[Cite as State v. Watson, 2011-Ohio-1178.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 09 MA 62
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
LARRY B. WATSON                               )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 08 CR 1283

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Scott C. Essad
                                                   6 Federal Plaza Central, Suite 1300
                                                   Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                   Dated: March 9, 2011


WAITE, P.J.
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      {1}    Appellant Larry B. Watson is challenging the ten-year prison sentence

imposed by the Mahoning County Court of Common Pleas after he pleaded guilty to

one count of rape. Appellant contends that the sentencing hearing was so brief that

the trial court could not have had time to consider all the sentencing factors in R.C.

2929.12. Appellant also argues that the trial court’s judgment entry should have

included more than a rote recitation that it considered the felony sentencing statutes.

The record reveals that the court held a full and thorough sentencing hearing and

that the court reviewed R.C. 2929.11 and 2929.12 in rendering its sentence. The

court followed the requirements of the felony sentencing statutes and the conviction

and sentence are affirmed.

      {2}    Appellant was indicted on November 6, 2008, for two counts of rape,

R.C. 2907.02(A)(1), punishable by life in prison, and two counts of gross sexual

imposition, R.C. 2907.05(A)(4), third degree felonies.     Appellant was accused of

engaging in sexual conduct, including digital penetration of the vagina, in the summer

of 2004 of the minor child K.B., who was eleven years old at the time. The charges

also included the allegation that the crimes were committed by force or threat of

force. On February 11, 2009, Appellant entered into a Crim.R. 11 plea agreement.

He agreed to plead guilty to one count of rape without a force specification and with a

maximum possible penalty of ten years in prison. The state, in return, agreed to

dismiss the remaining charges and specifications.

      {3}    The court accepted the guilty plea and ordered a presentence

investigation report to be prepared. The sentencing hearing took place on April 2,
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2009. The court reviewed the rights Appellant waived in pleading guilty, and both the

prosecutor and Appellant’s attorney made statements to the court, including

notification of a minor correction to the presentence investigation report. Appellant

also made a statement at the hearing. The court noted that it had reviewed the

presentence investigation report and that the circumstances of the case were

“shameful.” (4/2/09 Tr., p. 13.) The court orally sentenced Appellant to the maximum

sentence of ten years in prison. The sentencing judgment entry, dated April 2, 2009,

states that the court “considered the record, pre-sentence investigation report, oral

statements, as well as the principles and purposes of sentencing under ORC §

2929.11 and balances the seriousness and recidivism factors under ORC § 2929.12.

The Court finds that Defendant is not amenable to a community control sanction.”

The court noted that Appellant had stipulated to being a Tier III Sex Offender

pursuant to R.C. Chapter 2950. The court also notified Appellant regarding post-

release control. The judgment entry imposed a ten-year prison term with 136 days of

jail time credit. This appeal followed.

                               ASSIGNMENT OF ERROR

       {4}      “The trial court’s sentencing of Appellant Larry Watson was clearly and

convincingly contrary to law as well as an abuse of discretion.”

       {5}      Appellant is challenging only his sentence in this appeal. Based on the

felony sentencing review statute, R.C. 2953.08(G)(2), the Ohio Supreme Court has

held that appellate courts must use a two-prong approach to felony sentencing

review:      “First, they must examine the sentencing court's compliance with all
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applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the

trial court's decision in imposing the term of imprisonment is reviewed under the

abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, ¶26 (O’Connor, J., plurality opinion); see also State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

       {6}    The analysis of whether a sentence is clearly and convincingly contrary

to law hinges on a trial court’s “compliance with all applicable rules and statutes” in

imposing the sentence. Kalish at ¶26. For example, a trial court’s sentence does not

demonstrate compliance if it falls outside of the permissible statutory range,

contravenes a statute, or is decided pursuant to an unconstitutional statute. See

State v. McGowan, 7th Dist. No. 09 JE 24, 2010-Ohio-1309, at ¶66. In examining “all

applicable rules and statutes,” the sentencing court must consider R.C. 2929.11 and

R.C. 2929.12. State v. Gray, 7th Dist. No. 07 MA 156, 2008-Ohio-6591, at ¶8, citing

Kalish ¶13-14 (O'Connor, J., plurality opinion). Typically, a trial court is expected to

at least make a “rote recitation” of its consideration of these two statutes, but even a

completely silent record raises a rebuttable presumption that the sentencing court

considered all the proper criteria. State v. Merriweather, 7th Dist. No. 09 MA 160,

2010-Ohio-2279, ¶8; State v. Ballard, 7th Dist. No. 08 CO 13, 2009-Ohio-5472, ¶71;

State v. James, 7th Dist. No. 07 CO 47, 2009-Ohio-4392, ¶50.

       {7}    If this inquiry is satisfied, an appellate court then reviews the trial court's

sentencing decision for abuse of discretion. Kalish at ¶17, 19-20. An abuse of
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discretion means more than an error of judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d

151, 157, 16 O.O.3d 169, 404 N.E.2d 144. Thus, in the felony sentencing context,

“[a]n abuse of discretion can be found if the sentencing court unreasonably or

arbitrarily weighs the factors in R.C. 2929.11 and R .C. 2929.12.” State v. Heverly,

7th Dist. No. 09 CO 4, 2010-Ohio-1005, ¶34. Although the trial courts were formerly

required to engage in detailed judicial factfinding in order to justify imposing

maximum or consecutive sentences, this is no longer the case. Foster, supra, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus.

Imposing maximum or consecutive sentences is simply part of the trial court's overall

discretion in issuing a felony sentence and is no longer tied to mandatory factfinding

provisions. Id. Foster also held that the section of the felony sentencing review

statute, R.C. 2953.08(G), requiring review of the trial court’s mandatory findings of

fact at sentencing was no longer applicable. Id. at ¶99.

      {8}    Moving on to the first of the two steps of felony sentencing review, we

find nothing that would indicate that the sentence is clearly and convincingly contrary

to law. The sentence is within the range for first degree felonies; the court did not

rely on any unconstitutional statutes; the court dealt with post release control

concerns; there were no issues involving penalty enhancements or merged counts;

there are no issues regarding the right of allocution; nor do any other potential

instances of unlawfulness reveal themselves.        The trial court’s judgment entry
                                                                                       -6-

mentions that the judge considered R.C. 2929.11 and 2929.12, and that is enough to

satisfy the legal standard.

       {9}     Since there is no error of law, Appellant must establish an abuse of

discretion in order to succeed on appeal. Appellant first objects to the length of the

sentencing hearing. Appellant cites no case or statute that requires any specific

amount of time for a sentencing hearing, and thus, has failed to provide any basis for

us to find an abuse of discretion. We are also mindful that the length of a sentencing

hearing is not completely in the hands of the trial court. A large part of the hearing is

taken up by the arguments each attorney presents to the court, which varies from

case to case. Both attorneys made statements in this case, and defense counsel’s

statement was actually quite lengthy. (4/2/09 Tr., pp. 8-13.) There is no indication

that the court failed to listen to this statement, left the courtroom, or otherwise failed

to consider it as he deliberated.

       {10}    The defendant also has a right to make a final statement at sentencing,

the length of which is completely determined by the defendant. The defendant made

a brief statement in this case, and again, there is no indication that the court failed to

listen to the statement or failed to consider it as part of sentencing.

       {11}    The court does not have complete control over how much time is

allotted to the aforementioned aspects of sentencing. On the other hand, the trial

court does have control over its own pronouncements and rhetoric at the sentencing

hearing.      In this case, the court stated that it considered the presentence

investigation and, “taking everything into consideration,” including the prosecutor’s
                                                                                     -7-

recommendation of a 10-year prison term, it proceeded to impose the maximum

prison term. (4/2/09 Tr., pp. 13-14.) There is no indication that the court tried to

artificially curtail any aspect of the hearing, and each part of the hearing took its

natural course in the time necessary for its completion. While it is preferable for the

trial court to discuss the sentencing factors and considerations in more detail, brevity

does not equate with error. The burden is on the defendant to show that a reversible

and prejudicial error occurred. Since all necessary aspects of sentencing did take

place here, there is no error evident in the record in the length of the sentencing

hearing.

      {12}   Appellant acknowledges that the rote recitation spoken by the trial court

judge satisfies the requirement that the court consider R.C. 2929.11-12 in rendering

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

fact, a rote recitation is not absolutely required, because “a silent record raises the

rebuttable presumption that the sentencing court considered the statutory sentencing

criteria.” State v. Ballard, 7th Dist. No. 08 CO 13, 2009-Ohio-5472, ¶71, citing State

v. James, 7th Dist. No. 07 CO 47, 2009-Ohio-4392, ¶50. Because the trial court in

this case specifically stated that it considered R.C. 2929.11 and 2929.12, it is up to

Appellant to rebut the presumption that the court did indeed follow the statutes.

      {13}   The only factor that the court failed to apply, according to Appellant, is

the mitigating factor in R.C. 2929.12(C)(3): “In committing the offense, the offender

did not cause or expect to cause physical harm to any person or property.” Appellant

contends that his attorney addressed this factor on page 12 of the sentencing
                                                                                       -8-

transcript, but there is nothing in the transcript on page 12 regarding whether or not

Appellant caused physical harm to the victim. At that page in the transcript there

appears a conclusory statement by defense counsel that this particular rape “isn’t the

most serious form of the offense.” (4/2/09 Tr., p. 12.) Since there is no context to

support the attorney’s conclusion, it cannot be treated as mitigating evidence.

       {14}   Appellant contends that the dismissal of the force specification as part

of the plea bargain should be considered as mitigating evidence. It is true that the

original charges against Appellant included the “force or threat of force” language

that could have invoked a life sentence, and that the state agreed to amend the

charge to remove that language. Nevertheless, the trial court could still consider that

Appellant had been charged with forcible rape when formulating its sentence: “a

sentencing court may consider a criminal charge and supporting facts that are

dismissed under a plea agreement.” State v. Bowser, 186 Ohio App.3d 162, 2010-

Ohio-951, 926 N.E.2d 714, ¶16.           “[T]he sentencing court can consider the

circumstances of the offense for which the defendant was indicted, even if he

negotiated a plea at odds with the indicted elements.” State v. Mayor, 7th Dist. No.

07 MA 177, 2008-Ohio-7011, ¶17. Based on the record, it is not at all clear that there

was any mitigating evidence regarding whether the crime was committed with force,

and thus, there is no error in the fact that the trial court did not mention lack of force

as a mitigating factor.

       {15}   Other aspects of the record also support the trial court’s sentence. The

trial court expressly considered the prosecutor’s recommendation of a ten-year prison
                                                                                    -9-

term.   The trial court was also able to consider that the defendant obtained a

substantial benefit by entering into a plea bargain.     In this case, a possible life

sentence was reduced to a maximum possible sentence of ten years in prison, and

three other charges were dismissed. “[N]o caselaw * * * would prohibit a trial judge

from taking into account charges that are reduced or dismissed as a result of a plea

bargain, [and] in fact, the history of Ohio law indicates that the sentencing judge may

consider such factors.” State v. Starkey, 7th Dist. No. 06 MA 110, 2007-Ohio-6702,

¶19.

        {16}   We find no error of law or abuse of discretion in the sentence and

Appellant’s sole assignment of error is overruled.      The trial court’s judgment is

affirmed.


Donofrio, J., concurs.

Vukovich, J., concurs.
