[Cite as State v. Richards, 2016-Ohio-1293.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,
                                                          CASE NO. 14-15-27
       PLAINTIFF-APPELLEE,

      v.

JONATHON M. RICHARDS,                                     OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Union County Common Pleas Court
                            Trial Court No. 14-CR-0167

                                      Judgment Affirmed

                             Date of Decision: March 28, 2016



APPEARANCES:

        Robert J. Beck, Jr. and Eric W. Brehm for Appellant

        David W. Phillips for Appellee
Case No. 14-15-27


WILLAMOWSKI, J.

       {¶1} Defendant-appellant, Jonathon M. Richards (“Richards”), brings this

appeal from the judgment of the Common Pleas Court of Union County, Ohio,

which accepted his plea of guilty to one count of felonious assault, a felony of the

second degree in violation of R.C. 2903.11(A)(1), (D)(1)(a), and sentenced him to

five years in prison. For the reasons that follow, we affirm the trial court’s

judgment.

                               Relevant Background

       {¶2} On September 4, 2014, Richards was indicted on one count of rape, a

felony of the first degree in violation of R.C. 2907.02(A)(2), (B); one count of

felonious assault, a felony of the second degree in violation of R.C.

2903.11(A)(1), (D)(1)(a), and one count of domestic violence, a misdemeanor of

the first degree in violation of R.C. 2919.25(A), (D)(2). (R. at 1.) The charges

stemmed from incidents that occurred on May 22, 2014, and June 5, 2014. (Id.)

The victim in both cases was L.W., Richards’s wife. (See R. at 54, Am. Bill of

Particulars.) Richards entered a plea of not guilty.

       {¶3} On July 31, 2015, Richards withdrew his former not guilty plea and

entered a plea of guilty to one count of felonious assault, a felony of the second

degree in violation of R.C. 2903.11(A)(1), (D)(1)(a). (R. at 57.) The trial court

accepted the plea, found Richards guilty of the charge and at the request of the

State, it dismissed the remaining counts of the indictment.         (Id.)   After a

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presentence investigation report was prepared, the parties appeared for sentencing

on September 16, 2015.       The trial court sentenced Richards to five years of

imprisonment and from this sentence Richards now appeals raising one

assignment of error as quoted below.

       THE TRIAL COURT DID ERR BY IMPOSING A PRISON
       TERM THAT IS DISPROPORTIONATE TO OTHER
       SENTENCES   IMPOSED   FOR   SIMILAR   CRIMES
       COMMITTED BY SIMILAR OFFENDERS.

                                Standard of Review

       {¶4} A trial court has discretion to impose a prison sentence that is within

the statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846

N.E.2d 1, ¶ 37; State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9.

But in exercising that discretion, the trial court must “carefully consider” the

statutory sentencing guidelines set forth in R.C. 2929.11 and R.C. 2929.12, as well

as the “statutes that are specific to the case itself.” Matthis at ¶ 38. We will

reverse the sentence only if we determine “by clear and convincing evidence that

the record does not support the trial court’s findings under relevant statutes or that

the sentence is otherwise contrary to law.” State v. Marcum, Slip Opinion No.

2016-Ohio-1002 (March 15, 2016).

       {¶5} Under R.C. 2929.11, in imposing the sentence, the trial court “shall

consider 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). Furthermore, the trial court
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must ensure that the sentence is “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 the

victim, and consistent with sentences imposed for similar crimes committed by

similar offenders.” R.C. 2929.11(B). Under R.C. 2929.12, the trial court shall

consider a number of factors that relate to the seriousness of the conduct, the

likelihood of the offender’s recidivism, and the offender’s service in the armed

forces.

                                     Analysis

          {¶6} Richards alleges that his sentence was disproportionate to other

sentences imposed for similar crimes committed by similar offenders. As the only

support for his argument Richards submits that (1) he “had no prior felony

convictions” and (2) “he had never been imprisoned in a State penitentiary.”

(App’t Br. at 5.)

          {¶7} “Proportionality is one of the overriding principles of felony

sentencing under R.C. 2929.11,” and it is achieved by “ ‘a proper and circumspect

application of the sentencing guidelines.’ ”    State v. Lewis, 11th Dist. Lake No.

2011-L-004, 2011-Ohio-4700, ¶ 25-26. Thus, multiple courts have noted that “a

consistent sentence is not achieved from a case-by-case comparison, but by the

trial court’s proper application of the statutory sentencing guidelines.” State v.

Sutton, 8th Dist. Cuyahoga No. 97132, 2012-Ohio-1054, ¶ 17, citing State v. Hall,

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179 Ohio App.3d 727, 2008–Ohio–6228, 903 N.E.2d 676, ¶ 10 (10th Dist.);

accord State v. Mansley, 2d Dist. Montgomery No. 26417, 2015-Ohio-2785, ¶ 17;

State v. Dahms, 6th Dist. Sandusky No. S-11-028, 2012-Ohio-3181, ¶ 22; State v.

Marker, 11th Dist. Portage No. 2006-P-0014, 2007-Ohio-3379, ¶ 44; State v.

Coburn, 4th Dist. Adams No. 03CA774, 2004-Ohio-2997, ¶ 17. Therefore, “[a]

defendant claiming inconsistent sentencing must show the trial court failed to

properly consider the statutory sentencing factors and guidelines in R.C. 2929.11

and 2929.12.” Sutton at ¶ 18.

      {¶8} While the burden is on the defendant to demonstrate that the sentence

is not supported by the record or is contrary to law, Richards offers nothing to

support his assignment of error on appeal. See State v. Ramos, 3d Dist. Defiance

No. 4-06-24, 2007-Ohio-767, ¶ 18; State v. Searles, 8th Dist. Cuyahoga No.

96549, 2011-Ohio-6275, ¶ 25. He does not argue that the trial court failed to

properly consider or follow the necessary sentencing guidelines; nor does he argue

that the record does not support the trial court’s findings or that the sentence is

otherwise contrary to law.

      {¶9} Based on our review, the five-year prison term was well supported by

the record, which includes a summary of factual allegations that lead to the

charges and the presentence investigation report. The facts indicate that the victim

in this case, L.W., was repeatedly physically and sexually abused by Richards.

(Tr. of Proceedings, Sentencing at 4-5, 12, Sept. 16, 2015.) The recent abuse

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included strangulation of the victim “to the point that her legs were -- and arms

were twitching, that she saw stars, that she attempted to stop him and lost

strength,” and that “she was losing consciousness.” (Id. at 4.) The incident left

bruising on the victim’s face and neck, “a yellow bruise to the white of her eye,”

and a “ruptured blood vessel in the eye.” (Tr. of Proceedings, Change of Plea at

20, July 31, 2015.) The abuse occurred in front of children. (Tr. of Proceedings,

Sentencing at 12; see also Tr. of Proceedings, Change of Plea at 19.)

       {¶10} Richards had previously been charged with domestic violence in

Madison County, Ohio, and convicted of an amended charge of disorderly conduct

as a result. (Tr. of Proceedings, Sentencing at 5; PSI at 6.) At the time of the

sentencing in this case, Richards was under probation for the Madison County

case and was attending domestic violence group sessions.         (PSI at 7; Tr. of

Proceedings, Change of Plea at 7.) The trial court referred to the facts that led to

the rape charges, commenting that they were “particularly egregious.” (Tr. of

Proceedings, Sentencing at 13.) Although they were dismissed upon the victim’s

request because “she did not wish there to be a mandatory prison term,” Richards

admitted to committing the acts that the court described as “particularly

egregious.” (Id. at 5, 13; see also PSI at 4.)

       {¶11} As stated above, Richards pointed to no facts or factors on appeal to

indicate that the trial court erred in imposing his sentence. We further note that

the five-year prison term falls within the statutory range, which is from two to

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eight years, and is less than the maximum prison term permitted by the statute.

See R.C. 2929.14(A)(2).     For all of the foregoing reasons, we overrule the

assignment of error and affirm the sentence imposed by the trial court.

                                   Conclusion

       {¶12} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Common Pleas Court of Union County, Ohio is

therefore affirmed.

                                                               Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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