[Cite as State v. Simon, 2016-Ohio-170.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                          C.A. No.     14CA0067-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
TREBOR A. SIMON                                        COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   13CR0765

                                 DECISION AND JOURNAL ENTRY

Dated: January 19, 2016



        CARR, Presiding Judge.

        {¶1}     Appellant Trebor Simon appeals his sentence imposed by the Medina County

Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     Simon pleaded guilty to one count of unlawful sexual conduct with a minor, a

felony of the fourth degree; and one count of illegal use of a minor in nudity-oriented material or

performance, a felony of the fifth degree. The trial court sentenced him to 12 months in prison

and classified him as a Tier II sexual offender. Simon filed a timely appeal and raises one

assignment of error for review.

                                                 II.

                                         ASSIGNMENT OF ERROR

        THE SENTENCE IMPOSED BY THE TRIAL COURT IS NOT SUPPORTED
        BY THE RECORD AND IS CONTRARY TO LAW IN VIOLATION OF R.C.
        2929.12.
                                                   2


       {¶3}       Simon argues that the trial court erred by imposing a sentence that is contrary to

law and not supported by the record. This Court disagrees.

       {¶4}       This Court utilizes the test set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, when reviewing criminal sentences. See State v. Santamaria, 9th Dist. Summit No.

27637, 2015-Ohio-5097, ¶ 8.

       First, [we] must examine the sentencing court’s compliance with all applicable
       rules and statutes in imposing the sentence to determine whether the sentence is
       clearly and convincingly contrary to law. If this first prong is satisfied, the trial
       court’s decision in imposing the term of imprisonment is reviewed under the
       abuse-of-discretion standard.

Kalish at ¶ 26.

       {¶5}       The Supreme Court of Ohio has held that “[t]rial courts have full discretion to

impose a prison sentence within the [applicable] statutory range[.]” State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. In exercising that discretion, “‘[a]

court must carefully consider the statutes that apply to every felony case[,] * * * includ[ing] R.C.

2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance

in considering factors relating to the seriousness of the offense and recidivism of the offender.’”

State v. Davison, 9th Dist. Lorain No. 10CA009803, 2011-Ohio-1528, ¶ 12, quoting State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. “[W]here the trial court does not put on the

record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is

presumed that the trial court gave proper consideration to those statutes.” (Alterations sic.) State

v. Steidl, 9th Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting Kalish at ¶ 18, fn.

4. “Unless the record shows that the court failed to consider the factors, or that the sentence is

strikingly inconsistent with the factors, the court is presumed to have considered the statutory
                                                 3


factors if the sentence is within the statutory range.” (Internal quotations and citations omitted.)

State v. Fernandez, 9th Dist. Medina No. 13CA0054-M, 2014-Ohio-3651, ¶ 8.

       {¶6}    The trial court sentenced Simon to twelve months in prison for the fourth degree

felony and to six months incarceration for the fifth degree felony, both terms which fall within

the prescribed statutory range. R.C. 2929.14(A)(4) and (5). Simon does not dispute that point.

As the sentence falls within the statutory range, it is not contrary to law; accordingly, the first

prong of the Kalish test is satisfied. See State v. Thrasher, 9th Dist. Summit No. 27547, 2015-

Ohio-2504, ¶ 6.

       {¶7}    Simon next argues that the sentencing court abused its discretion because the

record does not support the sentence imposed.         Specifically, Simon argues that the court

accorded improper weight in considering the seriousness and recidivism factors enumerated in

R.C. 2929.12. An abuse of discretion is more than an error of judgment; it means that the trial

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶8}    “The 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

that the court determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.” R.C. 2929.11(A). R.C. 2929.12(A) in turn provides that a

sentencing judge has discretion to determine the most effective means of complying with the

purposes and principles of sentencing. R.C. 2929.12(B) includes factors that suggest that the

offense is more serious. R.C. 2929.12(C) includes factors suggesting the offense is less serious.

The recidivism factors—factors indicating an offender is more or less likely to commit future

crimes—are set forth in R.C. 2929.12(D) and (E).
                                                4


       {¶9}     The record in this case reflects that the sentencing court considered the

presentence investigation report (“PSI”), which is included in the record for our review.

According to the offense summary in the PSI, the then 19-year old Simon engaged in a flirtatious

online relationship with the 14-year old victim and requested that she send him nude photos.

The relationship progressed to a physical one in a matter of days. When the victim showed up

where he was staying early one morning, Simon engaged in sexual intercourse with her. While

looking for the victim who had been reported by her parents as a runaway, the police questioned

Simon. He willingly allowed the police to review messages on his phone between the victim and

himself. During the course of review, the police saw a picture of a nude female who appeared to

be a minor. After obtaining a warrant and reviewing all the photos on Simon’s phone, the police

determined that Simon possessed multiple nude photos of multiple minor females. The PSI

indicated that Simon presented a high risk of offending based on his Ohio Risk Assessment

System score.     Finally, the PSI indicated that the victim suffered great emotional and

psychological harm as a result of the sexual conduct with Simon.

       {¶10} The trial court noted that Simon had a lengthy juvenile record, including multiple

domestic violence offenses. It further noted that Simon had violated the restrictions of house

arrest during the pendency of this case, that he failed to report for three successive weeks to his

bond reporting officer, and that he was charged with theft while on bond for the instant matter.

The State informed the court that Simon had also failed to comply with the court’s order that he

be tested for sexually transmitted diseases. The trial court opined that Simon would not likely

comply with any restrictions imposed as part of his sentence given his failure to comply with his

bond restrictions prior to sentencing.
                                                 5


       {¶11} Arguing for the imposition of community control, defense counsel asserted that

Simon’s sexual offender registration requirements would offer strong protections for the

community. The trial court distinguished the civil nature of sexual offender classifications from

sentences for criminal offenses, and ultimately rejected defense counsel’s recommendation.

Although sexual offender registration requirements are designed with community safety in mind,

the trial court was not unreasonable in this case in refusing to accord those civil restrictions much

weight, particularly given Simon’s lack of compliance with other court orders and restrictions

imposed during the pendency of this case.

       {¶12} Simon did not allocute to the crimes. At sentencing, he admitted that he knew

what he did was wrong, although he asserted that he did not know that the victim was fourteen.

       {¶13} Based on this Court’s review of the record, we conclude that the trial court was

not unreasonable in its weighing of the seriousness and recidivism factors in R.C. 2929.12. The

information in the PSI, which Simon did not dispute, indicated a history of establishing contact

with young teenage females and requesting nude pictures. Although Simon did not invite the

victim to his home on the day of the sexual conduct, he had gone to her apartment complex the

evening before and engaged in sexual contact with her before getting caught by the apartment

manager. In addition, he encouraged the victim to participate in a romantic relationship with

him. Furthermore, Simon had a lengthy juvenile record, frequently violated conditions and

restrictions of his bond, and was charged with a new offense while the instant matter was

pending. Upon review, we cannot say that the sentencing court abused its discretion in imposing

a mid-range sentence for the fourth degree felony and the minimum sentence for the fifth degree

felony. Simon’s assignment of error is overruled.
                                                 6


                                                III.

       {¶14} Simon’s sole assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       DONNA J. CARR
                                                       FOR THE COURT

MOORE, J.
SCHAFER, J.
CONCUR.

APPEARANCES:

WESLEY C. BUCHANAN, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and WILLIAM L. HANEK, Assistant Prosecuting
Attorney, for Appellee.
