[Cite as State v. Jones, 2016-Ohio-7697.]




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


State of Ohio                                   Court of Appeals No. L-16-1045

        Appellee                                Trial Court No. CR0201501867

v.

Derrick Andrew Jones                            DECISION AND JUDGMENT

        Appellant                               Decided: November 10, 2016

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, Brenda J. Majdalani,
        Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                            *****

        SINGER, J.

        {¶ 1} Appellant, Derrick Andrew Jones, appeals his sentence from the February

19, 2016 judgment of the Lucas County Court of Common Pleas. For reasons that

follow, we affirm.
                                   Assignment of Error
       {¶ 2} Appellant sets forth the following assignment of error:

              1) Appellant’s sentence is contrary to law.

                                    Background Facts

       {¶ 3} On May 14, 2015, appellant was allegedly hiding merchandise in his

clothing at a Family Dollar when an employee of the store confronted him. In response,

appellant allegedly threatened the employee and swung his arm at her, but missed.

Appellant then damaged the door as he exited the store, entered a waiting vehicle, and

fled the scene.

       {¶ 4} On May 28, 2015, appellant was indicted on one count of robbery in

violation of R.C. 2911.02(A)(2), a felony of the second degree. This matter was filed as

case No. CR-15-1867 and was consolidated with case Nos. CR-14-1006 and CR-14-2627

because appellant was on active probation when indicted.

       {¶ 5} On December 15, 2015, appellant pled guilty to robbery in violation of R.C.

2911.02(A)(3), a felony of the third degree. The trial court accepted the plea, found

appellant guilty of the violation, and eventually set sentencing for February 18, 2016.

       {¶ 6} At this December 15 hearing, appellant also moved the court to modify his

$20,000, no 10 percent bond. The trial court reset bond at supervised own recognizance

with five added conditions. The conditions were stated as:

              1) [Appellant] to reside at Whitney Manor until further ordered of

       this Court; 2) [Appellant] to ingest no illicit drugs, alcohol and/or

       prescription medication not lawfully prescribed to [appellant]; 3)

2.
       [Appellant] to submit to random drug testing including urinalysis, blood

       testing, or drug patch to be determined by the Centralized Drug Testing

       Unit; 4) [Appellant] to submit to random Breathalyzer testing; and 5)

       [Appellant] to have no direct or indirect contact with any Family Dollar

       Stores.

       {¶ 7} After being released to Whitney Manor, appellant violated these conditions

with the exception of never making direct contact with Family Dollar Stores.

       {¶ 8} At the February 18, 2016 sentencing hearing, the trial court stated, “[i]t is the

court’s belief from all information received that [appellant] did not have any direct or

indirect contact with the victim. All the other conditions of his supervised OR bond per

our December 15th were violated.”

       {¶ 9} The trial court later stated, “[t]he court considered the record, oral

statements, victim impact – victim impact statement and PS— as well as the PSI

prepared. The court considered the principles and purposes of sentencing and balanced

the seriousness and recidivism factors.”

       {¶ 10} Based on the considerations, the trial court imposed sentence for case No.

CR-15-1867, stating, “[t]he court finds that the [appellant] is not amenable to community

control and that prison is consistent with the principles and purposes of sentencing.

Therefore, it is ordered that the [appellant] serve a term of 24 months[.]” The court also

imposed three years mandatory postrelease control for the robbery and found appellant

had served sufficient time to terminate case Nos. CR-14-1006 and CR-14-2627.



3.
       {¶ 11} The sentence was journalized February 19, 2016. The February 19 entry

stated, “[t]he Court has considered the record, oral statements, any victim impact

statement and presentence report prepared, as well as the principles and purposes of

sentencing under R.C. 2929.11, and has balanced the seriousness, recidivism and other

relevant factors under R.C. 2929.12.” The entry further stated, “[t]he Court further finds

*** that prison is consistent with the purposes of R.C. 2929.11.”

       {¶ 12} On March 3, 2016, appellant filed a timely appeal from the February 19,

2016 judgment.

                                     Legal Analysis
       {¶ 13} In the sole assignment of error, appellant argues his sentence of

imprisonment was improper because the trial court failed to consider rehabilitation and

how his criminal history is linked to drugs and mental illness. Appellee contends the

record supports imposing a prison term because the trial court considered the principles

and purposes of sentencing and the seriousness and recidivism factors.

                                   Standard of Review

       {¶ 14} We review felony sentences under a two-prong approach. R.C.

2953.08(G)(2) provides that an appellate court may increase, reduce, modify, or vacate

and remand a disputed sentence 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



4.
       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant; or

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

       {¶ 15} See State v. Behrendt, 6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, ¶ 6;

see also State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 23.

       {¶ 16} Here, appellant challenges his imposed sentence as “contrary to law.”

Therefore, we will only address this argument.

                                     Contrary to Law

       {¶ 17} “[A] sentence was not clearly and convincingly contrary to law where the

trial court considered the purposes and principles of sentencing under R.C. 2929.11 along

with the seriousness and recidivism factors under R.C. 2929.12, properly applied

postrelease control, and imposed a sentence within the statutory range.” State v. Craig,

6th Dist. Wood No. WD-14-061, 2015-Ohio-1479, ¶ 9.

                                   Postrelease Control
       {¶ 18} “Each sentence to a prison term *** for a felony of the third degree that is

an offense of violence and is not a felony sex offense shall include a requirement that the

offender be subject to a period of post-release control imposed by the parole board after

the offender’s release from imprisonment.” See R.C. 2967.28(B).

       {¶ 19} A three-year period of post release control is mandatory for a felony of the

third degree that is an offense of violence but not a sex offense. See R.C. 2967.28(B)(3).




5.
       {¶ 20} Here, the trial court imposed a three year mandatory term of postrelease

control upon appellant under R.C. 2967.28(B)(3). Specifically, the February 19, 2016

sentencing entry stated, “[t]he Court further finds that this offense is an offense of

violence pursuant to R.C. 2901.01(A)(9)(a)-(d). It is further ORDERED the [appellant]

is subject to 3 year mandatory post-release control as to count 1 after the [appellant]’s

release from imprisonment pursuant to R.C. 2967.28 and 2929.14.”

       {¶ 21} Consequently, the trial court properly applied postrelease control upon

appellant and his sentence is not contrary to law on that basis.

                                      Statutory Range

       {¶ 22} R.C. 2929.14(A)(3)(a)-(b) provides a statutory range for a third-degree

felony as 9 to 60 months. See, e.g., State v. Grant, 11th Dist. Lake No. 2013-L-101,

2014-Ohio-5378, ¶ 1 (affirming 24-month prison term for robbery, a felony of the third-

degree).

       {¶ 23} Here, appellant was sentenced to 24 months incarceration for his third-

degree robbery conviction. This is within the statutory range.

       {¶ 24} Accordingly, the trial court properly imposed sentence within the statutory

range upon appellant and his sentence is not contrary to law on that basis.

                         Principles and Purposes of Sentencing
       {¶ 25} R.C. 2929.11(A) pertinently provides, “[t]he overriding purposes of felony

sentencing are to protect the public from future crime by the offender and others and to

punish the offender using the minimum sanctions.” It follows, “the sentencing court shall



6.
consider the need for incapacitating the offender, deterring the offender and others from

future crime, rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.” See R.C. 2929.11(A); see also Craig, 6th Dist. Wood No.

WD-14-061, 2015-Ohio-1479, at ¶ 10.

       {¶ 26} A felony sentence, therefore, “shall be reasonably calculated to achieve the

two overriding purposes *** set forth in [R.C. 2929.11(A)], commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon the victim,

and consistent with sentences imposed for similar crimes committed by similar

offenders.” See Craig.

       {¶ 27} Here, at the February 18, 2016 sentencing hearing, the trial court

specifically discussed its reluctance to send appellant to prison, but rationalized its

sentence based on its duty to protect the public and its attempt to punish appellant for his

long history of theft-related crimes. Further, considering the imposed sentence was in

accordance with statutory guidelines of R.C. 2967.28(B)(3) and R.C. 2929.14(A)(3)(a)-

(b), we find the sentence is consistent with sentences imposed for similar crimes

committed by similar offenders.

       {¶ 28} Consequently, the finding under R.C. 2929.11 is supported by the record

and appellant has failed to prove by clear and convincing evidence the sentence is

contrary to law on that basis.




7.
                          Seriousness and Recidivism Factors

       {¶ 29} Lastly, R.C. 2929.12(A) pertinently provides, “a court that imposes a

sentence under this chapter upon an offender for a felony has discretion to determine the

most effective way to comply with the purposes and principles of sentencing.”

       {¶ 30} In this determination, “R.C. 2929.12 provides a non-exhaustive list of

factors the court must consider in determining the relative seriousness of the underlying

crime and the likelihood that the defendant will commit another offense in the future.”

State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26. “The

factors include: (1) the physical, psychological, and economic harm suffered by the

victim, (2) the defendant’s prior criminal record, (3) whether the defendant shows any

remorse, and (4) any other relevant factors.” Id., citing R.C. 2929.12(B) and (D); see also

Behrendt, 6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, at ¶ 6.

       {¶ 31} A sentencing court is not required to use any specific language or make

specific findings to demonstrate that it considered the applicable seriousness and

recidivism factors. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

       {¶ 32} Here, at the sentencing hearing, the trial court referenced appellant’s pre-

sentence investigation report, violation of bond conditions, violations of probation, and

35 plus years of crimes including 16 felonies and 101 misdemeanors. Therefore, we

cannot say the trial court committed reversible error when imposing prison and

postrelease control upon appellant. Factoring in appellant’s criminal record, alone, is

sufficient basis to conclude the finding under R.C. 2929.12 is supported by the record.



8.
       {¶ 33} Accordingly, appellant’s sole assignment of error is not well taken.

                                       Conclusion
       {¶ 34} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay 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
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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