[Cite as State v. Jones, 2016-Ohio-1120.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102995



                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            BRIAN JONES

                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-14-587168-A

        BEFORE: Kilbane, J., Keough, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                 March 17, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue - Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Frank Romeo Zeleznikar
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1}    In this delayed appeal, defendant-appellant, Brian Jones (“Jones”), appeals from

the sentence imposed upon his guilty pleas to one count of abduction and two counts of gross

sexual imposition. Having reviewed the record and the controlling case law, we affirm.

       {¶2}    On August 12, 2014, Jones was indicted in Cuyahoga C.P. No. CR-14-587168 for

rape, kidnapping with a sexual motivation specification, and three counts of gross sexual

imposition, all in connection with an assault upon a family member that was alleged to have

occurred on February 26, 2014. Jones pled not guilty to the charges, but on May 10, 2015, he

entered into a plea agreement with the state. In accordance with this plea agreement, the state

dismissed the rape charge and one count of gross sexual imposition, amended the kidnapping

charge to the lesser included offense of abduction, and dismissed the sexual motivation

specification. Jones then pled guilty to the reduced charge of abduction, in violation of R.C.

2905.02(A)(2), a felony of the third degree, and the two remaining counts of gross sexual

imposition in violation of R.C. 2907.05(A)(1), fourth-degree felonies.

       {¶3}    The matter proceeded immediately to sentencing. The court determined that

abduction merged with the gross sexual imposition charge in Count 3, and the state elected to

proceed on the offense of gross sexual imposition. The state then deferred to the trial court’s

determination as to whether the gross sexual imposition charges in Counts 3 and 4 merged with

one another.   The trial court concluded that all of the offenses merged into gross sexual

imposition as set forth in Count 3, a fourth-degree felony. The trial court sentenced Jones to 18

months of imprisonment. The trial court also designated Jones as a Tier I sex offender.

       {¶4} Jones now appeals, assigning the following error for our review:

                                       Assignment Error
       The trial court failed to consider whether its sentence utilized the minimum

       sanctions necessary to accomplish the goals of sentencing without unnecessarily

       burdening governmental resources.

       {¶5}    Within this assignment of error, Jones asserts that the trial court erred in ordering

him to serve an 18-month term because the court failed to make any findings to demonstrate that

the sentence is the minimum sanction necessary without unnecessarily burdening governmental

resources.

       {¶6}    Pursuant to R.C. 2953.08(G)(2), in reviewing felony sentences, the reviewing

court must determine whether it “clearly and convincingly” finds that (1) “the record does not

support the sentencing court’s findings under [R.C. 2929.14(C)(4)],” or that (2) “the sentence is

otherwise contrary to law.” The statute provides two separate grounds for claiming that a

sentence is contrary to law. State v. Bonds, 8th Dist. Cuyahoga No. 100481, 2014-Ohio-2766,

¶ 5. First, a sentence is contrary to law if it falls outside the statutory range for the particular

degree of offense. Id. Second, a sentence is contrary to law if the trial court fails to consider

the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing

factors set forth in R.C. 2929.12. Id. at ¶ 6. Thus, the trial court “has the full discretion to

impose any term of imprisonment within the statutory range, but it must consider the sentencing

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12.” State v. Hodges, 8th

Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7.

       {¶7}    With regard to the statutory range of possible penalties, R.C. 2929.13(A)

authorizes a court to impose any sanction or combination of sanctions on the offender that are

provided in R.C. 2929.14 to 2929.18.      Pursuant to R.C. 2929.14(A)(4), the penalty range for

fourth-degree felony gross sexual imposition is six, seven, eight, nine, ten, eleven, twelve,
thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.               Therefore, the

eighteen-month sentence imposed herein is within that statutory range.

       {¶8}    With regard to the statutory requirements, R.C. 2929.11 provides that a sentence

imposed for a felony shall be reasonably calculated to achieve 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 accomplish those

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

R.C. 2929.11. While the burden on resources is a relevant sentencing consideration under R.C.

2929.11(A), a sentencing court is not required to elevate resource conservation above seriousness

and recidivism factors. State v. Luyando, 8th Dist. Cuyahoga No. 97203, 2012-Ohio-1947,

¶ 14, citing State v. Burton, 10th Dist. Franklin No. 06AP-690, 2007-Ohio-1941, ¶ 19.

       {¶9}    In addition, R.C. 2929.11 requires that “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). The sentence imposed must also be “commensurate

with and not demeaning to the seriousness of the offender’s conduct and its impact upon the

victim” and “consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).

       {¶10} R.C. 2929.12 grants discretion to the trial court to determine the most effective way

to comply with the purposes and principles set forth in R.C. 2929.11.           In exercising this

discretion, the court must consider a nonexhaustive list of factors relating to the seriousness of

the offender’s conduct and the likelihood of recidivism and may, in addition, consider any other

factors relevant to achieving these purposes and principles of sentencing.
       {¶11} We further note that R.C. 2929.11 and 2929.12 are not factfinding statutes, and

consideration of the appropriate factors can be presumed unless the defendant affirmatively

shows to the contrary.   State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13; State

v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 119; State v. Dodson, 8th Dist.

Cuyahoga No. 100347, 2014-Ohio-2272, ¶ 16. The Bonds court explained as follows:

       This court has held that a trial court “fulfills its duty under the statutes by

       indicating that it has considered the relevant sentencing factors.” Smith, 8th

       Dist. Cuyahoga No. 100206, 2014-Ohio-1520, at ¶ 14, citing State v. Saunders,

       8th Dist. Cuyahoga No. 98379, 2013-Ohio-490, ¶ 4. The trial court “need not go

       through each factor on the record — it is sufficient that the court acknowledges

       that it has complied with its statutory duty to consider the factors without further

       elaboration.”     Id., citing State v. Pickens, 8th Dist. Cuyahoga No. 89658,

       2008-Ohio-1407, ¶ 6. In fact, consideration of the appropriate factors set forth in

       R.C. 2929.11 and 2929.12 can be presumed unless the defendant affirmatively

       shows to the contrary.         State v. Jones, 8th Dist. Cuyahoga No. 99759,

       2014-Ohio-29, ¶ 13; State v. Clayton, 8th Dist. Cuyahoga No. 99700,

       2014-Ohio-112, ¶ 7. (Where a criminal sentence is within the statutory limits, an

       appellate court should accord the trial court the presumption that it considered the

       statutory mitigating criteria in the absence of an affirmative showing that it failed

       to do so.)

Id., 8th Dist. Cuyahoga No. 100481, 2014-Ohio-2766, ¶ 7.

       {¶12} In this matter, the trial court stated:
       The Court having considered all the principles and purposes of felony sentencing,
       all the appropriate recidivism and seriousness factors finds that a prison term is
       necessary in this matter. That the defendant is not amendable to community
       control sanctions. Sir, it’s a serious matter. And I know that [the victim] has
       — had a tough life and — but sounds like she’s done remarkably well where she
       is now and that she continues to grow and to work on — not forgetting what
       happened but dealing with it; and so that she’s not victimized in the future and
       takes the power back that she has. So I’m going to find you’re not amendable to
       community control sanctions. I’m going to sentence you in Count 3 to 18
       months in the Lorain Correctional Institution.

       {¶13} The court additionally noted the familial relationship of the parties, and that Jones

committed the offense when the victim approached him for photos of her deceased mother, both

of which exacerbated the nature of the offense.     The court acknowledged on the record and in

the sentencing journal entry that it complied with its duty to consider the statutory factors.   The

court was not required to make additional factual findings to demonstrate such compliance.

The court stated, “the Court having considered all the principles and purposes of felony

sentencing, all the appropriate recidivism and seriousness factors finds that a prison term is

necessary in this matter.”

       {¶14} The court’s sentencing journal entry also states that “the court considered all

required factors of the law. The court finds that prison is consistent with the purpose of R.C.

2929.11.”

       {¶15} Accordingly, Jones has failed to affirmatively show, and the record does not

indicate, that the trial court failed to consider the statutory factors. Specifically, there is no

indication that the court failed to consider the sentence in relation to the burden placed on

governmental resources, and no indication that the sentence imposed places an undue burden on

governmental resources. The sole assignment of error is overruled.

       {¶16} 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. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.

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

Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

KATHLEEN A. KEOUGH, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
