[Cite as State v. Harris, 2019-Ohio-4711.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-18-077

        Appellee                                 Trial Court No. 2015CR0174

v.

Micah Harris                                     DECISION AND JUDGMENT

        Appellant                                Decided: November 15, 2019

                                             *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                             *****

        MAYLE, P.J.

        {¶ 1} Appellant, Micah Harris, appeals the September 11, 2018 judgment of the

Wood County Court of Common Pleas sentencing him to 12 months in prison following

his violation of previously imposed community control conditions. For the reasons that

follow, we affirm the trial court’s judgment.
                                      I. Background

       {¶ 2} On May 7, 2015, appellant Micah Harris was indicted on one count of

trafficking in marijuana in violation of R.C. 2925.03(A)(2)(C)(3)(a), a fifth-degree

felony, with a forfeiture specification pursuant to R.C. 2941.1417(A). Harris was

arraigned on May 12, 2015. He subsequently entered a guilty plea on July 20, 2015. At

that time, and pursuant to R.C. 2951.041, the trial court agreed to Harris’s request for

intervention in lieu of conviction. The trial court ordered appellant to refrain from

alcohol consumption and attend an alcohol treatment program for one year as the terms of

his intervention. Harris did not object to the terms and the trial court stayed all

proceedings pending appellant’s completion of the intervention program.

       {¶ 3} On December 11, 2015, Harris appeared before the trial court for a hearing

on an alleged violation of the conditions of his intervention in lieu of conviction—the

consumption of alcohol. While Harris stipulated to the violation, the trial court agreed to

continue appellant’s intervention under the same conditions. Harris again appeared

before the trial court on July 1, 2016, following the state’s allegation that appellant again

consumed alcohol in violation of the terms of his intervention program. The trial court

determined Harris had consumed alcohol and terminated appellant’s intervention. With

intervention terminated, the trial court found Harris guilty of trafficking in marijuana, the

sole count in the original indictment, based on his previous guilty plea. On August 12,

2016, the trial court sentenced appellant to community control for a period of 2 years and

notified him that violation of community control terms could lead to a prison term of 12




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months. While on community control, appellant was ordered to complete an alcohol

treatment program and not to consume alcohol. The trial court also suspended

appellant’s driver’s license for six months with driving privileges granted for

employment, treatment, and probation.

       {¶ 4} On November 4, 2016, Harris appeared before the trial court for a hearing on

a community control violation following a conviction for underage consumption. The

trial court did not revoke Harris’s community control but did order two months of

electronic alcohol monitoring to ensure Harris’s compliance with the no alcohol

consumption term of his community control.

       {¶ 5} Harris again appeared before the trial court on September 5, 2017, for a

hearing on a community control violation based on his consumption of alcohol. Harris

stipulated to the violation and requested the trial court proceed to disposition. The trial

court again continued Harris’s community control but imposed additional conditions

including the completion of an alcohol abuse treatment program, drug and mental health

screenings, and the completion of any recommended treatment arising from those

screenings.

       {¶ 6} Finally, on September 11, 2018, Harris appeared before the trial court on

another violation of the community control provisions. Harris stipulated to the violation

in that he had moved to Southern Ohio and absconded from the probation department’s

supervision of his community control conditions. The trial court accepted the stipulated




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violation, revoked Harris’s community control, and imposed the 12-month prison

sentence. Harris appealed and asserts a single assignment of error:

              The trial court did not comply with R.C. 2929.11 and 2929.12 in

       sentencing Appellant to twelve months in the Ohio Department of

       Rehabilitation & Corrections instead of ordering community control

       sanctions.

                                  II. Law and Analysis

       {¶ 7} Harris argues his sentence was contrary to law because the trial court failed

to “follow the directives of either R.C. 2929.11, The Purposes and Principles of

Sentencing or R.C. 2929.12, Seriousness and Recidivism Factors” when determining the

appropriate sentence. We review felony sentences under R.C. 2953.08(G)(2). State v.

Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase,

modify, or vacate and remand a judgment only if we clearly and convincingly find either

of the following: “(a) 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” or

“(b) the sentence is otherwise contrary to law.” State v. Yeager, 6th Dist. Sandusky No.

S-15-025, 2016-Ohio-4759, ¶ 7, citing R.C. 2953.08(G)(2).

       {¶ 8} Appellant bears the burden of identifying clear and convincing evidence the

sentence imposed was contrary to law. State v. Williams, 6th Dist. Lucas No. L-13-1083,

2014-Ohio-3624, at ¶ 7-11, 16, R.C. 2953.08(G)(2). A felony sentence is contrary to law




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if the trial court, as appellant argues here, failed to consider the purposes of felony

sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth

in R.C. 2929.12 when determining the appropriate sentence. Id. at ¶ 8. A trial court’s

statement that it has considered R.C. 2929.11 and 2929.12 in determining a sentence is

sufficient to show the trial court’s compliance with these requirements. State v.

Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11 (6th Dist.).

If the trial court fails to specifically state that it followed these statutes, it is still

presumed that the trial court gave proper consideration to R.C. 2929.11 and 2929.12.

Yeager at ¶ 13, citing State v. Sims, 6th Dist. Sandusky No. S-13-037, 2014-Ohio-3515,

¶ 10. Indeed, this presumption applies even if the trial court fails to reference R.C.

2929.11 and 2929.12 at both the sentencing hearing and in the subsequent sentencing

entry. State v. Perkins, 6th Dist. Sandusky No. S-18-010, 2019-Ohio-2049, ¶ 22, citing

State v. Seele, 6th Dist. Sandusky No. S-13-025, 2014-Ohio-1455, ¶ 19 (applying the

presumption where “the trial court did not specifically indicate either at sentencing or in

its judgment entry that it considered these statutes.”) The burden is on the appellant to

rebut this presumption. Yeager at ¶ 13, citing State v. Smith, 6th Dist. Sandusky No.

S-14-037, 2015-Ohio-1867, ¶ 11. Appellant’s rebuttal must be supported with clear and

convincing evidence. See Williams at ¶ 7-11; 16, R.C. 2953.08(G)(2).

       {¶ 9} Here, Harris argues that “[a]lthough the judgment entry in this case

references R.C. 2929.11 and 2929.12, the court made no mention of it’s [sic]

consideration of the statutes at appellant’s sentencing hearing[.]” Harris, however, fails




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to identify any evidence—let alone clear and convincing evidence—to rebut the

presumption that the trial court nonetheless considered the necessary sentencing factors

under R.C. 2929.11 and 2929.12 at the sentencing hearing.

       {¶ 10} Moreover, the sentencing entry clearly states that the trial court considered

R.C. 2929.11 and 2929.12 when it determined Harris’s sentence. It stated:

              after consideration of any additional relevant factors and the

       recidivism and seriousness factors under R.C. 2929.12, the Court finds that

       a prison term is consistent, based upon the overriding purposes and

       principles of sentencing set forth in R.C. 2929.11. Further, the Court finds

       the Defendant is no longer amenable to any available community control

       sanction and is unsuccessfully terminated from community control.

The trial court is “not obligated to give a detailed explanation of how it algebraically

applied each seriousness and recidivism factor to the offender. Indeed, no specific

recitation is required.” Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960

N.E.2d 1042, at ¶ 11, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793

(2000). The trial court’s statement that it considered R.C. 2929.11 and 2929.12 in

determining the sentence is sufficient to show its compliance with these requirements.

Id.

       {¶ 11} Despite this, Harris claims that “the trial court did not consider mitigating

factors or Appellant’s need for mental health counseling and treatment[.]” That is, Harris

claims that he acknowledged his crime was compelled by drug addiction, that he




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expressed genuine remorse, that he wished to continue mental health treatment, and that

he has “minimal” criminal history. He argues these factors weigh in his favor under R.C.

2929.12(D)(4), 2929.12(D)(5), and 2929.12(E). Harris also argues that none of the R.C.

2929.12(B) seriousness factors are applicable to his case. Essentially, Harris argues that

because the factors he believes weighed in his favor did not result in his desired lesser

sentence—the continuation of community control—the trial court must have given those

factors insufficient weight.

       {¶ 12} The trial court, however, has the sole discretion to determine the weight

afforded to any particular statutory factor when imposing a felony sentence. State v.

Stubbs, 10th Dist. Franklin No. 13AP-810, 2014-Ohio-3696, ¶ 16. Further, the trial court

was not required to provide any recitation as to how it weighed these factors. Id.

Harris’s failure to receive the desired result does not mean the factors were not

considered and weighed by the trial court.

       {¶ 13} The trial court’s statement that it considered R.C. 2929.11 and 2929.12 in

determining appellant’s sentence is sufficient to show its compliance with those

requirements. Brimacombe at ¶ 11. Appellant identifies no evidence to support his

contention the sentence imposed was contrary to law and fails to satisfy his burden as

established in R.C. 2953.08(G). The trial court did not err in imposing appellant’s

12-month prison sentence.




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                                     III. Conclusion

       {¶ 14} We find appellant’s assignment of error not well-taken. The trial court

properly considered the purposes and principals of sentencing under R.C. 2929.11 and

the seriousness and recidivism factors under R.C. 2929.12, and Harris presented no clear

and convincing evidence that the sentence was contrary to law. We affirm the

September 11, 2018 judgment of the Wood County Court of Common Pleas. Harris is

ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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