[Cite as State v. Rogers, 2014-Ohio-4573.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100903




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    BRIANNA ROGERS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-576556-A

        BEFORE: Keough, P.J., McCormack, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: October 16, 2014
ATTORNEY FOR APPELLANT

Richard Agopian
1415 West Ninth Street, Second Floor
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Steven McIntosh
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} In 2013, defendant-appellant, Brianna Rogers, was charged with two counts

each of attempted murder, felonious assault, aggravated menacing, and improperly

handling of firearms in a motor vehicle, and one count of discharge of a firearm on or

near prohibited premises.     The attempted murder and felonious assault charges also

contained one-, three-, and five-year firearm specifications. Following discovery, Rogers

agreed to plead guilty to two amended counts of felonious assault, two counts of

aggravated menacing, one count of improperly handling of firearms in a motor vehicle,

and the charge of discharge of a firearm on or near prohibited premises. All other counts

were nolled. The court sentenced Rogers to five years in prison.

       {¶2} Rogers appeals her sentence, raising as her sole assignment of error that the

trial court erred by failing to consider the sentencing factors set forth in R.C. 2929.11 and

2929.12 prior to imposing sentence. We find no merit to the appeal and affirm the

sentence.

       {¶3} R.C. 2929.11 provides that a sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing: (1) “to

protect the public from future crime by the offender and others,” and (2) “to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes.” The sentence imposed shall also be “commensurate with and not demeaning

to the seriousness of the offender’s conduct and its impact on the victim, and consistent
with sentences imposed for similar crimes committed by similar offenders.”                      R.C.

2929.11(B).

       {¶4} In determining the most effective way to comply with the purposes and

principles of sentencing set forth in R.C. 2929.11, the sentencing court must consider the

seriousness and recidivism factors contained in R.C. 2929.12, and additionally may

consider any other factors relevant to achieving those purposes and principles of

sentencing. R.C. 2929.12(A). “Although the trial court’s consideration of these factors

is mandatory, proof of that consideration is not — ‘where the trial court does not put on

the record its consideration of R.C. 2929.11 and 2929.12, it is presumed that the trial

court gave proper consideration of those statutes.’” State v. Esner, 8th Dist. Cuyahoga

No. 90740, 2008-Ohio-6654, ¶ 10, quoting State v. Kalish 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶ 18, fn. 4, citing State v. Adams, 37 Ohio St.3d 295,

525 N.E.2d 1361 (1988), paragraph three of the syllabus.1 See also State v. Sims, 6th


        In Esner, this court noted the opinion concurring in judgment only in Kalish that suggested
       1


Adams was “implicitly” overruled in State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302, 724
N.E.2d 793. Id. at fn. 1.

       [In Arnett] the court wrote, “the sentencing judge could have satisfied her duty under
       R.C. 2929.12 with nothing more than a rote recitation that she had considered the
       applicable [factors].” This [judge] apparently believed that a reference to a “rote
       recitation” to the applicable factors somehow trumped the syllabus law in Adams.
       Given that the three members of the Kalish majority approved Adams and the three
       dissenting justices did not cite to Adams, we find no basis for concluding that Adams
       had been implicitly overruled in Arnett.

Id.
Dist. Sandusky No. S-13-037, 2014-Ohio-3515; State v. Bohannon, 1st Dist. Hamilton

No. C-130014, 2013-Ohio-5101. This presumption can be rebutted by an affirmative

showing by the defendant. State v. Cyrus, 63 Ohio St.3d 164, 586 N.E.2d 94 (1992).

       {¶5}   Rogers contends that the trial court did not consider R.C. 2929.11 or

2929.12 because the court (1) did not expressly state on the record that it considered these

statutes and (2) imposed the five-year sentence “based on the way [she] looked at the

judge.” Rogers directs this court to a passage in the sentencing transcript where the trial

court stated that part of the reasoning for the sentence was that Rogers had no genuine

remorse, which was exhibited by her staring “daggers” at the trial judge. However, this

limited passage dissected from the sentencing transcript does not mean that the trial court

failed to consider the factors set forth in R.C. 2929.11 and 2929.12.

       {¶6} In support of her argument that the court must expressly state it considered

R.C. 2929.12 and 2929.11 on the record, Rogers cites to State v. Wiley, 180 Ohio App.3d

475, 2009-Ohio-109, 905 N.E.2d 1273 (4th Dist.).           In Wiley, the court stated at

sentencing that it had a “policy” that offenders who committed a certain offense “go to

prison.” Accordingly, while the trial court did not state on the record that it considered

R.C. 2929.11 or 2929.12, the Fourth District determined that this “policy” coupled with

the fact that the journal entry was silent as to consideration of R.C. 2929.12, left the

reviewing court to guess whether the trial court properly considered the factors set forth

in R.C. 2929.12.
       {¶7} In Rogers’s case, the trial court did not indicate that it had any preconceived

policy that offenders such as Rogers would be sent to prison. Although the court did not

expressly state on the record that it considered either R.C. 2929.11 or 2929.12, the court

explained that the sentence was being imposed due to the lack of genuine remorse and the

severity of the underlying facts of the case, which are both factors the court may consider

in determining a proper sentence under R.C. 2929.12.

       {¶8} Moreover, the trial court heard extensive mitigation arguments by defense

counsel regarding possible provocation by one of the victims, and that neither of the

victims were physically injured. The court also heard from the state regarding the facts

surrounding the shooting and considered a victim impact statement from the mother of

one of the victims.    Furthermore, the court stated that it reviewed the presentence

investigation report, which would contain information about Rogers’s relative lack of

criminal history.

       {¶9} Accordingly, while the trial court did not expressly state on the record that it

considered the seriousness and recidivism factors, sufficient information in the record

exists for this court to conclude that the trial court considered the factors contained in

R.C. 2929.12 in fashioning a sentence that complies with the purposes and principles of

R.C. 2929.11. Accordingly, Rogers’s assignment of error is overruled.

       {¶10} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR
