[Cite as State v. Gamache, 2018-Ohio-4170.]




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




STATE OF OHIO,
                                                         CASE NO. 1-18-26
       PLAINTIFF-APPELLEE,

       v.

AVERI GAMACHE,                                           OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR 2017 0291

                                     Judgment Affirmed

                           Date of Decision: October 15, 2018



APPEARANCES:

        Joseph C. Patituce and Catherine Meehan for Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-26


WILLAMOWSKI, P.J.


       {¶1} Defendant-appellant Averi Gamache (“Gamache”) appeals the

judgment of the Allen County Court of Common Pleas, alleging the trial court erred

in sentencing her to an aggregate ten-year prison sentence. For the reasons set forth

below, the judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} On October 13, 2017, Gamache was indicted with one count of

aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1); one count of

aggravated possession of drugs in violation of R.C. 2925.11(C)(1)(c); one count of

possession of heroin in violation of R.C. 2925.11(A); and three counts of aggravated

possession of drugs in violation of R.C. 2925.11(A). Doc. 4. The crime of

aggravated trafficking was alleged to have been committed on March 22, 2017.

Doc. 1. The other four crimes were alleged to have been committed on March 27,

2017. Doc. 1. On February 9, 2018, Gamache pled guilty to one count of

aggravated trafficking in drugs and one count of aggravated possession of drugs.

Doc. 40. The remaining three counts listed in the indictment were dismissed. Doc.

40.




                                         -2-
Case No. 1-18-26


       {¶3} On April 26, 2018, Gamache appeared for sentencing. Tr. 1. During

the sentencing hearing, the trial court considered the content of a presentence

investigation. Tr. 20. The trial court then sentenced Gamache to eight years in

prison for the count of aggravated trafficking in drugs and two years in prison for

the count of aggravated possession of drugs. Doc. 56. The trial court ordered that

these sentences be served consecutively. Tr. 21.

                                Assignment of Error

       {¶4} Appellant filed her notice of appeal on May 10, 2018. Doc. 59. On

appeal, appellant raises the following assignment of error:

       The trial court erred in sentencing defendant to a ten-year term
       of incarceration.

On appeal, Gamache argues that the record does not support the trial court’s findings

regarding the seriousness and recidivism factors. Gamache also takes issue with a

statement made by the trial court during sentencing, which reads as follows:

       I take into consideration everything in the P.S.I. with regard to
       the prior record, which has been argued, no prison sentence
       before, but prior felony, prior attempts—I think even more so
       important, and I know things that are charged, or things that are
       pending aren’t necessarily convictions, but I mean, just this—you
       were just out of control here in the last—seems like in the last year
       or so.

       Now I don’t know what’s gonna happen in those counties, but just
       the fact that they’re there and not counting them as convictions
       necessarily, because I don’t know what the disposition is on all
       those, but just—just to be in those situations, you’re [life] was out
       of control.


                                        -3-
Case No. 1-18-26



Tr. 20. Pointing to this statement, Gamache argues that the trial court impermissibly

considered unadjudicated conduct in determining her sentence.

                                   Legal Standard

       {¶5} Under R.C. 2953.08(G)(2), appellate courts may vacate, increase,

reduce, or modify a sentence if it “clearly and convincingly finds” (1) that the record

does not support the findings made by the trial court under R.C. 2929.13, R.C.

2929.14, or R.C. 2929.20; or (2) that the sentence is “otherwise contrary to law.”

R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 1.

       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 established.

State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86 (3d Dist.), ¶ 12, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus

(1954).

       {¶6} “[T]rial courts have full discretion to impose any prison sentence within

the statutory range as long as they consider the purposes and principles of felony

sentencing and the seriousness and recidivism factors.” State v. Close, 3d Dist.

Logan No. 8-17-45, 2018-Ohio-2244, ¶ 5.



                                         -4-
Case No. 1-18-26


       R.C. 2929.11 provides that sentences for a felony shall be guided
       by the overriding purposes of felony sentencing: “to protect the
       public from future crime by the offender and others and to punish
       the offender.” R.C. 2929.11(A). In order to comply with those
       purposes and principles, R.C. 2929.12 instructs a trial court to
       consider various factors set forth in the statute relating to the
       seriousness of the conduct and to the likelihood of the offender’s
       recidivism. R.C. 2929.12(A) through (D). In addition, a trial
       court may consider any other factors that are relevant to
       achieving the purposes and principles of sentencing. R.C.
       2929.12(E).

Id., quoting State v. Alselami, 3d Dist. Hancock No. 5-11-31, 2012-Ohio-987, ¶ 21.

       {¶7} “Although the trial court must consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.

2929.12, the sentencing court is not required to ‘[s]tate on the record that it

considered the statutory criteria or discuss[ed] them.’” State v. Witt, 3d Dist.

Auglaize No. 2-17-09, 2017-Ohio-7441, ¶ 10, quoting State v. Maggette, 3d Dist.

Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 32. “A trial court’s statement that it

considered the required statutory factors, without more, is sufficient to fulfill its

obligations under the sentencing statutes.” State v. Nienberg, 3d Dist. Putnam Nos.

12-16-15, 12-16-16, 2017-Ohio-2920, ¶ 12, quoting Maggette, supra, at ¶ 32.

                                  Legal Analysis

       {¶8} In this case, Gamache pled guilty to two charges: aggravated trafficking

and aggravated possession. The prison sentences imposed for both of these crimes

were within the statutorily prescribed range.             R.C. 2929.14(A); R.C.



                                         -5-
Case No. 1-18-26


2925.03(C)(1)(d); R.C. 2925.11(C)(1)(c). The transcript of the sentencing hearing

shows that the trial court considered the content of the presentence investigation and

evaluated the facts of this case using the seriousness and recidivism factors listed in

R.C. 2929.12. Tr. 16-19. Regarding the seriousness factors, the trial court found

that Gamache “committed the offenses as part of an organized criminal activity.”

Tr. 16. The trial court also found that Gamache did not “expect to cause physical

harm to persons or property.” Tr. 17.

       {¶9} After the analysis of the seriousness factors, the trial court concluded

that

       the serious factors and less serious factors pretty—kind of balance
       each other out. Needless to say though, the recidivism factors are
       what weigh heavily in the Court’s consideration of the sentencing
       of this case.

Tr. 18. The trial court then turned to the recidivism factors. Tr. 18. The trial court

gave “a lot of weight” to Gamache’s prior criminal history; noted that she committed

these offenses while on community control; and considered the fact that Gamache

used drugs in violation of the conditions of her bond. Tr. 18. The trial court also

noted that Gamache did not have a juvenile record and found that Gamache

exhibited a genuine remorse. Tr. 18. The trial court then sentenced Gamache to an

eight-year sentence and a two-year sentence that were to be served consecutively.

Tr. 21. The trial court stated that a prison term was consistent with the principles of

sentencing and that this sentence was commensurate with the seriousness of her


                                         -6-
Case No. 1-18-26


conduct. Tr. 19. In making these findings, the trial court cited specific facts in the

record. Tr. 16-20. Since the trial court imposed a sentence within the statutory

range and considered the facts in the record under the factors listed in R.C. 2929.12,

we find that Gamache has not carried the burden of clearly and convincingly

demonstrating that her sentence is contrary to law or unsupported by the record.

       {¶10} Further, we find that the trial court did not act improperly in

referencing the proceedings pending against Gamache in other jurisdictions that

were listed in the presentence investigation. “[A] mere reference to a defendant’s

unadjudicated conduct by the trial court, without an imposition of sentence on the

basis of that conduct, does not give rise to an error.” State v. Montgomery, 3d Dist.

Crawford Nos. 3-08-10, 3-08-11, 2008-Ohio-6182, ¶ 13. In this case, the record

shows that the trial court had a number of reasons that were, in themselves, a

sufficient basis on which to impose this sentence. See State v. Park, 3d Dist.

Crawford No. 3-06-14, 2007-Ohio-1084, ¶ 7-8. The transcript of the sentencing

hearing also does not indicate that the trial court based its decision on these other

criminal proceedings. Rather, the trial court merely referenced these proceedings

in the context of discussing her drug addiction, noting that her life appeared to be

“out of control.” Tr. 20. For these reasons, appellant’s sole assignment of error is

overruled.




                                         -7-
Case No. 1-18-26


                                   Conclusion

       {¶11} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Allen County Court of Common Pleas is

affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hls




                                       -8-
