         [Cite as State v. Jackson, 2019-Ohio-1688.]




                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO

STATE OF OHIO,                                     :   APPEAL NO. C-180162
                                                       TRIAL NO. B-1603992
        Plaintiff-Appellee,                        :
                                                          O P I N I O N.
  vs.                                              :

TREVON JACKSON,                                    :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 3, 2019


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.


       {¶1}     After violating his community control requirements twice, the

defendant now challenges his ensuing 30-month prison sentence on appeal, alleging

that the record fails to support the sentence. The record, however, shows to the

contrary and amply supports the trial court’s decision to impose prison time for the

violations. We find that the trial court properly exercised its discretion, and we

accordingly affirm its decision.

                                              I.

       {¶2}     This case flows from defendant-appellant Trevon Jackson’s initial run-

in with the law in 2016 when he pled guilty to, and was convicted of, having weapons

while under a disability. His sentence included three years of intensive supervised

probation, which he violated about a year later. The trial court provided Mr. Jackson

with another opportunity to avoid prison while under community control, but Mr.

Jackson again strayed from the path, violating his community control for a second

time in 2018.      Mr. Jackson pled not guilty to this second community control

violation.    After an evidentiary hearing on the matter (consisting of in-person

testimony by several witnesses), the trial court revoked Mr. Jackson’s community

control and sentenced him to 30 months in prison (less about a year of credit),

finding that he violated multiple community control conditions.

       {¶3}     During the evidentiary hearing, the trial court heard testimony from

several individuals, including two probation department employees, two deputy

sheriffs, and Mr. Jackson himself. That testimony established that Mr. Jackson

showed little regard for the conditions of his electronic monitoring, going to several

places without authorization. On one notable occasion, Mr. Jackson wandered over

to his girlfriend’s neighborhood to intimidate a young woman, threatening to kill her

                                              2
                    OHIO FIRST DISTRICT COURT OF APPEALS



upon his release from electronic monitoring. Soon after that incident, probation

officers found on Mr. Jackson’s cell phone a picture of himself holding a gun and an

incriminating text conversation with his girlfriend, where Mr. Jackson discussed

with her information concerning purchasing a firearm. Mr. Jackson was not allowed

to have a firearm at the time, and of course his unlawful possession of a firearm led

to his underlying conviction.

       {¶4}   Based on this evidence, the trial court found Mr. Jackson guilty of

violating the terms of his community control.          In line with the probation

department’s recommendation for prison, the trial court sentenced Mr. Jackson to

30 months in prison for violating multiple community control conditions, including

breaking the terms of his electronic monitoring, attempting to acquire a firearm, and

failing to provide a required drug screen. Mr. Jackson now appeals the trial court’s

decision.

                                            II.

       {¶5}   On appeal, Mr. Jackson’s sole assignment of error challenges the

record support for the trial court’s revocation of community control and 30-month

prison sentence. As provided by R.C. 2953.08(G)(2), on review of a felony sentence,

a court “may vacate or modify a felony sentence on appeal only if it determines by

clear and convincing evidence that the record does not support the trial court’s

findings under relevant statutes or that the sentence is otherwise contrary to law.”

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

“Following a community control violation, the trial court conducts a second

sentencing hearing. At this second hearing, the court sentences the offender anew

and must comply with the relevant sentencing statutes.” State v. Fraley, 105 Ohio

St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17. However, “the trial court is not

                                             3
                       OHIO FIRST DISTRICT COURT OF APPEALS



required to note its consideration of all the sentencing factors.” State v. Bedell,

2018-Ohio-721, 107 N.E.3d 160, ¶ 29 (1st Dist.).

        {¶6}    Mr. Jackson first argues that the trial court failed to consider

appropriate mitigating evidence, highlighting his remorse, “whether he had refused

to acknowledge a pattern of drug abuse,”1 and the lack of physical harm to person or

property. Yet, not only does Mr. Jackson fail to make any affirmative demonstration

that the trial court did not consider these factors, but the trial court explained that it

considered both the sentencing purposes and principles along with relevant

mitigating factors. Indeed, the trial court explicitly stated that it “considered the

statements of counsel and the defendant today,” which includes Mr. Jackson’s

expression of remorse. And the court emphasized: “The Court has considered the

record, and in particular the defendant’s testimony and several witnesses who

testified in this probation violation hearing * * *.” While the violations did not

involve a harm to person or property, the trial court certainly considered that they

related to the exact issue underlying his conviction—the unlawful possession of a

firearm. And the threats that he made to the young woman assumed significance in

light of his prior convictions for aggravated menacing.

        {¶7}    Absent a showing to the contrary, this court should presume that the

trial court considered the appropriate statutory provisions and all relevant mitigating

factors. State v. Patterson, 1st Dist. Hamilton No. C-170329, 2018-Ohio-3348, ¶ 60

(“R.C. 2929.11 and 2929.12 are not ‘fact finding’ statutes, and * * * we may presume a

trial court considered these factors absent an affirmative demonstration by a



1 The history of drug abuse point is not developed at all in Mr. Jackson’s brief and we did not see
much mention of drug abuse in the proceedings below other than that Mr. Jackson failed to
submit a required drug test. Without a better-developed argument, we see nothing on this point
to disturb the conclusions of the trial court.

                                                    4
                     OHIO FIRST DISTRICT COURT OF APPEALS



defendant to the contrary.”). This assumption is bolstered by the trial court’s explicit

statements that it “considered all relevant seriousness and recidivism factors.”

Moreover, the record supports these findings that Mr. Jackson is “no longer likely

amendable to an available Community Control sanction” in light of the complete

record before the trial court.

       {¶8}    Mr. Jackson has pointed us to nothing in the record that would cast

doubt upon the trial court’s conclusions or that showed a failure by the court to

consider all of the evidence before it. We accordingly overrule Mr. Jackson’s single

assignment of error and affirm the trial court’s judgment.
                                                                  Judgment affirmed.

MOCK, P.J., and ZAYAS, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                               5
