[Cite as State v. Evans, 2020-Ohio-736.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NO. 2019-P-0051
         - vs -                                  :

 DWIGHT D. EVANS,                                :

                  Defendant-Appellant.           :


 Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR
 01038.

 Judgment: Affirmed.


 Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
 Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

 Carlo A. Ciccone, 137 East Market Street, Warren, OH 44481 (For Defendant-
 Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Dwight D. Evans (“Mr. Evans”), appeals the judgment of the

Portage County Court of Common Pleas sentencing him to 24 months in prison following

his guilty plea to aggravated possession of drugs, a felony of the third degree.

        {¶2}      Mr. Evans contends that the record does not reflect that the trial court

considered the sentencing factors in R.C. 2929.12.
       {¶3}    After a careful review of the record and pertinent law, we find that the record

supports the inference that the trial court properly considered the factors in R.C. 2929.12.

Thus, we affirm the judgment of the Portage County Court of Common Pleas.

                           Substantive and Procedural History

       {¶4}    In October 2018, a police officer with the Kent Police Department pulled Mr.

Evans over for a traffic stop and discovered his driver’s license was suspended. After Mr.

Evans exited the vehicle, the officer observed a plastic bag on the driver’s floorboard that

contained methamphetamine. The officer then arrested Mr. Evans.

       {¶5}    The Portage County Grand Jury indicted Mr. Evans on one count of

aggravated possession of drugs, a felony of the third degree, in violation of R.C.

2925.11(A) and (C)(1)(b) (Count 1), and one count of driving under suspension, a

misdemeanor of the first degree, in violation of R.C. 4510.11(A) (Count 2). Mr. Evans

initially entered pleas of not guilty.

       {¶6}    In December 2018, Mr. Evans entered a written and oral plea of guilty to

Count 1. The trial court accepted Mr. Evans’ guilty plea to Count 1, found him guilty,

dismissed Count 2, and referred Mr. Evans to the adult probation authority for a pre-

sentence investigation and to the Northeast Ohio Community Alternative Program

(“NEOCAP”) for an evaluation.

       {¶7}    In February 2019, the trial court held a sentencing hearing.          Defense

counsel spoke on Mr. Evans’ behalf and requested intensive supervised probation so that

Mr. Evans could stay involved in his children’s lives. He stated that Mr. Evans’ criminal

record consisted of misdemeanors and driving convictions, other than a 2009 case for

which Mr. Evans successfully completed probation; Mr. Evans grew up without a father




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in his life; Mr. Evans has been participating in programs through children services

regarding parenting skills and addiction; and Mr. Evans had no positive drug tests,

although he had a misdemeanor case scheduled for arraignment.

       {¶8}   The state indicated it concurred with the PSI and with NEOCAP.

       {¶9}   Mr. Evans spoke on his own behalf and referenced his recent sobriety and

counseling efforts. The transcript of the sentencing hearing reflects that Mr. Evans’

statement ended mid-sentence.

       {¶10} The trial court reminded Mr. Evans of the presumption of a prison term for

his offense and stated that he had not overcome that presumption. It found that Mr. Evans

was not amenable to community control sanctions and that a prison term was warranted.

It sentenced to Mr. Evans to a prison term of 24 months with credit for 20 days served, a

mandatory fine of $5,000, the indigent assessment and recoupment fee, and court costs.

       {¶11} In its sentencing entry memorializing Mr. Evans’ sentence, the trial court

stated it considered (1) “the purpose [sic] of felony sentencing which is to protect the

public from future crime by the Defendant and to punish the Defendant using the minimum

sanctions that the Court determines to accomplish those purposes without imposing an

unnecessary burden on state or local government resources,” (2) “the need for

incapacitating the Defendant, deterring the defendant and others from future crime,

rehabilitating the Defendant, making restitution to the victim of the offense, the public or

both,” and (3) “the evidence presented by counsel, oral statements, any victim impact

statements, the Pre-Sentence Report and the defendant’s statement.”

       {¶12} Mr. Evans appealed and raises the following sole assignment of error:




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       {¶13} “The trial court abused its discretion in sentencing Evans to two (2) years

incarceration without considering the factors set forth in R.C. 2929.12.”

                                    Standard of Review

       {¶14} The standard of review for felony sentences is governed by R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶16.                   That

provision states as follows:

       {¶15} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

       {¶16} “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 of 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:

       {¶17} “(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;

       {¶18} “(b) That the sentence is otherwise contrary to law.”

       {¶19} 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




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established.   Marcum at ¶22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),

paragraph three of the syllabus.

                                       R.C. 2929.12

       {¶20} In his sole assignment of error, Mr. Evans argues that the trial court abused

its discretion in sentencing him to a prison term of 24 months without considering the

factors set forth in R.C. 2929.12.

       {¶21} As previously indicated, we do not review felony sentences for abuse of

discretion. Rather, a sentence is contrary to law if the trial court failed to consider the

sentencing factors in R.C. 2929.12. (Citations omitted.) See State v. Wilson, 11th Dist.

Lake No. 2017-L-028, 2017-Ohio-7127, ¶18. Thus, our review involves whether Mr.

Evans has established that his sentence is clearly and convincingly contrary to law.

                                     Legal Standards

       {¶22} R.C. 2929.11 and R.C. 2929.12 apply as a general judicial guide for every

sentencing. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶36. R.C. 2929.11(A)

states that the court “shall be guided by the overriding purposes of felony sentencing,”

which are “[1] to protect the public from future crime by the offender and others, [2] to

punish the offender, and [3] to promote the effective rehabilitation of the offender using

the minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.”

       {¶23} To “achieve those purposes,” the 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).




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       {¶24} R.C. 2929.12(A) grants the sentencing judge discretion “to determine the

most effective way to comply with the purposes and principles of sentencing.” Foster at

¶37. In exercising that discretion, the court shall consider, along with any other “relevant”

factors, the seriousness factors set forth in divisions (B) and (C) and the recidivism factors

in divisions (D) and (E) of R.C. 2929.12.          Id.   These statutory sections provide a

nonexclusive list for the court to consider. Id.

                                          Analysis

       {¶25} Mr. Evans argues that the trial court sentenced him to incarceration without

inferring in the record to any factors set forth in R.C. 2929.12. Mr. Evans cites to State v.

Kerns, 161 Ohio App.3d 76, 2005-Ohio-2578 (4th Dist.), where the Fourth District Court

of Appeals reversed the trial court's sentence after finding the trial court did not

adequately consider the R.C. 2929.12 factors. Id. at ¶24. Specifically, the Fourth District

found as follows:

       {¶26} “Although the sentencing entry in this case makes an oblique reference to

the effect that the trial court considered those factors set out in R.C. 2929.12, it contains

no discussion of those factors or explanation why the trial court decided to sentence

appellant to a term of imprisonment one year below the maximum allowable sentence.

Moreover, appellant correctly points out that nothing in the transcript indicates that the

trial court considered the factors during the sentencing hearing.” Id. at ¶19.

       {¶27} Mr. Evans’ reliance on Kerns is misplaced. This court follows the Supreme

Court of Ohio’s holding in State v. Adams, 37 Ohio St.3d 295 (1988), that “[a] silent record

raises the presumption that a trial court considered the factors contained in R.C. 2929.12.”

State v. Masterson, 11th Dist. Portage No. 2009-P-0064, 2010-Ohio-4939, ¶12, quoting




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Adams at paragraph three of the syllabus. The defendant has the burden to come forward

with evidence to rebut the presumption that the trial court considered the sentencing

criteria. State v. Nenzoski, 11th Dist. Portage No. 2007-P-0044, 2008-Ohio-3253, ¶63.

       {¶28} Although the trial court in the underlying case did not specifically address

the R.C. 2929.12 factors, the record supports the inference that it considered them. A

court is not required to “use specific language or make specific findings on the record in

order to evince the requisite consideration of the applicable seriousness and recidivism

factors [of R.C. 2929.12].” State v. Arnett, 88 Ohio St.3d 208, 215 (2000).

       {¶29} Here, the trial court stated in its sentencing entry that it considered “the

evidence presented by counsel, oral statements, any victim impact statements, the Pre-

Sentence Report, and the defendant’s statement.” We have previously determined that

such a finding supports an inference that the trial court properly considered the R.C.

2929.12 factors. See State v. Bernadine, 11th Dist. Portage No. 2010-P-0056, 2011-

Ohio-4023, ¶37.

       {¶30} Further, the trial court expressly found that Mr. Evans did not overcome the

presumption of prison for his offense, that he was not amenable to community control

sanctions, and that a prison term was warranted. Mr. Evans’ offense of aggravated

possession of drugs constitutes a felony of the third degree for which there is a

presumption for a prison term.        See R.C. 2925.11(C)(1)(b).        Pursuant to R.C.

2929.13(D)(2), the sentencing court may impose community control sanctions instead of

a prison term for such an offense if it makes both of the following findings:

       {¶31} “(a) A community control sanction or a combination of community control

sanctions would adequately punish the offender and protect the public from future crime,




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because the applicable factors under section 2929.12 of the Revised Code indicating a

lesser likelihood of recidivism outweigh the applicable factors under that section indicating

a greater likelihood of recidivism.

       {¶32} “(b) A community control sanction or a combination of community control

sanctions would not demean the seriousness of the offense, because one or more factors

under section 2929.12 of the Revised Code that indicate that the offender's conduct was

less serious than conduct normally constituting the offense are applicable, and they

outweigh the applicable factors under that section that indicate that the offender's conduct

was more serious than conduct normally constituting the offense.”

       {¶33} The trial court’s findings demonstrate that it considered R.C. 2929.13(D)(2).

Consideration of R.C. 2929.13(D)(2) necessarily involves consideration of the R.C.

2929.12 factors. Thus, the record supports an inference that the trial court considered

the R.C. 2929.12 factors.

       {¶34} Mr. Evans also cites to State v. Mateo, 150 Ohio App.3d 489, 2002-Ohio-

6852 (1st Dist.), where the First District vacated a defendant’s sentence and remanded

for resentencing because “the trial court failed to specify that prison was consistent with

sentencing purposes.”       Id. at ¶7. In Mateo, the record disclosed that the trial court

sentenced the defendant to a prison term for a fourth-degree felony, contrary to the

statutory presumption of community control sanctions for the offense, merely because of

his status as an illegal alien. Id. at ¶5.

       {¶35} Unlike in Mateo, the statutory presumption for Mr. Evans’ offense was a

prison term. Although not required to do so, the trial court expressly determined that the

presumption had not been overcome. There is also no indication in the record that the




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trial court sentenced Mr. Evans to prison based on an inappropriate factor. Thus, we find

Mateo to be inapposite to the present matter.

       {¶36} Finally, Mr. Evans argues that the trial court did not give him an opportunity

to overcome the presumption of a prison term because it did not obtain his full statement

at the sentencing hearing.

       {¶37} The transcript of the sentencing hearing reflects that Mr. Evans’ statement

ended mid-sentence and that the trial court began speaking. However, “[a] record * * *

unlike a play, is unaccompanied by stage directions” and thus does not disclose

significant gestures or express the length of pauses. State v. Roach, 7th Dist. Belmont

No. 15 BE 0031, 2016-Ohio-4656, ¶13, quoting Green v. United States, 365 U.S. 301,

305 (1961). Thus, it is not clear whether Mr. Evans trailed off mid-sentence or whether

the trial court interrupted him.

       {¶38} Even if the trial court interrupted Mr. Evans, defense counsel had previously

given a statement on Mr. Evans’ behalf and provided information in mitigation of

punishment, including Mr. Evans’ recent sobriety and counseling efforts. See id. at 17

(finding no error where defense counsel’s statement referenced mitigating factors).

       {¶39} Accordingly, Mr. Evans has not established by clear and convincing

evidence that the trial court failed to consider R.C. 2929.12.

       {¶40} Based on the foregoing, the trial court’s judgment is affirmed.



THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.




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