[Cite as State v. Wenmoth, 2016-Ohio-5135.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 103520




                                     STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                JAMES R. WENMOTH

                                                           DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-15-593473-C

        BEFORE:         Jones, A.J., Keough, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: July 28, 2016
ATTORNEY FOR APPELLANT

Michael H. Murphy
20325 Center Ridge Road, Suite 512
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Kerry A. Sowul
        Amy Venesile
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:

       {¶1} Defendant-appellant James Wenmoth appeals his six-year sentence, which

was imposed after his plea to one count of aggravated robbery, a first-degree felony, with

a one-year firearm specification.1 We affirm.

       {¶2} This case arose from an incident that occurred on February 14, 2015.               On

that evening, Wenmoth was walking in the city of Cleveland with a small group of males.

 One of the males had a gun and a shot was fired into the air.           The police were called

after that first shot was heard.

       {¶3} As the police were in route to the scene, the victim, Saned Abdell Qader, was

driving down the street where the males were; Qader lived on the street, was returning

home, and was at his driveway at the time of the incident.        One of the males approached

Qader and asked him if he wanted to “party,” to which Qader responded “no.”                 Qader

stated that one of the males pulled a gun on him, and told him to give him everything he

had.   Qader had cigarettes and a phone, and as he was about to hand them over, the man

“cocked the gun and twisted it.”

       {¶4} Qader kicked the man, and then two of the other males jumped in the fray and

assaulted Qader.     The police arrived on the scene and Wenmoth and a codefendant,

Tyshawn Russell, ran, but were apprehended by the police in a backyard.              The weapon

was never recovered.      Qader’s wife watched the assault from a window in the couple’s

       1
         Wenmoth was indicted on two counts of aggravated robbery, with one- and three-year firearm
specifications.
home.    As a result of the assault, Qader had to have extensive dental work done.

        {¶5} Detective Daniel Lentz of the Cleveland police spoke at sentencing.

Detective Lentz told the court that the investigation revealed that Wenmoth had the gun at

some point during the group’s encounter with Qader. The detective told the court that

the defendants were deceitful throughout the police’s investigation of the case.      Their

deceit led to the arrest of one individual who the police later determined had not been

involved in the incident. Their deceit also resulted in an inordinate amount of time spent

investigating the case.   For example, Detective Lentz told the court that he listened to 60

jail telephone calls which the defendants were parties to, to determine what occurred in

this case. In the detective’s opinion, the defendants “lied to the very end, to the point

where they [were] blocked in with so much evidence, they [had] no other choice but to

take the plea arrangement.”

        {¶6} Wenmoth’s trial counsel told the court that Wenmoth was cannabis

dependent, had disruptive mood disorder, severe stimulant use, and Tourette’s Syndrome.

 Counsel also told the court that Wenmoth had a mild intellectual disability. According

to counsel, the gun used during the incident was not Wenmoth’s, but Wenmoth did take

the gun from one of the other males during their encounter with Qader because he had a

“problem of lack of proper mental processing and complications * * * [and an] inability

to think out processes.” Because of Wenmoth’s issues and young age (19 at the time of

the offense), counsel asked the court for the minimum sentence.

        {¶7} Wenmoth addressed the court and apologized to his own family and to Qader.
 He told the court that, at the time of the incident, he had not been taking his prescribed

medications, and when he is not medicated, he gets “out of control” and does “stupid

things.”

       {¶8} In sentencing Wenmoth, the court stated that “[w]hat you’ve presented me

today does not outweigh the presumption of going to prison. And so the probability and

presumption of going to prison does apply in your case.” The court sentenced Wenmoth

to one year on the firearm specification, to be served prior to and consecutive to a

five-year term on the underlying aggravated robbery.

       {¶9} The court distinguished Wenmoth’s actions from one of the codefendants,

Jonathan Albright, who was sentenced at the same hearing to a one-year prison term for

the firearm specification and an 18-month prison term for third-degree robbery, stating:

       And, the difference between your conduct and sentence and the sentence of
       Mr. Albright is, you had the weapon. You used it. You threatened
       [Qader] with it. His wife was watching. All of these circumstances place
       you in a significantly different category than Mr. Albright.

The court further noted that Wenmoth’s juvenile record was “significantly greater, both in

terms of numbers and in terms of the nature of the charges,” than Albright’s record.

       {¶10} The court also ordered both defendants jointly and severally liable for

restitution to Qader in the amount of $6,875, which was the cost of his dental treatments

resulting from the assault.2

       {¶11} Wenmoth’s sole assignment of error reads: “The sentence handed down by

       2
        The court stated that the other defendant, Tyshawn Russell, who was to be sentenced on
another date, may also be jointly and severally liable for the restitution amount.
the trial court was not commensurate with the crime committed.”        For the reasons set

forth below, we disagree.

       {¶12} When reviewing felony sentences, this court may increase, reduce, modify a

sentence, or vacate and remand for resentencing if we clearly and convincingly find that

the record does not support the sentencing court’s statutory findings, if applicable, or the

sentence is contrary to law. R.C. 2953.08(G)(2).    A sentence is contrary to law if (1) the

sentence falls outside the statutory range for the particular degree of offense, or (2) the

trial court failed to consider the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist.

Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga

No. 100206, 2014-Ohio-1520, ¶ 13.            In State v. Marcum, Slip Opinion No.

2016-Ohio-1002, the Ohio Supreme Court held that when a sentence is imposed solely

after consideration of the factors in R.C. 2929.11 and 2929.12, appellate courts “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.

       {¶13} When sentencing a defendant, the court must consider the sentencing

purposes and principles set forth in R.C. 2929.11, and the sentencing factors set forth in

R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7.

R.C. 2929.11(A) provides that a sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing:       (1) to protect
the public from future crime by the offender and others, and (2) to punish the offender

using the minimum sanctions that the court determines will accomplish those purposes.

The sentence imposed shall be “commensurate with and not demeaning to the seriousness

of the offender’s conduct and its impact on the victim, and consistent with sentences

imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

       {¶14} Further, the sentencing court must consider the seriousness and recidivism

factors set forth in R.C. 2929.12 in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. Hodges at ¶ 9.          R.C.

2929.12 provides a non-exhaustive list of factors a trial court must consider when

determining the seriousness of the offense and the likelihood that the offender will

commit future offenses.

       {¶15} Wenmoth contends that the trial court erred in the six-year sentence it

imposed based on the following: (1) “[n]owhere in the transcript is the ‘punish the

offender and protect the public’ language cited”; (2) the trial court “failed to state that it

weighed the factors regarding the offender’s conduct”; (3) the trial court did not “give

necessary weight” to his mental health and substance abuse issues; and (4) the more than

the minimum sentence was “clearly excessive in nature.”

       {¶16} In regard to Wenmoth’s contention that the trial court failed to cite statutory

language or make specific findings, R.C. 2929.11 and 2929.12 are not fact-finding

statutes.   Therefore, although the trial court must consider the principles and purposes of

sentencing as well as the mitigating factors as previously outlined, the court is not
required to use particular language or make specific findings on the record regarding its

consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,

951 N.E.2d 381, ¶ 31; State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13.

       {¶17} Rather, consideration of the appropriate factors can be presumed unless the

defendant affirmatively shows otherwise. Id., citing State v. Stevens, 1st Dist. Hamilton

No. C-130278, 2013-Ohio-5218, ¶ 12.          Moreover, a trial court’s statement in its

sentencing journal entry that it considered the required statutory factors is sufficient to

fulfill a trial court’s obligations under R.C. 2929.11 and 2929.12. State v. Sutton, 8th

Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 72, citing State v. Clayton,

8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9. Here, the sentencing entry states

that the court “considered all required factors of the law.   The court finds that prison is

consistent with the purposes of R.C. 2929.11.” That pronouncement was sufficient to

satisfy the trial court’s requirements under R.C. 2929.11 and 2929.12.

       {¶18} In regard to consideration of Wenmoth’s mental health and substance abuse

issues, both Wenmoth and his counsel addressed the court regarding those issues. The

court was free to give what weight it desired to those issues, so long as the sentence was

within the statutory limits.   Finding the presence of a potentially mitigating mental

health problem does not preclude a finding that the seriousness of the offense outweighs

the mitigating factor. See State v. Flaugher, 12th Dist. Clermont No. CA99-04-034,

1999 Ohio App. LEXIS 5242 (Nov. 8, 1999); State v. Lewis, 2d Dist. Greene No. 98 CA

70, 1999 Ohio App. LEXIS 3220 (July 9, 1999).
       {¶19} We likewise find no merit to Wenmoth’s contention that his more than the

minimum sentence was excessive.         The Eighth Amendment to the United States

Constitution states that “excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.”         Section 9, Article I of the Ohio

Constitution sets forth the same restriction: “Excessive bail shall not be required; nor

excessive fines imposed; nor cruel and unusual punishments inflicted.”           The final

clauses prohibit not only barbaric punishments, but also sentences that are

disproportionate to the crime committed. Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct.

3001, 77 L.Ed.2d 637 (1983). “It is well established that sentences do not violate these

constitutional provisions against cruel and unusual punishment unless the sentences are so

grossly disproportionate to the offenses as to shock the sense of justice in the

community.” (Citations omitted.) State v. Hamann, 90 Ohio App.3d 654, 672, 630

N.E.2d 384 (8th Dist.1993).

       {¶20} The Ohio Supreme Court has held that, “‘[a]s a general rule, a sentence that

falls within the terms of a valid statute cannot amount to a cruel and unusual

punishment.’” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d

1073, ¶ 21, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964).

       {¶21} Wenmoth was sentenced to a total six-year prison term, which included a

mandatory one-year term for the firearm specification.      The five-year sentence on the

underlying aggravated robbery was within the statutory range and was closer to the

minimum, rather than the maximum, for the first-degree felony offense.            See R.C.
2929.14(A)(1) (“For a felony of the first degree, the prison term shall be three, four, five,

six, seven, eight, nine, ten, or eleven years.”).   The record demonstrates that Qader, the

victim, suffered injury to his mouth during the course of the incident, which required over

$6,000 worth of dental work to repair. Qader’s wife witnessed the attack. Further,

Wenmoth used a gun during the attack.      On this record, the trial court’s sentence was not

excessive.

       {¶22} In light of the above, Wenmoth’s sole assignment of error is overruled.

       {¶23} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR
