe you pled guilty to,
              according to my notes, for a theft from a Menard's store on
              December 19th, 2014. Do you understand that is also
              pending?

              [APPELLANT]: Yes, sir.

              THE COURT: I have to sentence, then, on both of them, not
              just this case, but the two of them will be sentenced together.
              Do you understand that?

              [APPELLANT]: Yes, sir.

              THE COURT: And I can't promise you what I'm going to do at
              your sentencing. I want to get more information, and then
              we'll have a separate hearing. Both of the lawyers are
              recommending I use probation, or community control, as it's
              called, but that's not an absolute iron-clad guarantee. Do you
              understand that?

              [APPELLANT]: Yes, sir.
(Apr. 18, 2016 Tr. at 2-4.)
       {¶ 16} Having carefully reviewed the transcript, we find appellant has not
demonstrated that his plea was not knowing or voluntary. Accordingly, we overrule
appellant's second assignment of error.
B. First Assignment of Error
       {¶ 17} In his first assignment of error, appellant asserts the trial court abused its
discretion in sentencing him. In his appellate brief, appellant asks "whether the sentence
imposed was consistent with the sentencing provisions of the Ohio Revised Code as to
felony 4 and felony 5 sanctions and with the underlying principles and purposes of felony
sentencing to protect the public and punish the offender using minimum standards
without imposing an unnecessary burden on the State and/or local government
resources." (Appellant's Brief at 6.) Appellant alleges the trial court did not analyze the
recidivism or seriousness factors or his amenability to community control factors.
       {¶ 18} In State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, the Supreme
Court of Ohio revisited the standard to be applied in reviewing felony sentences. In
Nos. 16AP-459 and 16AP-464                                                                                 12


Marcum, the court held "appellate courts may not apply the abuse-of-discretion standard
in sentencing-term challenges." Id. at ¶ 10. The court further held that "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. at ¶ 23.       Therefore, courts must consider whether
(1) appellant's sentence is clearly and convincingly contrary to law, or (2) the record does
not support appellant's sentence by clear and convincing evidence. State v. Johnson, 10th
Dist. No. 15AP-946, 2016-Ohio-8494, ¶ 24, citing State v. D.S., 10th Dist. No. 15AP-790,
2016-Ohio-2856, ¶ 9. " 'Clear and convincing evidence is that measure or degree of proof
which is more than a mere "preponderance of the evidence," but not to the extent of such
certainty as is required "beyond a reasonable doubt" in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.' " Id., quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three
of the syllabus.
        {¶ 19} Following Marcum, this court has held that a sentence is not clearly and
convincingly contrary to law when a trial court considers the principles and purposes of
sentencing contained in R.C. 2929.11 and the factors listed in R.C. 2929.12, properly
imposes postrelease control, and sentences the defendant within the permissible statutory
range.1 Id. at ¶ 24, citing State v. Gore, 10th Dist. No. 15AP-686, 2016-Ohio-7667, ¶ 8.
        {¶ 20} In sentencing a felony offender, the trial court must consider the overriding
purposes of sentencing, which are "to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government." R.C. 2929.11(A). This requires consideration of "the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both." R.C. 2929.11(A). Further, pursuant to R.C. 2929.12(A), the court must consider
the factors set forth in R.C. 2929.12(B) and (C) relating to the seriousness of the offender's

1 Appellant does not allege here that postrelease control was not properly imposed or that the sentences were

outside the permissible statutory range. Furthermore, appellant does not argue that a sentence of
community control was required by law. Therefore, we will not address the same; however, we will note that
the judgment entry indicates that the court weighed the factors set forth in the applicable provisions of R.C.
2929.13 and 2929.14 and found that a prison term is not mandatory pursuant to R.C. 2929.13(F).
Nos. 16AP-459 and 16AP-464                                                                 13


conduct, as well as the factors set forth in R.C. 2929.12(D) and (E) relating to the
likelihood of recidivism, along with any other relevant factors. State v. Anderson, 10th
Dist. No. 15AP-1082, 2016-Ohio-5946, ¶ 8, citing State v. Phipps, 10th Dist. No. 13AP-
640, 2014-Ohio-2905, ¶ 46, citing State v. Patrick, 10th Dist. No. 10AP-26, 2011-Ohio-
1592, ¶ 24.
       {¶ 21} In the trial court's judgment entries of conviction, it noted that it "has
considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the
factors set forth in R.C. 2929.12." (Jgmt. Entry at 1.) That language in a judgment entry
by itself belies a defendant's claim that the trial court failed to consider the purposes and
principles in sentencing pursuant to R.C. 2929.11, and the R.C. 2929.12 factors regarding
recidivism and the seriousness of the offense. Anderson at ¶ 8-9, citing State v. Stubbs,
10th Dist. No. 13AP-810, 2014-Ohio-3696, ¶ 14, citing State v. Foster, 10th Dist. No.
12AP-69, 2012-Ohio-4129, ¶ 15; State v. Small, 10th Dist. No. 09AP-1175, 2010-Ohio-
5324, ¶ 16.     Furthermore, the record in case No. 15CR-148 contains a sentencing
memorandum, filed with the court on May 12, 2016, in which appellant's counsel outlined
the factors in detail. We presume the trial judge reviewed the memorandum as there is no
indication, or even allegation, that he did not. Finally, it is clear from the transcript that
the trial court carefully considered the factors with regard to case No. 16CR-202.
       {¶ 22} At the sentencing hearing, appellant's counsel addressed the court and
noted the joint recommendation of community control in case No. 16CR-202 and
suggested to the court it would be appropriate to impose the same in case No. 15CR-148,
noting a presumption in favor of community control for felonies of the fifth degree.
Appellant's counsel also noted that the police officer who arrested appellant was
subsequently arrested himself in a federal case. However, appellant's counsel stated he
did not think that had any implications on appellant's case. The state indicated it had
read through the presentence investigation and noted a lack of responsibility on
appellant's part.   The state also noted that it made the joint recommendation for
community control in case No. 16CR-202 because of a lack of cooperation from the victim
in that case.
       {¶ 23} Before imposing sentence, the trial court noted that appellant was on
probation for telephone harassment in the Franklin County Municipal Court at the time
Nos. 16AP-459 and 16AP-464                                                            14


he attempted the robbery in case No. 16CR-202. The court also noted that the victim in
case No. 16CR-202 was the same victim in the municipal court case. The court also
observed that appellant received a violation in jail on April 15th for passing notes and
contraband inside the jail and that he lied about alcohol use in his presentence
investigation interview. Finally, the court found to be peculiar appellant's statement to
the investigator that he brought $500,000 to the United States in 1993 and that "[h]e
always has money." The court stated that it was "not convinced that community control is
the appropriate route here." (May 19, 2016 Tr. at 5.) Taking all this into consideration,
we find the trial court fully considered the principles and purposes of sentencing as set
forth in R.C. 2929.11 and 2929.12.
         {¶ 24} Having fully reviewed the record, we find the trial court considered the
principles and purposes of sentencing and that appellant's sentence is not clearly and
convincingly contrary to law. Accordingly, we overrule appellant's first assignment of
error.
IV. Conclusion
         {¶ 25} Having overruled appellant's two assignments of error, we affirm the
judgments of the Franklin County Court of Common Pleas.
                                                                   Judgments affirmed.
                            SADLER & HORTON, JJ., concur.
