[Cite as State v. Roth, 2018-Ohio-4005.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
RYAN J. ROTH                                 :       Case No. CT2017-0069
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CR2017-0184



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    September 28, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    ERIC J. ALLEN
Prosecuting Attorney                                 The Law Office of Eric J. Allen, Ltd.
                                                     4605 Morse Rd., Suite 201
By: GERALD V. ANDERSON II                            Gahanna, Ohio 43230
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0069                                              2

Baldwin, J.

       {¶1}   Defendant-appellant Ryan J. Roth appeals his sentence from the

Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On or about October 22, 2016, appellant burglarized the home of Peter and

Tara Woods while they, their children and friends of their children were sleeping. The

stolen items included an iPad, iPhone, purse, wallet, cash and credit cards, among other

items. Peter Woods was able to locate his iPhone using an app. Appellant, who had the

cellphone, contacted Peter Woods and met with him in order to return the phone in

exchange for $20.00. It was later discovered that Peter Woods’ credit card had been used

in and around Zanesville, Ohio multiple times. Using videos of the transactions, law

enforcement was able to identify appellant as the one who was using the stolen credit

card. Further investigation revealed that appellant had a bag in his possession containing

miscellaneous stolen items belonging to Jessica Henderson.

       {¶3}   On May 25, 2017, appellant was indicted on one count (Count One) of

burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree, one count

(Count Two) of theft ($1,000- $7,500) in violation of R.C. 2913.02(A)(1), a felony of the

fifth degree, one count (count Three) of theft (checks) in violation of R.C. 2913.02(A)(1),

a felony of the fifth degree, one count (Count Four) of theft (credit cards) in violation of

R.C. 2913.02(A)(1), a felony of the fifth degree, one count (Count Five) of misuse of a

credit card (less than $1,000) in violation of R.C. 2913.21(B)(2), a misdemeanor of the

first degree, and one count (Count Six) of receiving stolen property (less than $1,000) in
Muskingum County, Case No. CT2017-0069                                               3


violation of R.C. 2913.51(A), a misdemeanor of the first degree. At his arraignment on

June 7, 2017, appellant entered a plea of not guilty to the charges.

       {¶4}    On August 14, 2017, appellant entered a plea of guilty to six of the counts.

At the request of the State, Count Three of the Indictment (theft-checks) was dismissed.

       {¶5}    As memorialized in an Entry filed on September 19, 2017, appellant was

sentenced to an aggregate prison sentence of six (6) years and was ordered to pay

restitution the amount of $2,251.22.

       {¶6}    Appellant now appeals, raising the following assignment of error on appeal:

       {¶7}    “I. THE RECORD IN THIS MATTER DOES NOT SUPPORT MORE THAN

THE JOINT SENTENCING RECOMMENDATION PRESENTED TO THE COURT.”

                                              I

       {¶8}    Appellant, in his sole assignment of error, argues that the record does not

support his sentence. Appellant contends that the record does not support more than the

joint recommendation to the trial court that appellant serve four years in prison.

       {¶9}    Appellant was sentenced for both felonies and misdemeanors. He was

sentenced to six (6) years on Count One, to eleven (11) months on Count Two, to eleven

(11) months on Count Four, to six (6) months in jail on County Five and to six months in

jail on Count Six. The trial court ordered that the sentences be served concurrently for an

aggregate prison sentence of six (6) years.

       {¶10}    We review felony sentences not for an abuse of discretion, but rather using

the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. R.C. 2953.08(G)(2) provides we may either

increase, reduce, modify, or vacate a sentence and remand for resentencing where we
Muskingum County, Case No. CT2017-0069                                                   4


clearly and convincingly find that either the record does not support the sentencing court's

findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the

sentence is otherwise contrary to law.

       {¶11} Pursuant to Marcum, this court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that: (1) the record does not

support the trial court's findings under relevant statutes, or (2) the sentence is otherwise

contrary to law. Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477, 120 N.E.2d 118.

       {¶12} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are

to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions the court determines accomplish those purposes

without imposing an unnecessary burden on state or local government resources. To

achieve these purposes, the sentencing 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).

       {¶13} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria
Muskingum County, Case No. CT2017-0069                                                5


which do not control the court's discretion but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

       {¶14} Among the various factors that the trial court must consider and balance

under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the

victim as a result of the offense; (2) whether the offender has a history of criminal

convictions; (3) whether the offender has not responded favorably to sanctions previously

imposed by criminal convictions; and (4) whether the offender shows genuine remorse

for the offense. R.C. 2929.12.

       {¶15} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony

sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109

Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.

       {¶16} In the case sub judice, appellant, in support of his argument, contends that

the trial court ignored the fact that appellant showed genuine remorse for his actions and

accepted responsibility. Appellant also emphasizes that appellant had a turbulent family

history with a lot of family-involvement and that he recognized that he had a problem with

substance abuse.

       {¶17} The trial court, in sentencing appellant to six years and declining to follow

the joint recommendation of four years , noted that there were at least five children in the

house that appellant broke into and that appellant had a criminal history that included

assault, OVI, hit skip, disorderly conduct, resisting arrest, and aggravated menacing.

Appellant also had a grand theft in Florida. The trial court stated that it had reviewed the
Muskingum County, Case No. CT2017-0069                                              6


presentence investigation and a letter from the victims. The trial court further pointed out

that appellant took $20.00 from Peter Woods in exchange for giving him back his phone.

       {¶18} Based on the foregoing, we find that the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and recidivism

factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code. Upon a

thorough review, we find the record clearly and convincing supports the sentence

imposed by the trial court.

       {¶19} Appellant’s sole assignment of error is, therefore, overruled.

       {¶20} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, Earle, J. concur.
