[Cite as State v. Thomas, 2020-Ohio-4096.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 9-19-66

        v.

SETH THOMAS,                                             OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 19-CR-263

                                     Judgment Affirmed

                            Date of Decision: August 17, 2020




APPEARANCES:

        Caleb Carson, III for Appellant

        Nathan R. Heiser for Appellee
Case No. 9-19-66


SHAW, P.J.

      {¶1} Defendant-appellant, Seth Thomas (“Thomas”), appeals the September

24, 2019 judgment of the Marion County Court of Common Pleas, journalizing his

conviction after pleading guilty to one count of third-degree felony abduction and

sentencing him to a maximum prison term of thirty-six months. On appeal, Thomas

assigns error to the trial court’s imposition of the maximum sentence.

                     Relevant Facts and Procedural History

      {¶2} On June 5, 2019, the Marion County Grand Jury returned a three-count

indictment against Thomas alleging that he committed the offenses of Count 1:

kidnapping, in violation of R.C. 2905.01(A)(1), a felony of the second degree, with

a repeat violent offender and a firearm specification; Count 2: abduction, in

violation of R.C. 2905.02(A)(2), a felony of the third degree, with a firearm

specification; and Count 3: having weapons while under disability, in violation of

R.C. 2923.13(A)(2), a felony of the third degree.

      {¶3} The charges arose from a wellness check conducted by law enforcement

on the victim. During the wellness check, the victim informed the officers that

Thomas was angry with her because he suspected she was working with law

enforcement. The victim relayed to the officers that Thomas pointed one handgun

at her head and another handgun at her stomach, and told her that she could not

leave the house until he allowed her to do so. Thomas was later found in possession


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of a handgun that matched the description of the firearm given by the victim. The

record further reflects that Thomas was under disability from a prior conviction.

Upon arraignment, Thomas entered a plea of not guilty to the charges.

       {¶4} On August 20, 2019, pursuant to a negotiated plea agreement, Thomas

withdrew his previously tendered not guilty plea and entered a plea of guilty to

Count 2, abduction, a third-degree felony. In exchange for Thomas pleading guilty,

the prosecution agreed to dismiss Count 1, second-degree felony kidnapping, with

the repeat violent offender and firearm specifications, the firearm specification

attached to the abduction charge in Count 2, and Count 3, third-degree felony having

weapons while under disability.

       {¶5} On September 23, 2019, Thomas appeared for sentencing. The trial

court imposed a maximum prison term of thirty-six months. The sentencing entry

was journalized the following day.

      {¶6} It is from this judgment that Thomas now appeals, asserting the

following assignments of error.

                       ASSIGNMENT OF ERROR NO. 1

      THE TRIAL COURT ERRED WHEN IT SENTENCED THE
      APPELLANT TO SERVE A MAXIMUM PRISON TERM.

                       ASSIGNMENT OF ERROR NO. 2

      THE TRIAL COURT ERRED IN SENTENCING THE
      APPELLANT WHEN IT FAILED TO ADEQUATELY
      ADDRESS DEFENSE COUNSEL’S OBJECTION TO

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       INFORMATION ATTACHED TO THE PRESENTENCE
       INVESTIGATION REPORT.

                             First Assignment of Error

       {¶7} In his first assignment of error, Thomas argues that the trial court erred

in imposing the maximum prison term upon him.

                                 Standard of Review

       {¶8} 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.

                                 Relevant Authority

       {¶9} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give

its reasons for imposing maximum or more than [a] minimum sentence[ ].’ ” State

v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v.

King, 2d Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45; State v. White, 3d

Dist. Marion No. 9-19-32, 2020-Ohio-717, ¶ 8. Nevertheless, when exercising its

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sentencing discretion, a trial court must consider the statutory policies that apply to

every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.

State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.

       {¶10} Revised Code 2929.11 provides that sentences for a felony shall be

guided by the overriding purposes of felony sentencing: “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). In order to comply with

those purposes and principles, R.C. 2929.12 instructs a trial court to consider

various factors set forth in the statute relating to the seriousness of the offender’s

conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(E).

                                     Discussion

       {¶11} In the case sub judice, Thomas was convicted of a third degree felony.

Pursuant to R.C. 2929.14(A)(3)(b), a prison term for a third degree felony violation

such as the one in this case “shall be a definite term of nine, twelve, eighteen,

twenty-four, thirty, or thirty-six months.” The trial court sentenced Thomas to a

thirty-six month prison term on the third degree felony, which was within the

appropriate statutory range.


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       {¶12} On appeal, Thomas argues that the trial court “predetermined the

sentence it was going to impose because of the trial court’s admonishment regarding

the circumstances of [Thomas’] change of plea.” (Appt. Brief at 3). In other words,

Thomas asserts that the record does not support the sentence imposed by the trial

court. Specifically, Thomas contends that trial court imposed the maximum prison

term upon him because of its concerns with the prosecution’s last minute plea offer,

dismissing two of the three counts and the specifications listed in the indictment,

rather than the trial court solely considering the facts presented in the record

regarding his abduction conviction.

       {¶13} In support, Thomas points to the following remarks made by the trial

court at sentencing.

       Trial Court: Well I will make just a few comments before I
       officially announce my sentence. I’d like to start out by kinda
       pointing out while we’re on the record here in the Courtroom, we
       took your plea in chambers on the morning of trial when we had
       a courtroom full of jurors here. And so we had a Court Reporter
       there while we took a plea in chambers but not really open to the
       public to hear some of the comments that I made at the time that
       I accepted the plea. I’m going to just kind of, I guess, repeat a
       couple of the things, or maybe expand on a couple of things that
       we discussed at the time that we accepted the change of plea.

       The Court was not, as I’m sure everyone will recall, happy about
       the fact that on the morning of trial, a new and different offer to
       resolve this case was made other than the offers that in the—were
       made in the weeks and months leading up to the case. The Court
       certainly understands, based on the representations that were
       made to the Court, about some serious issues that the State had
       with regard to being able to locate and serve and secure the

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       appearance of certain witnesses at trial and things like that. The
       Court also understands some arguments that were made by the—
       counsel for the Defendant with regard to legal issues that may
       apply, especially with regard to the Kidnapping count that was
       made part of the original indictment as pertaining to allegations
       that the victim in this case had her liberty restrained with purpose
       to hold her for ransom or as shield or hostage. The Court
       understands that there may have been some, I guess, evidentiary
       issues as pointed out by the State with regard to their ability to
       prove those allegations.

       So, you know, the Court is very, very concerned about the fact
       that there were some very serious charges and specifications that
       were dismissed at the time that the Defendant entered his plea,
       and the Court wants to make abundantly clear, for the record,
       that the [sic] I would never accept that sort of thing just as part of
       a plea bargain agreement, for lack of better description. That the
       Court went along with the plea agreement that was made in this
       case in which the other charges and specifications were dismissed
       in exchange for the Defendant’s plea to the count of Abduction
       because representations to the court about witnesses having failed
       to appear and the State having been unable to secure the
       cooperation of witnesses that were required to go forward with
       those other counts.

       That having been said, I am limiting my consideration as to an
       appropriate sentence in this case to the single count to which the
       Defendant did enter a plea, which is still an extremely serious
       violent felony, the charge of Abduction to which the Defendant
       entered a plea.

(Sept. 23, 2019 Sent. Hrg., at 11-12). Contrary to Thomas’ view, we do not find

that these comments by the trial court demonstrate anything other than the trial

court’s intentions to consider only the facts of his abduction conviction in imposing

a sentence.



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       {¶14} This notwithstanding, Thomas also argues that the trial court failed to

appropriately consider the purposes and principles of felony sentencing because it

did not specifically acknowledge on the record its consideration of an overriding

purpose of felony sentencing under R.C. 2929.11(A), which is to promote the

effective rehabilitation of the offender by using the minimum sanctions that the

court determines can accomplish those purposes without imposing an unnecessary

burden on state or local government resources. Although the trial court must

consider the purposes and principles of felony sentencing set forth in R.C. 2929.11

and the sentencing factors listed in R.C. 2929.12, the sentencing court is not required

to “state on the record that it considered the statutory criteria or discuss them.” State

v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 32, quoting State v.

Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995). Rather, a trial court’s statement

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

its obligations under the sentencing statutes. State v. Abrams, 8th Dist. Cuyahoga

No. 103786, 2016-Ohio-4570, citing State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, ¶ 18.

       {¶15} Here, the trial court stated the following in its sentencing entry

pronouncing Thomas’ sentence: “The Court has carefully considered the record,

the oral statements, and the presentence investigation report. The Court has also

carefully considered the purposes and principles of sentencing in accordance with


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R.C. 2929.11 and the appropriate seriousness and recidivism factors in accordance

with 2929.12.” (Doc. No. 60).

       {¶16} Moreover, the sentencing transcript supports the trial court’s decision

to impose the maximum sentence in this case. The trial court noted that Thomas

was on post-release control when he committed the abduction offense and that

Thomas had a history of engaging in similar conduct by committing serious and

violent felonies. Specifically, the record reveals that Thomas had previously been

convicted of aggravated robbery, burglary, and abduction. Thomas also used

firearms to commit some of these offenses.            In addition, the presentence

investigation report indicated that Thomas had not responded favorably to the

sanctions imposed upon him in the past. The trial court further noted that Thomas

showed no remorse to during the presentencing interview and instead blamed the

victim, who the trial court found had suffered serious psychological harm as a result

of Thomas’ conduct.

       {¶17} In sum, the record reflects that the trial court’s sentence was within the

permissible statutory range and the judgment entry of sentence indicates that the

trial court properly considered the criteria found in R.C. 2929.11 and R.C. 2929.12.

Since the record establishes that trial court considered all required sentencing

statutes and that the sentence is supported by the record, we conclude the trial court




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did not err in imposing the maximum sentence of thirty-six months in this case.

Accordingly, we overrule Thomas’ first assignment of error.

                            Second Assignment of Error

       {¶18} In his second assignment of error, Thomas claims that the trial court

erred when it failed to adequately address defense counsel’s objection to

information attached to the presentencing investigation report.        Specifically,

Thomas argues that the trial court failed to make findings under R.C. 2951.03(B)(5),

which addresses the procedure for handling alleged inaccuracies in a presentencing

investigation report and states as follows:

       If the comments of the defendant or the defendant’s counsel, the
       testimony they introduce, or any of the other information they
       introduce alleges any factual inaccuracy in the presentence
       investigation report or the summary of the report, the court shall
       do either of the following with respect to each alleged factual
       inaccuracy:

       (a) Make a finding as to the allegation;

       (b) Make a determination that no finding is necessary with
       respect to the allegation, because the factual matter will not be
       taken into account in the sentencing of the defendant.

R.C. 2951.03(B)(5).

       {¶19} At the beginning of the sentencing hearing, defense counsel objected

“to the inclusion of any correspondence between the Defendant and others that

[was] included in jails emails” with the presentencing investigation report. (Sept.



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23, 2019 Sent. Hrg., at 1). The trial court then made the following remarks on the

record:

       Trial court: And, I guess, the Court will just note for the record
       for what’s it worth, there were some copies of jail emails that were
       attached to the Presentence Investigation Report that was
       provided to the Court. Those were made available to counsel for
       their review.

       I will just make clear, for the record, that the Court would not
       allow the content of any jail emails to affect the Court’s decision
       with regards to the sentence to be imposed in this matter and any
       way shape or form.

(Sept. 23, 2019 Sent. Hrg., at 2). Notably, no further mention was made of the

emails by defense counsel or the trial court at the sentencing hearing.

       {¶20} On appeal, Thomas claims that the trial court failed to adequately

handle defense counsel’s objection to the inclusion of the jail emails with the

presentencing investigation report. However, Thomas fails to argue how R.C.

2951.03(B)(5) applies to these jail emails. There is no mention at the sentencing

hearing regarding the content of these emails, let alone any alleged factual

inaccuracy in the presentence investigation report, which R.C. 2951.03(B)(5) is

intended to remedy.

       {¶21} This notwithstanding, the trial court explicitly stated that it would not

consider the email correspondences in imposing its sentence, which is in effect a

determination under the statute “that no finding is necessary with respect to the

allegation, because the factual matter will not be taken into account in the sentencing

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of the defendant.” R.C. 2951.03(B)(5)(b). Accordingly, we find that any prejudice

Thomas claims to have suffered based upon these emails is unsupported by the

record and we overrule the second assignment of error on this basis.

       {¶22} For all these reasons, the assignments of error are overruled and the

judgment of the trial court is affirmed.

                                                              Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




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