[Cite as State v. Ellis, 2018-Ohio-5293.]



                                       IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Appellee,                                 :      CASE NO. CA2018-03-043

                                                  :              OPINION
     - vs -                                                      12/28/2018
                                                  :

ROY B. ELLIS, JR.,                                :

        Appellant.                                :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2017-09-1539



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Michele Temmel, 6 South Second Street, Suite 305, Hamilton, Ohio 45011, for appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Roy Ellis, Jr., appeals the sentencing decision of the

Butler County Court of Common Pleas. For the reasons detailed below, we affirm.

        {¶ 2} On April 16, 2017, appellant crossed the center line on Hamilton Cleves Road

and struck another vehicle head-on. Appellant was discovered at the scene and found to be

under the influence of heroin and prescription medication. The victim suffered very serious

injuries, resulting in permanent disabilities.
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      {¶ 3} Appellant was indicted on charges of aggravated vehicular assault in violation

of R.C. 2903.08(A)(1)(a) and (B)(1)(a), a second-degree felony, and vehicular assault in

violation of R.C. 2903.08(A)(2)(b) and (C)(2), a third-degree felony.

      {¶ 4} On January 4, 2018, appellant pled guilty to count two of the indictment,

vehicular assault, and the matter was set for sentencing. Prior to the sentencing hearing,

appellant requested a continuance to undergo a mental health evaluation to be used in

mitigation. The trial court denied appellant's request. The trial court then imposed the

maximum sentence, a mandatory five-year prison term. Appellant now appeals, raising two

assignments of error for review.

      {¶ 5} Assignment of Error No. 1:

      {¶ 6} THE TRIAL COURT'S DECISION TO IMPOSE THE MAXIMUM SENTENCE

DEFIES THE PURPOSES AND PRINCIPLES OF SENTENCING.

      {¶ 7} In his first assignment of error, appellant argues that his five-year prison

sentence is contrary to law because it defies the purposes and principles of sentencing. We

find no merit to appellant's argument.

      {¶ 8} This court reviews felony sentences pursuant to the standard of review set forth

in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is clearly and

convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-

Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate a sentence

only if, by clear and convincing evidence, "the record does not support the trial court's

findings under relevant statutes or that the sentence is otherwise contrary to law." State v.

Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7.

      {¶ 9} A sentence is not clearly and convincingly contrary to law where the trial court

"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the
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permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only

when it clearly and convincingly finds that the sentence is (1) contrary to law or (2)

unsupported by the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶

1.

       {¶ 10} When a defendant is sentenced, a trial court is not required to consider each

sentencing factor, "but rather to exercise its discretion in determining whether the sentence

satisfies the overriding purpose of Ohio's sentencing structure." State v. Stamper, 12th Dist.

Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 11. The factors set forth in R.C. 2929.12 are

nonexclusive, and R.C. 2929.12 explicitly permits a trial court to consider any relevant factors

in imposing a sentence. Id.

       {¶ 11} After reviewing the record, we find the trial court did not err by sentencing

appellant to the maximum five-year prison term, as his sentence was not contrary to law and

was supported by the record. As previously noted, appellant was convicted of vehicular

assault in violation of R.C. 2903.08(A)(2)(b), a third-degree felony pursuant to R.C.

2903.08(C)(2). R.C. 2929.14(A)(3)(a) provides the "prison term shall be" 12, 18, 24, 30, 36,

42, 48, 54, or 60 months. As such, appellant's five-year prison sentence is within the

permissible sentencing range.

       {¶ 12} The trial court also considered the purposes and principles of sentencing as

required by R.C. 2929.11 and 2929.12. This is evidenced by review of the transcript of the

sentencing hearing and the trial court's sentencing entry. The trial court acknowledged that

appellant may be a good person with a supportive family but noted "justice demands that

there's a price to pay for putting somebody in a wheelchair driving * * * in a state of

intoxication." In this case, appellant's actions caused the victim to suffer severe injuries that

will significantly impact the remainder of her life.
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       {¶ 13} After reviewing the record, we find that the trial court's sentence was not

contrary to law and that it is fully supported by the record. Though appellant contends that

he is remorseful, has taken responsibility for his actions, and is suffering from mental health

issues, his arguments in mitigation are unpersuasive given the nature of his conduct. The

consequences of his actions will have lasting and profound impact on the victim. As such,

we find the trial court's sentencing decision was not contrary to law. Appellant's first

assignment of error is overruled.

       {¶ 14} Assignment of Error No. 2:

       {¶ 15} THE TRIAL COURT ERRED WHEN IT DENIED A CONTINUANCE AT THE

REQUEST OF DEFENDANT.

       {¶ 16} In his second assignment of error, appellant argues the trial court erred by

denying his request for a continuance. Appellant maintains that the denial of a continuance

prior to the sentencing hearing to undergo a mental health evaluation was unreasonable and

amounted to an abuse of discretion. We disagree.

       {¶ 17} The decision whether to grant or deny a continuance is within the sound

discretion of the trial court and should not be reversed on appeal absent an abuse of that

discretion. State v. Unger, 67 Ohio St.2d 65, 67 (1981). An abuse of discretion connotes

more than an error of law or judgment; it implies that the court's attitude was unreasonable,

arbitrary, or unconscionable. State v. Kash, 12th Dist. Butler No. CA2002-10-247, 2004-

Ohio-415, ¶ 31

       {¶ 18} Furthermore, a trial court's decision to implement a psychological report under

R.C. 2947.06 is also discretionary. State v. Timberling, 2d Dist. Greene No. 2012-CA-35,

2013-Ohio-1377, ¶ 26; State v. Floyd, 8th Dist. Cuyahoga No. 101301, 2015-Ohio-763, ¶ 17.

Though a trial court "may appoint" psychologists or psychiatrists to make a report concerning

the defendant, it is not mandatory and is reviewed for an abuse of discretion. Id.
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       {¶ 19} In the present case, the trial court denied appellant's request for a

continuance, which was requested at the sentencing hearing. As indicated above, a

psychological report was not mandatory, and the trial court appropriately noted that appellant

was at least partially responsible for failing to secure that report. Furthermore, the trial court

noted, on several occasions, that it was aware that appellant was suffering from mental

health problems, but nevertheless found the imposition of a five-year prison sentence to be

appropriate. It is not clear how the results from a psychological report would impact the trial

court's sentencing decision, as the court had accepted appellant's claims with respect to

mental health. As a result, we find the trial court did not err by denying appellant's request for

a continuance. Appellant's second assignment of error is overruled.

       {¶ 20} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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