[Cite as State v. Smith, 2020-Ohio-3414.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 17-19-19

        v.

JESSIE SMITH,                                             OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 19CR000039

                                      Judgment Affirmed

                              Date of Decision: June 22, 2020




APPEARANCES:

        Ralph A. Bauer for Appellant

        William R. Zimmerman for Appellee
Case No. 17-19-19


PRESTON, J.

        {¶1} Defendant-appellant, Jessie Smith (“Smith”), appeals the September

10, 2019 judgment of sentence of the Shelby County Court of Common Pleas. For

the reasons that follow, we affirm.

        {¶2} On January 31, 2019, the Shelby County Grand Jury indicted Smith on

one count of failure to provide notice of a change of address in violation of R.C.

2950.05(F)(1), a third-degree felony.1 (Doc. No. 3). On May 2, 2019, Smith

appeared for arraignment and pleaded not guilty to the count of the indictment.

(Doc. No. 20).

        {¶3} A change of plea hearing was held on July 15, 2019. (July 15, 2019 Tr.

at 3-4). At the hearing, Smith withdrew his previous not guilty plea and pleaded

guilty to an amended count of fourth-degree felony failure to provide notice of a

change of address. (Id. at 3-4, 13); (Doc. Nos. 52, 53). The trial court accepted

Smith’s guilty plea, found him guilty, and ordered a presentence investigation

report. (July 15, 2019 Tr. at 13-14).

        {¶4} On September 10, 2019, the trial court sentenced Smith to 17 months in

prison.2 (Doc. No. 82).




1
  Smith was previously convicted of third-degree felony gross sexual imposition in Shelby County Common
Pleas Court case number 16CR00094. (Doc. No. 3). As a result, the related offense in the instant case was
charged as a third-degree felony. See R.C. 2950.99(A)(1)(a)(ii).
2
   On November 6, 2019, the trial court filed an amended judgment entry of sentence correcting a
typographical error in the spelling of Smith’s first name. (Doc. No. 107).

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       {¶5} Smith filed his notice of appeal on October 7, 2019. (Doc. No. 97). He

raises one assignment of error for our review.

                                 Assignment of Error

       The trial court erred in imposing the sentence upon Appellant.

       {¶6} In his assignment of error, Smith argues that the trial court erred by

sentencing him to 17 months in prison. Smith maintains that the record does not

support the trial court’s sentence and that his sentence “is clearly and convincingly

contrary to law because the trial court engaged in ‘minimal discussion’ regarding

the sentencing factors and focused too heavily on punishing the offender under

[R.C. 2929.11(A)].” (Appellant’s Brief at 5).

       {¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

       {¶8} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶


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9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing

State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. As a fourth-

degree felony, failure to provide notice of a change of address carries a sanction of

6 to 18 months’ imprisonment. R.C. 2950.99(A)(1)(a)(ii); R.C. 2929.13(B)(2) (Oct.

31, 2018) (current version at R.C. 2929.13(B)(2) (Oct. 17, 2019)); R.C.

2929.14(A)(4) (Oct. 31, 2018) (current version at R.C. 2929.14(A)(4) (Mar. 22,

2019)).

       {¶9} In this case, Smith was sentenced to 17 months’ imprisonment.

Accordingly, the trial court’s sentence is within the statutory range. “‘[A] sentence

imposed within the statutory range is “presumptively valid” if the [trial] court

considered applicable sentencing factors.’” State v. Nienberg, 3d Dist. Putnam Nos.

12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 10, quoting State v. Maggette, 3d Dist.

Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31, quoting State v. Collier, 8th Dist.

Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.

       {¶10} R.C. 2929.11 provides, in pertinent part, that the “overriding purposes

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

others, to punish the offender, and to promote the effective rehabilitation of 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).     To achieve the overriding purposes of felony


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sentencing, R.C. 2929.11 directs courts to “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.”

Id. In addition, R.C. 2929.11(B) instructs that a sentence imposed for a felony “shall

be reasonably calculated to achieve the three overriding purposes of felony

sentencing * * *, 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.” “In accordance with

these principles, the trial court must consider the factors set forth in R.C.

2929.12(B)-(E) relating to the seriousness of the offender’s conduct and the

likelihood of the offender’s recidivism.” Smith at ¶ 10, citing R.C. 2929.12(A). “‘A

sentencing court has broad discretion to determine the relative weight to assign the

sentencing factors in R.C. 2929.12.’” Id. at ¶ 15, quoting State v. Brimacombe, 195

Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio

St.3d 208, 215 (2000).

       {¶11} From the record, it is clear that the trial court sentenced Smith after

considering the overriding purposes of felony sentencing set forth in R.C.

2929.11(A) and the relevant R.C. 2929.12(B)-(E) factors. First, at the sentencing

hearing, the trial court noted that it had “considered the purposes and the principles

of sentencing under 2929.11 and the seriousness and the recidivism factors under


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2929.12.” (Sept. 10, 2019 Tr. at 6). Furthermore, in its judgment entry of sentence,

the trial court stressed that it had “considered * * * the principles and purposes of

sentencing under Ohio Revised Code Section 2929.11” and “balanced the

seriousness and recidivism factors of Ohio Revised Code Section 2929.12.” (Doc.

No. 82). Nevertheless, Smith argues that the trial court did not satisfy its duties

under the sentencing statutes because “the Judgment Entry of Sentencing, as well

as the communication between [Smith] and the trial court, shows a lacking of any

discussion as to whether or not the trial court weighed the * * * seriousness of his

conduct pursuant to [R.C.] 2929.12, as well as * * * [the] recidivism factors.” (See

Appellant’s Brief at 8). Smith’s argument is without merit. “A trial court’s

statement that it considered the required statutory factors, without more, is sufficient

to fulfill its obligations under the sentencing statutes.” Maggette at ¶ 32, citing State

v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-Ohio-4570, citing State v. Payne,

114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. Therefore, the record establishes that

the trial court fulfilled its obligation to consider R.C. 2929.11 and 2929.12 when it

sentenced Smith.

       {¶12} Moreover, the record supports the trial court’s sentence. Given the

nature of the instant offense, many of the R.C. 2929.12(B)-(E) factors do not apply.

However, it is clear that some of the factors do apply to Smith and that the trial court

was aware of and considered evidence corresponding to the applicable factors.


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First, the trial court was aware of both Smith’s considerable juvenile history and his

history of adult criminal convictions, and the trial court expressly referenced this

history in settling on an appropriate sentence. (Sept. 10, 2019 Tr. at 6-7); (PSI at 2-

5). See R.C. 2929.12(D)(2). In addition, the trial court recognized that Smith

committed the instant offense while he was on post-release control for his 2016

gross-sexual-imposition conviction. (Sept. 10, 2019 Tr. at 7); (PSI at 5). See R.C.

2929.12(D)(1).      Finally, the record contains evidence relevant to R.C.

2929.12(C)(4), (D)(5), and (E)(5)—the factors dealing with whether there are

“substantial grounds to mitigate [Smith’s] conduct, although the grounds are not

enough to constitute a defense” and whether Smith expressed genuine remorse for

his offense. At the sentencing hearing, Smith apologized for his offense and

explained that “[a]t the time, [he] was * * * getting high and stuff and wasn’t in the

right state of mind because of losing family members and stuff.” (Sept. 10, 2019

Tr. at 5). Thus, the trial court was able to assess whether Smith was sincerely

remorseful and whether Smith’s professed drug problem and difficulties brought on

by the loss of family members substantially mitigated his conduct. Ultimately, the

trial court had broad discretion to determine the relative weight to assign the R.C.

2929.12 factors, and on this record, we cannot find any fault in the trial court’s

decision to afford greater weight to the aggravating factors than to the mitigating

factors.


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        {¶13} In conclusion, the trial court properly considered the purposes and

principles of felony sentencing and applied the relevant R.C. 2929.12 factors.

Furthermore, Smith’s sentence is within the statutory range. Therefore, there is not

clear and convincing evidence that Smith’s sentence is unsupported by the record

or that his sentence is otherwise contrary to law. See Nienberg, 2017-Ohio-2920, at

¶ 23.

        {¶14} Smith’s assignment of error is overruled.

        {¶15} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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