[Cite as State v. Holcomb, 2017-Ohio-2579.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-16-1112

          Appellee                                 Trial Court No. CR0201601028

v.

Kevin Holcomb                                      DECISION AND JUDGMENT

          Appellant                                Decided: April 28, 2017

                                              *****

          Julia R. Bates, Lucas County Prosecuting Attorney, and
          Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

          Julie Jacek Bookmiller, for appellant.

                                              *****

          JENSEN, P.J.

          {¶ 1} Appellant, Kevin Holcomb, appeals his sentence from the May 5, 2016

judgment of the Lucas County Court of Common Pleas. For reasons that follow, we

affirm.
                                  Assignment of Error

       {¶ 2} Appellant sets forth the following assignment of error:

              The Trial Court’s sentence was contrary to law.

                                           Facts

       {¶ 3} This matter arises out of an alleged robbery that occurred on December 1,

2015. Appellant was identified by the victim as one of three offenders. Appellant was a

drug dealer and member of the “X-Blocc” gang. On record, appellant admitted that his

X-Blocc membership dated back to 2007.

       {¶ 4} During the December 1, 2015 alleged robbery, appellant entered the victim’s

vehicle as one of the other offenders put a gun to the victim’s head. Appellant then

allegedly went through the victim’s pockets and took the victim’s money, watch, ring,

keys and phone.

       {¶ 5} On January 7, 2016, appellant was indicted on three counts: aggravated

robbery with firearm and gang participation specifications in violation of R.C.

2911.01(A)(1), a felony of the first degree; having a weapon under disability in violation

of R.C. 2923.13(A)(3), a felony of the third degree; and, participating in a criminal gang

in violation of R.C. 2923.42(A) and (B), a felony of the second degree.

       {¶ 6} On April 20, 2016, appellant entered a plea of guilty to participation in a

criminal gang in violation of R.C. 2923.42(A) and (B), a felony of the second degree.

The other counts of his indictment were dismissed. After entering his plea, the court




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noted appellant was on probation and had outstanding warrants for domestic violence and

driving impaired. Sentencing was set for May 4, 2016.

       {¶ 7} At sentencing, the court stated that it reviewed and considered the record,

oral statements and presentence investigation report. The court also stated that it

considered the principles and purposes of sentencing under R.C. 2929.11, and that it

balanced the seriousness, recidivism and other factors under R.C. 2929.12. Based on its

considerations, the court sentenced appellant to five years incarceration and three years

postrelease control for the participation in a criminal gang conviction. Appellant’s

codefendant, who put a gun to the victim’s head during the December 1, 2015 alleged

robbery, on the other hand, only received two years incarceration, following his guilty

plea, for his conviction for participation in a criminal gang.

       {¶ 8} Appellant’s imposed sentence was journalized May 5, 2016. Appellant’s

timely appeal followed.

                                    Standard of Review

       {¶ 9} We review felony sentences under a two-prong approach. R.C.

2953.08(G)(2) provides that an appellate court may increase, reduce, modify, or vacate

and remand a disputed sentence if it clearly and convincingly finds either of the

following:

              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,




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       whichever, if any, is relevant; or (b) That the sentence is otherwise contrary

       to law.

See State v. McClanahan, 6th Dist. Ottawa No. OT-14-024, 2014-Ohio-5597, ¶ 9.

                                  Law & Analysis

       {¶ 10} In the sole assigned error, appellant challenges his imposed sentence as

contrary to law by asserting that his sentence was excessive compared to that of his

codefendant. Appellee contends the record is devoid of evidence from which the court

can conclude appellant’s sentence is disproportionate to that of his codefendant.

       {¶ 11} “[A] defendant claiming inconsistent sentencing must show the trial court

failed to properly consider the statutory sentencing factors and guidelines found in R.C.

2929.11 and 2929.12.” State v. Conn, 12th Dist. Warren Nos. CA2014-04-059, CA2014-

04-061, CA2014-06-084, 2015-Ohio-1766, ¶ 28. See also McClanahan at ¶ 16 (“Rather,

to demonstrate that a sentence is inconsistent, an offender must show that the trial court

did not properly consider applicable sentencing criteria found in R.C. 2929.11 and

2929.12.”).

       {¶ 12} As articulated below, we find the record in this case reflects that the trial

court properly proceeded under R.C. 2929.11 and 2929.12, and therefore appellant’s

sentence cannot be deemed disproportionate or inconsistent.

                         Principles and Purposes of Sentencing

       {¶ 13} R.C. 2929.11(A) pertinently provides, “[t]he overriding purposes of felony

sentencing are to protect the public from future crime by the offender and others and to




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punish the offender using the minimum sanctions.” It follows, “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.” See R.C. 2929.11(A); see State v. Craig, 6th Dist. Wood

No. WD-14-061, 2015-Ohio-1479, ¶ 10.

       {¶ 14} A felony sentence, therefore, “shall be reasonably calculated to achieve the

two overriding purposes * * * set forth in [R.C. 2929.11(A)], 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.” See R.C. 2929.11(B); see State v. Besteder, 6th Dist. Lucas No. L-13-1257,

2014-Ohio-3760, ¶ 8.

       {¶ 15} In this case, at the May 4, 2016 sentencing hearing, the trial court

specifically discussed its concern that appellant participated in a criminal gang since

2007, had 24 misdemeanor convictions, had a prior felony, had felonies as a juvenile, and

had active warrants for domestic violence and driving impaired. The court also noted,

“of more concern[,]” that appellant was once sentenced and granted judicial release but

subsequently incurred multiple violations, which lead to an unsuccessful discharge from

probation. Therefore, we find there is ample support on record the court complied with

R.C. 2929.11, and the sentence is not contrary to law on that basis.

       {¶ 16} Moreover, appellant fails to show his sentence was inconsistent with

similarly situated offenders, including that of his codefendant.




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       {¶ 17} R.C. 2929.14(A)(2) provides a statutory prison term range for participation

in a criminal gang, which is a second-degree felony, as two to eight years.

       {¶ 18} In this case, appellant was sentenced to five years incarceration for his

participating in a criminal gang conviction. This sentence is within the permissible

statutory range, and is also found to be consistent with sentences imposed for other

offenders convicted of participation in a criminal gang. See, e.g., State v. Nelson, 6th

Dist. Lucas No. L-15-1190, 2016-Ohio-7115, ¶ 14 (imposing seven years incarceration

for gang participation); State v. Gibson, 6th Dist. Lucas Nos. L-13-1222, L-13-1223,

2015-Ohio-1679, ¶ 17 (imposing eight years incarceration for gang participation); State v.

Nobles, C.P. No. G-480 1-CR-0201402780-000, 2015 Ohio Misc. LEXIS 22608

(Aug. 28, 2015) (imposing six years incarceration for gang participation). Thus, the court

properly imposed sentence within the statutory range and appellant’s sentence is not

contrary to law on that basis.

       {¶ 19} Further, we note, although appellant attaches a final judgment entry

reflecting his codefendant’s sentence, appellant provides no additional evidence of record

regarding his codefendant’s criminal history. See State v. Jones, 6th Dist. Ottawa No.

OT-14-042, 2015-Ohio-4209, ¶ 24 (stating that “absent evidence that the sentence was

inconsistent or disproportionate we must conclude that the sentence was not clearly or

convincingly contrary to law.”); see also State v. Newman, 6th Dist. Wood No.

WD-15-031, 2016-Ohio-2667, ¶ 7 (“Without a complete appellate record, we must

presume the regularity of the proceedings.”).




6.
       {¶ 20} Therefore, because we find appellant’s sentence was in accordance with

statutory guidelines of R.C. 2929.14(A)(2), and that the sentence is found consistent with

similar crimes committed by similar offenders, there is nothing on record to find

appellant’s sentence was inconsistent with that of his codefendant under R.C. 2929.11.

                          Seriousness and Recidivism Factors

       {¶ 21} R.C. 2929.12(A) pertinently provides, “a court that imposes a sentence

under this chapter upon an offender for a felony has discretion to determine the most

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

       {¶ 22} In this determination, “R.C. 2929.12 provides a non-exhaustive list of

factors the court must consider in determining the relative seriousness of the underlying

crime and the likelihood that the defendant will commit another offense in the future.”

State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26. However, a

sentencing court is not required to use any specific language or make specific findings to

demonstrate that it considered the applicable seriousness and recidivism factors. See

State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

       {¶ 23} In this case, the May 5, 2016 sentencing entry states, “[t]he Court has

considered the * * * principles and purposes of sentencing under R.C. 2929.11, and has

balanced the seriousness, recidivism and other relevant factors under R.C. 2929.12.”

Based on our independent review of the record, we cannot say the trial court committed

reversible error when imposing five years incarceration upon appellant. Factoring in

appellant’s criminal record, the seriousness of his gang activity, and appellant’s chance of




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recidivism based on his past conduct and probation violations, we find sufficient basis to

conclude the finding under R.C. 2929.12 was amply supported by the record. Thus, the

imposed sentence is not contrary to law on that basis. Appellant’s sole assignment of

error is found not well-taken.

                                       Conclusion

       {¶ 24} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay costs of this appeal pursuant to App.R.24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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