[Cite as State v. Floyd, 2017-Ohio-4278.]
                             STATE OF OHIO, BELMONT COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 15 BE 0061
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
JOSHUA LEVI FLOYD                             )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Belmont County, Ohio
                                                   Case No. 15 CR 120

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Daniel P. Fry
                                                   Belmont County Prosecutor
                                                   Atty. J. Kevin Flanagan
                                                   Assistant Prosecuting Attorney
                                                   147-A West Main Street
                                                   St. Clairsville, Ohio 43950
                                                   No Brief Filed

For Defendant-Appellant:                           Atty. Zachary T. Zilai
                                                   P.O. Box 247
                                                   St. Clairsville, Ohio 43950


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: June 12, 2017
[Cite as State v. Floyd, 2017-Ohio-4278.]
WAITE, J.


        {¶1}     Appellant Joshua Levi Floyd appeals his September 22, 2015 Belmont

County Common Pleas Court sentencing entry. Appellant argues that the trial court

failed to consider the requisite R.C. 2929.13(B)(1)(b) factors when determining his

sentence. For the reasons that follow, Appellant’s argument is without merit and the

judgment of the trial court is affirmed.

                                  Factual and Procedural History

        {¶2}     Appellant was arrested after he led police on a multi-county, multi-state

high-speed chase. On May 7, 2015, a Belmont County Grand Jury indicted Appellant

on the following charges: one count of failure to comply with order or signal of a

police officer, a felony of the third degree in violation of R.C. 2921.331(B), (C)(5); one

count of receiving stolen property, a misdemeanor of the first degree in violation of

R.C. 2913.51(A); and one count of driving while under the influence of alcohol or

drugs, a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(a). He

was arraigned on May 14, 2015.

        {¶3}     On August 26, 2015, Appellant pleaded guilty to an amended

complaint. The state dismissed the receiving stolen property and OVI charges and

added one count of theft of a credit card, a felony of the fifth degree. Appellant

waived Grand Jury proceedings on the additional charge. The state also reduced the

failure to comply charge to a felony of the fourth degree. On September 14, 2015,

the trial court sentenced Appellant to eighteen months of incarceration for failure to

comply and twelve months for theft of a credit card. The trial court ordered the

sentences to run consecutively, for an aggregate total of thirty months, and gave
                                                                                      -2-

Appellant credit for 178 days served. Appellant does not contest his conviction but

timely appeals his sentence.

                               ASSIGNMENT OF ERROR

      THE TRIAL COURT ERRED IN SENTENCING DEFENDANT-

      APPELLANT TO A PRISON TERM WITHOUT MAKING ANY OF THE

      NECESSARY FINDINGS CONTAINED IN R.C. §2929.13(B)(1)(b).

      {¶4}   Appellant argues that a trial court must consider the factors found in

R.C. 2929.13(B)(1)(b) when sentencing a defendant who has been convicted of

felonies of the fourth and fifth degree. Appellant claims that the trial court failed to

make any findings, instead stating that “none of the nine factors of law may be

present.” (Appellant’s Brf., p. 8.) Appellant asserts that there are two remedies for

this alleged error available pursuant to R.C. 2953.08: this Court may remand the

matter to allow the trial court to make the requisite findings or may simply modify his

sentence.

      {¶5}   R.C. 2929.13(B)(1)(b) states:

      The court has discretion to impose a prison term upon an offender who

      is convicted of or pleads guilty to a felony of the fourth or fifth degree

      that is not an offense of violence or that is a qualifying assault offense if

      any of the following apply:


      (i) The offender committed the offense while having a firearm on or

      about the offender's person or under the offender's control.
                                                                               -3-

(ii) If the offense is a qualifying assault offense, the offender caused

serious physical harm to another person while committing the offense,

and, if the offense is not a qualifying assault offense, the offender

caused physical harm to another person while committing the offense.


(iii) The offender violated a term of the conditions of bond as set by the

court.


(iv) The court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, and the

department, within the forty-five-day period specified in that division, did

not provide the court with the name of, contact information for, and

program details of any community control sanction of at least one year's

duration that is available for persons sentenced by the court.


(v) The offense is a sex offense that is a fourth or fifth degree felony

violation of any provision of Chapter 2907. of the Revised Code.


(vi) In committing the offense, the offender attempted to cause or made

an actual threat of physical harm to a person with a deadly weapon.


(vii)    In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person, and the offender

previously was convicted of an offense that caused physical harm to a

person.
                                                                                     -4-

       (viii)   The offender held a public office or position of trust, and the

       offense related to that office or position; the offender's position obliged

       the offender to prevent the offense or to bring those committing it to

       justice; or the offender's professional reputation or position facilitated

       the offense or was likely to influence the future conduct of others.


       (ix)     The offender committed the offense for hire or as part of an

       organized criminal activity.


       (x) The offender at the time of the offense was serving, or the offender

       previously had served, a prison term.


       (xi)     The offender committed the offense while under a community

       control sanction, while on probation, or while released from custody on

       a bond or personal recognizance. (Emphasis added.)

       {¶6}      It is apparent from the record that the trial court considered the R.C.

2929.13(B)(1)(b) factors, specifically R.C. 2929.13(B)(1)(b), (xi) which pertains to a

defendant’s status as a probationer at the time of the offense. At the sentencing

hearing, the trial court stated:

       I recognize that these are Felony 4 and 5. It is this Court’s specific

       finding that though none of the nine factors of law may be present,

       mere community control sanctions are not consistent with the principles

       and purposes of the sentencing statutes, as I’ve outlined regarding his

       prior record, regarding the facts of this case, regarding the remarkable
                                                                                       -5-

       situation of -- and you know, the only reason we don’t have dead

       people is the time.

(9/14/15 Sentencing Hrg. Tr., p. 7.)

       {¶7}    The trial court’s statement reflects Appellant’s prior criminal record and

is based on the facts of this case. The record reveals that Appellant was driving at

speeds up to 150 miles per hour through small towns and caused a collision.

Appellant also has a lengthy criminal record, and was on probation at the time of the

incident.     Pursuant to R.C. 2929.13(B)(1)(b), (xi), a defendant’s status as a

probationer provides the trial court with the discretion to sentence a defendant who is

convicted of fourth and fifth degree felonies to incarceration.           As the record

demonstrates that at least one of the R.C. 2929.13(B)(1)(b) factors was met, this trial

court had discretion to sentence Appellant to a prison term. There is nothing in the

record suggesting that the court abused its discretion. As such, Appellant’s argument

is without merit and the judgment of the trial court is affirmed.

                                       Conclusion

       {¶8}    Appellant argues that the trial court failed to consider the requisite R.C.

2929.13(B)(1)(b) factors when determining his sentence.             However, the record

demonstrates that the trial court did consider the appropriate factors. Accordingly,

Appellant’s argument is without merit and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

DeGenaro, J., concurs.
