[Cite as State v. Dawson, 2016-Ohio-2800.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :         OPINION

                 Plaintiff-Appellee,             :
                                                           CASE NO. 2015-L-109
        - vs -                                   :

DAVID D. DAWSON,                                 :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 15 CR
000232.

Judgment: Affirmed.


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

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



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, David D. Dawson, appeals his sentence following his guilty plea

to trafficking in cocaine and related felonies. At issue is whether appellant’s sentence

was contrary to law. For the reasons that follow, we affirm.

        {¶2}     On July 2, 2015, appellant pled guilty to trafficking in cocaine, a felony of

the fifth degree; attempted tampering with evidence, a felony of the fourth degree;
possession of cocaine, a felony of the fifth degree; and attempted illegal assembly or

possession of chemicals for the manufacture of drugs, a felony of the fourth degree.

         {¶3}   The statement of facts that follows is derived from evidence presented at

appellant’s guilty-plea and sentencing hearings. On March 16, 2015, a special agent

with the Lake County Narcotics Agency received information from a confidential

informant that appellant was selling crack cocaine from a crack house in Painesville,

Ohio.     The confidential informant made arrangements to buy crack cocaine from

appellant and was wired by agents from the Narcotics Agency.            The confidential

informant went to the crack house and purchased crack from appellant using recorded

funds.

         {¶4}   Two days later, on March 18, 2015, Narcotics Agency agents executed a

search warrant at the crack house.        They knocked loudly on the front door.       An

occupant pulled the window shade on the inside of the front door to the side. The

agents yelled, “police, open the door right now!” However, the occupant did not comply.

After the agents pounded on the front door several times, the occupant finally unlocked

and opened the door. Upon entering the residence, the officers announced they had a

search warrant and walked through the house. While in a bedroom, they heard a toilet

flushing in the adjoining bathroom.      The agents entered the bathroom and found

appellant attempting to flush crack cocaine down the toilet. After he was handcuffed,

one of the agents noticed a clear plastic bag containing crack cocaine floating in the

running toilet bowl. The agent recovered the bag and preserved it as evidence.

         {¶5}   During a search of the crack house, the agents also recovered a second

plastic bag containing crack cocaine on the bathroom sink countertop and $194 in cash

in appellant’s pants pocket.      Appellant was also in possession of a scale and a


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measuring cup that contained crack cocaine residue, indicating the manufacture of

crack.

         {¶6}   In a colloquy between the trial court and appellant during the guilty-plea

hearing, in response to the court’s questions, appellant admitted that he knowingly sold

or offered to sell cocaine on March 16, 2015; that on March 18, 2015, he attempted to

get rid of the cocaine in his possession because he knew the police were in the house

and he did not want them to find the drugs; that on March 18, 2015, he knowingly

possessed cocaine; and that between March 1, 2015 and March 18, 2015, he attempted

to illegally assemble or possess chemicals for the manufacture of crack cocaine.

         {¶7}   The court found appellant’s guilty plea to be voluntary; accepted the plea;

found appellant guilty of the foregoing offenses; and referred the matter to the probation

department for a pre-sentence report.

         {¶8}   At the sentencing, pursuant to the agreement of the parties, the court

merged attempted tampering with evidence, possession of cocaine, and attempted

illegal manufacture of drugs. Among these offenses, the state elected to proceed to

sentencing on attempted tampering with evidence, a felony-four, in addition to trafficking

in cocaine.

         {¶9}   The court noted that appellant, who is 33 years old, has a significant

criminal history. He was sentenced to prison twice, once in 2002 and again in 2006.

         {¶10} At sentencing, appellant’s counsel recommended that appellant be

sentenced to seven months in prison on each of the two offenses that did not merge

and that these terms be served consecutively, for a total of 14 months. On the other

hand, the prosecutor recommended a consecutive sentence of 30 months, which was

the maximum potential sentence for these two offenses. The court sentenced appellant


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to 11 months for trafficking in cocaine and 17 months for attempting tampering with

evidence, for a total of 28 months in prison.

       {¶11} Appellant appeals his sentence, asserting the following for his sole

assignment of error:

       {¶12} “The trial court erred by sentencing the defendant-appellant to a

consecutive, twenty-eight month prison term.”

       {¶13} Appellant argues the trial court erred in sentencing him to 28 months

because, in his view, the court did not consider: (1) the less seriousness factor that he

did not cause physical harm to anyone (R.C. 2929.12(C)(3)), or (2) the inapplicability of

the recidivism factor that he refuses to acknowledge a pattern of drug abuse that was

related to the instant offenses (R.C. 2929.12(D)(4)).

       {¶14} The Supreme Court of Ohio, in State v. Marcum, ___ Ohio St.3d ___,

2016-Ohio-1002, held that appellate courts must apply the standard of review set forth

in R.C. 2953.08(G)(2) when reviewing felony sentences. Id. at ¶1. Thus, applying the

plain language of that statute, the Supreme Court held that “an appellate 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.” Id. The Court

further held that “appellate courts may not apply the abuse-of-discretion standard in

sentencing-term challenges.” Id. at ¶10.

       {¶15} Absent evidence to the contrary, a reviewing court will presume the trial

court considered all appropriate sentencing factors, even if the record is silent. State v.

Kish, 11th Dist. Lake No. 2010-L-138, 2011-Ohio-4172, ¶8.            Further, there is no

requirement that the court state on the record that it considered the statutory sentencing


                                                4
criteria. Id. However, the trial court satisfies its obligation to consider the statutory

principles and factors by stating that it considered them. State v. Brown, 11th Dist. Lake

No. 2014-L-075, 2015-Ohio-2897, ¶34. Moreover, this court has stated, “[a] trial court is

not required to give any particular weight or emphasis to a given set of circumstances; it

is merely required to consider the statutory factors in exercising its discretion.” State v.

Delmanzo, 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, ¶23. In this case, the trial

court met its obligations under the law.

       {¶16} The trial court stated on the record during the sentencing hearing and in

its sentencing entry that it considered the purposes and principles of felony sentencing

in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12.

       {¶17} Further, during the sentencing hearing, the court said it considered the

complete record in this case, including the presentence report, the recommendation of

the probation department, the sentencing memorandum presented on behalf of

appellant, and the statements made by appellant.

       {¶18} With respect to the less seriousness factors, the court considered the fact

that none of the current offenses involved violence. With respect to the factors making

recidivism less likely, the court noted that appellant pled guilty to his crimes, accepted

responsibility for his involvement, and has shown genuine remorse.

       {¶19} However, the court placed greater emphasis on factors in appellant’s case

that made recidivism more likely.      These included appellant’s history of a juvenile

delinquency adjudication and his long history of criminal convictions as an adult. The

court noted that appellant has 21 prior convictions between 2001 and prior to the instant

conviction (not counting his probation violations), seven of which were for felonies,

including felonies involving violence. The court noted that appellant had not responded


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favorably when sanctions were previously imposed in that he had probation violations in

2002 and 2004. The court also noted that appellant served two prison terms that were

imposed concurrently in two separate cases in 2002. He served another prison term

between 2006 and 2011. And, appellant served two prison sentences consecutively

between 2013 and 2015. The court noted that appellant had only been out of prison for

some 10 days between March 6, 2015 and March 18, 2015, and was on post-release

control when he committed the instant crimes.

       {¶20} While appellant may not agree with the emphasis placed by the trial court

on his criminal record and the fact that he was only out of prison for ten days and on

post-release control when he committed these crimes, he cannot reasonably dispute

that the court considered the sentencing criteria in R.C. 2929.11 and R.C. 2929.12.

       {¶21} In view of the foregoing, we do not clearly and convincingly find that the

trial court’s sentence was contrary to law.

       {¶22} For the reasons stated in this opinion, the assignment of error lacks merit

and is overruled. It is the order and judgment of this court that the judgment of the Lake

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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