[Cite as State v. Rutherford, 2020-Ohio-3934.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2020-L-033
        - vs -                                    :

ANDREW R. RUTHERFORD,                             :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2019 CR 001135.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Andrew R. Rutherford (“Rutherford”), appeals the judgment of

the Lake County Court of Common Pleas, sentencing him to a term of eighteen months

imprisonment. We affirm the trial court’s judgment.

        {¶2}     Rutherford entered a written and oral plea of guilty in Case No.

19CR001135 on one count of unlawful sexual conduct with a minor, a felony of the
fourth degree, in violation of R.C. 2907.04(A). A sentencing hearing was conducted on

February 13, 2020. At the hearing, the court stated on the record as follows:

               I have considered the record, the oral statements made, many
               victim impact statements, the presentence report, the sex offender
               evaluation of Dr. Rindsberg, my conference in chambers with
               counsel and the statements of the defendant, the defendant’s
               counsel and the prosecutor. I’ve also considered the overall
               purposes of felony sentencing pursuant to Revised Code Section
               2929.11, which are to protect the public from future crimes by this
               offender and others, to publish [sic] this offender and to promote
               the effective rehabilitation of the offender using the minimum
               sanctions that the court determines accomplish those purposes
               without imposing an unnecessary burden on state or local
               governmental resources.

               I’ve considered the need for incapacitation, deterrence,
               rehabilitation, and restitution along with the public burden on
               governmental resources. I have considered the recommendations
               of the parties. I’ve reasonably calculated this sentence to achieve
               the overriding purposes of felony sentencing and to be
               commensurate with and not demeaning to the seriousness of this
               offender’s conduct and its impact on the victim and to be consistent
               with sentences imposed for similar crimes committed by similar
               offenders.

               In using my discretion to determine the most effective way to
               comply with the purposes and principles of felony sentencing, I
               have considered all relevant factors, including the seriousness
               factors set forth in Divisions B and C of Revised Code Section
               2929.12 and the recidivism factors set forth in Divisions D and E of
               Revised Code Section 2929.12.

      {¶3}     The trial court then discussed particular factors it considered. The serious

psychological harm caused to the victim and the large age gap between Rutherford and

the victim, which was twice what the statute requires for a conviction under R.C.

2907.04(A), were considered to be aggravating factors.         The trial court also found

Rutherford’s    extensive   criminal   history—especially   with   a   history   of   sexual

misconduct—as well as the presentence and sex offender evaluations, his failure to




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respond to previous treatment, and the fact that Rutherford committed the acts while on

probation, to be indicative of Rutherford’s likelihood to reoffend. Thereafter, Rutherford

was sentenced to eighteen months imprisonment by the trial court. Rutherford was also

classified a Tier II sex offender and ordered to pay all costs and fees associated with

the prosecution.

       {¶4}   From that sentencing entry, Rutherford filed a timely notice of appeal

raising one assignment of error:

              THE TRIAL COURT ERRED BY SENTENCING THE
              DEFENDANT-APPELLANT TO THE MAXIMUM PRISON TERM
              OF 18 MONTHS, AS THE TRIAL COURT’S FINDINGS WITH
              RESPECT   TO   R.C. 2929.11 AND    2929.12 WERE
              UNSUPPORTED BY THE RECORD AND THUS, CONTRARY TO
              LAW.

       {¶5}   Under his sole assignment of error, Rutherford argues that a sentence of

eighteen months is contrary to law and not supported by the record. Our standard of

review is set forth in R.C. 2953.08(G)(2):

              The court hearing an appeal under division (A), (B), or (C) of this
              section shall review the record, including the findings underlying the
              sentence or modification given by the sentencing court.

              The appellate court may increase, reduce, or otherwise modify a
              sentence that is appealed under this section or may vacate the
              sentence and remand the matter to the sentencing court for
              resentencing. The appellate court’s standard of review is not
              whether the sentencing court abused its discretion. The appellate
              court may take any action authorized by this division if it clearly and
              convincingly finds either of the following:

                   (a) 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, whichever, if any, is relevant;

                   (b) That the sentence is otherwise contrary to law.




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“A sentence is contrary to law if (1) the sentence falls outside the statutory range for the

particular degree of offense, or (2) the trial court failed to consider the purposes and

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

R.C. 2929.12.” State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, ¶18,

quoting State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶14 (internal

citations omitted). “‘When a sentence is imposed solely after the consideration of the

factors in R.C. 2929.11 and 2929.12, appellate courts “may vacate or modify any

sentence that is not clearly and convincingly contrary to law”’” only if the appellate court

clearly and convincingly finds that the record does not support the sentence.”          Id.,

quoting Price, supra, at ¶14, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, ¶23.

       {¶6}   Rutherford does not argue that the court failed to sentence him to a term

within the permissible range, which is a range of six to eighteen months.              R.C.

2929.14(A)(4). Because Rutherford’s prison term is within the permissible range, we

must consider whether the sentence is clearly and convincingly not supported by the

record. See Wilson, supra, at ¶20; Marcum, supra, at ¶23. In doing so, we keep in

mind that the “trial court is not required to give any particular weight or emphasis to a

given set of circumstances” when considering the statutory factors. State v. DelManzo,

11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, ¶23.

       {¶7}   Rutherford’s argument is that the trial court improperly weighed the

sentencing factors; namely, Rutherford’s potential for rehabilitation and his genuine

remorse at trial. However, the trial court’s obligation to consider the purposes and

principles of felony sentencing is satisfied merely by stating that it did so. State v.




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Banas, 11th Dist. Lake No. 2019-L-049, 2019-Ohio-5053, ¶14, citing State v. Brown,

11th Dist. Lake No. 2014-L-075, 2015-Ohio-2897, ¶34 (citations omitted); see also State

v. Foster, 11th Dist. Portage No. 2011-P-0087, 2012-Ohio-3744, ¶9 (even a silent

record raises a presumption that the trial court considered the felony sentencing

criteria). Further, “courts are not required to believe that a defendant is remorseful

simply because he apologizes. The trial court, as trier of fact, is in the best position to

determine the credibility and genuineness of a defendant’s stated remorse.” State v.

McBee, 11th Dist. Geauga No. 2017-G-0149, 2019-Ohio-2967, ¶56, citing State v.

Benore, 6th Dist. Ottawa No. OT-04-021, 2005-Ohio-2944, ¶35 and State v. Davis, 11th

Dist. Lake Nos. 2003-L-027 et seq., 2004-Ohio-2076, ¶29.

      {¶8}   Rutherford received the maximum prison term allowed by law, with the

court balancing, inter alia, his extensive criminal history dating back to juvenile status,

the recommendation of the prosecutor, his previous failed attempts at treatment, the

serious psychological harm caused to the victim, medical history and reports, and the

two years Rutherford spent cultivating a relationship with the victim before engaging in

illegal sexual conduct. Further, the trial court expressly stated that it considered the

purposes and principles of felony sentencing, including rehabilitation, and the

seriousness and recidivism factors, including stating specific factors on the record.

Because the trial court directly addressed rehabilitation and was in the best position to

assess remorse, we cannot conclude that the sentence is clearly and convincingly

unsupported by the record.

      {¶9}   Further, Rutherford argues that pointing out the age gap between himself

and the victim was error because a gap of between four and ten years is an element of




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the crime. R.C. 2907.04(B)(2)-(3). He cites State v. Polizzi, 11th Dist. Lake Nos. 2018-

L-063, 2019-Ohio-2505, in which this court noted “there is case law that indicates ‘[a]

trial court may not elevate the seriousness of an offense by pointing to a fact that is also

an element of the offense itself.’” Id. at ¶28, quoting State v. Sims, 4th Dist. Gallia No.

10CA17, 2012-Ohio-238, ¶16 (parallel citations omitted).         However, this court has

clarified that “the holding in Polizzi was that the trial court’s consecutive sentence

findings under R.C. 2929.14(C)(4) were clearly and convincingly not supported by the

record. We decline to apply that holding to appellant’s argument here that the trial

court’s seriousness findings under R.C. 2929.12 are not supported by the record.”

Banas, supra, at ¶25. Further, the trial court did not solely rely on the age gap in its

factoring. The trial court specifically cited that the age gap was twice the minimum that

the statute required, and it considered this larger age gap in conjunction with various

other factors as discussed above. Rutherford’s sentence is not contrary to law.

       {¶10} Therefore, Rutherford’s sole assignment of error is without merit.

       {¶11} The judgment of the Lake County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




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