 [Cite as State v. Clemons, 2014-Ohio-4248.]



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

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 TAKEYA S. CLEMONS

         Defendant-Appellant


 Appellate Case No.       26038

 Trial Court Case Nos. 2013-CR-3221
                       2013-CR-944

 (Criminal Appeal from
 (Common Pleas Court)
                                               ...........

                                               OPINION

                              Rendered on the 26th day of September, 2014.

                                               ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 131 North Ludlow Street, Suite 1210, Dayton,
Ohio 45402
       Attorney for Defendant-Appellant

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


WELBAUM, J.
                                                                                        2




       {¶ 1}    Defendant-appellant, Takeya S. Clemons, appeals from the sentence she received

in the Montgomery County Court of Common Pleas following a guilty plea to one count of

pandering sexually oriented material involving a minor. For the reasons outlined below, the

judgment of the trial court will be affirmed.

       {¶ 2}    On August 12, 2013, Clemons was indicted on one count of pandering sexually

oriented material involving a minor in violation of R.C. 2907.322(A)(1), a felony of the second

degree. The charge arose from Clemons videotaping herself having sex with a 16-year-old

minor and then posting the video online to her Facebook account. Clemons pled guilty to the

pandering charge on November 8, 2013. Thereafter, the trial court imposed a two-year prison

sentence, which was ordered to run concurrently with a one-year prison sentence in an unrelated

case. The trial court also designated Clemons as a Tier II sex offender and ordered her to

register as provided by law. Clemons now appeals from her two-year prison sentence, raising

one assignment of error for review.

       {¶ 3}    Clemons’s sole assignment of error is as follows:

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

       IMPOSED AN UNLAWFUL SENTENCE BASED ON AN INCORRECT

       UNDERSTANDING OF THE FACTS OF THE CASE.

       {¶ 4}    Under this assignment of error, Clemons contends her two-year prison sentence is

unlawful because the trial court considered uncharged conduct at sentencing.       Specifically,

Clemons claims that the trial court imposed her sentence based on a misunderstanding that she

was charged with engaging in sexual activity with a minor.
                                                                                           3


        {¶ 5}    As a preliminary matter, we note that R.C. 2953.08(G)(2) is the appellate

standard of review for felony sentences. See State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069,

¶ 29 (2d Dist.). The statute states, in pertinent part, that:

        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 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:

        (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;

        (b)     That the sentence is otherwise contrary to law.

 R.C. 2953.08(G)(2).

        {¶ 6}    The findings under the statutory provisions listed in division (a) of R.C.

2953.08(G)(2) are not in dispute and are irrelevant to this case; therefore, the threshold issue is

whether Clemons’s sentence is clearly and convincingly contrary to law. “[A] sentence is not

contrary to law when the trial court imposes a sentence within the statutory range, after expressly

stating that it had considered the purposes and principles of sentencing set forth in R.C. 2929.11,

as well as the factors in R.C. 2929.12.” Rodeffer at ¶ 32, citing State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.
                                                                                              4


       {¶ 7}       In this case, Clemons does not argue that the trial court imposed a sentence

outside the statutory range, but implies the trial court failed to consider the appropriate

sentencing factors. Specifically, Clemons claims her sentence is contrary to law because the trial

court considered uncharged conduct of engaging in sexual activity with a minor. However, Ohio

law is clear that “ ‘[u]nindicted acts * * * can be considered in sentencing without resulting in

error when they are not the sole basis for the sentence.’ ” State v. Cook, 8th Dist. Cuyahoga No.

87265, 2007-Ohio-625, ¶ 69, quoting State v. Bundy, 7th Dist. Mahoning No. 02 CA 211,

2005-Ohio-3310, ¶ 86. (Other Citation omitted.) In fact, “a trial court may rely on ‘a broad

range of information’ at sentencing.”          State v. Bodkins, 2d Dist. Clark No. 10-CA-38,

2011-Ohio-1274, ¶ 43, quoting State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926

N.E.2d 714, ¶ 13 (2d Dist.).

       {¶ 8}       “The evidence the court may consider is not confined to the evidence that strictly

relates to the conviction offense because the court is no longer concerned * * * with the narrow

issue of guilt.”     (Citation omitted.)   Bowser at ¶ 14.      “Among other things, a court may

consider hearsay evidence, prior arrests, facts supporting a charge that resulted in an acquittal,

and facts related to a charge that was dismissed under a plea agreement.” (Citation omitted.)

Bodkins at ¶ 43. A court may also consider “allegations of uncharged criminal conduct found in

a PSI report[.]” (Citation omitted.) Bowser at ¶ 15. Accord State v. Scheer, 158 Ohio App.3d

432, 2004-Ohio-4792, 816 N.E.2d 602, ¶ 13 (4th Dist.) (finding that “[a] court may consider a

defendant’s uncharged yet undisputed conduct when determining an appropriate sentence”).

       {¶ 9}       Here, the presentence investigation report (PSI) stated that during the presentence

investigation interview, Clemons reported that she had videotaped herself having consensual sex
                                                                                                5


with the victim, who was 16-years-old at the time, and then posted the video online to Facebook

out of spite. At sentencing, the trial court indicated that it had reviewed the PSI and noted that

Clemons’s choice to have sexual activity with a minor was disturbing. Specifically the trial

court stated:

       I have reviewed the presentence investigation and I also have the statement from

       the victim’s mother.     And I’m going to address primarily the pandering of

       sexually oriented material involving a minor. The disturbing, very disturbing

       fact, ma’am, there is that you chose to engage in sexual activity with a minor.

       That, in and of itself, is not the disturbing issue. It’s the fact that you chose, out

       of what appears to be spite or anger, to then post a video of that very graphic

       sexual activity on Facebook as a–really out of anger. And that’s something that

       I’m sure you know you can’t take back. The report indicates people who knew

       the victim saw it, reported it to her and her mother. And so this isn’t something

       that was just out there but it’s caused a lot of damage, ma’am, to a lot of people.

(Emphasis added.) Transcript (Dec. 27, 2013), p. 7.

       {¶ 10} The transcript of the sentencing hearing does not establish any misunderstanding

of the facts by the trial court. It also clearly establishes that Clemons’s sexual activity with the

minor victim was not the sole basis for the trial court’s imposition of a two-year prison sentence.

Instead, the record indicates that the trial court primarily considered Clemons’s conduct of

posting a sexually graphic video of a minor on Facebook, which caused emotional damage and

undue stress to the victim and her family. In addition, the trial court indicated that it had

considered the purposes and principles of sentencing and the seriousness and recidivism factors
                                                                                                                                6


set forth in R.C. 2929.11 and R.C. 2929.12.                             The fact that the trial court considered the

disturbing nature of the uncharged sexual activity along with the other considerations, does not

render the resulting two-year prison sentence contrary to law.1

         {¶ 11} For the foregoing reasons, Clemons’s sole assignment of error is overruled.

Having overruled Clemons’s only assignment of error, the judgment of the trial court is affirmed.



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

HALL, J., concurs.

FAIN, J., concurring in judgment.

        {¶ 12} For the reasons set forth in Judge Froelich’s dissenting opinion in State v.
Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.), I am not convinced that all appellate
reviews of sentences are governed by R.C. 2953.08(G)(2). But even if the sentence in this case
can properly be reviewed under an abuse-of-discretion standard of review, I find no abuse of
discretion in this case. In all other respects, I concur in Judge Welbaum’s opinion for this court.


Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Jeffrey T. Gramza
Hon. Michael W. Krumholtz




           1
                We have reviewed Clemons’s sentence under the standard of review set forth in Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069. In
 Rodeffer, we held that we would no longer use an abuse-of-discretion standard in reviewing a sentence in a criminal case, but would apply the
 standard of review set forth in R.C. 2953.08(G)(2). Since then, opinions from this court have expressed reservations as to whether our
 decision in Rodeffer is correct. See, e.g., State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538, ¶ 9, fn.1; State v. Johnson, 2d
 Dist. Clark No. 2013-CA-85, 2014-Ohio-2308, ¶ 9, fn. 1. Regardless, in the case before us, we find no error in the sentence imposed under
 either standard of review.
