        [Cite as State v. Chandler, 2020-Ohio-164.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :   APPEAL NO. C-190153
                                                      TRIAL NO. B-1805251
     Plaintiff-Appellee,                          :
                                                         O P I N I O N.
  vs.                                             :

JENNIFER CHANDLER,                                :

     Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 22, 2020



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    Defendant-appellant Jennifer Chandler appeals from the trial court’s

judgment convicting her, following guilty pleas, of extortion and attempted extortion.

       {¶2}    Chandler was indicted on three counts of extortion in violation of R.C.

2905.11(A)(5). The state and Chandler reached a plea agreement in which Chandler

pled guilty to one count of extortion, a felony of the third degree, and one count of

attempted extortion, a felony of the fourth degree. The third count of extortion was

dismissed. After accepting Chandler’s guilty pleas, the trial court continued the case

for sentencing. Chandler’s counsel asked the court to release Chandler on bond,

stating that he had informed Chandler that if she were released on bond, stayed out

of trouble, and appeared for sentencing, it would demonstrate to the court that she

would be successful on probation. The trial court granted Chandler’s request to be

released on bond. The court informed Chandler that “if you get into any kind of

trouble or you don’t show up for sentencing, I will give you every single day I can in

prison. Got it?”

       {¶3}    Chandler failed to show up for her presentence investigation interview.

She also failed to appear for sentencing, and Chandler’s counsel stated that he

thought she was back on the streets and likely would not show up. The trial court

issued a capias for her arrest.

       {¶4}    A sentencing hearing was held after Chandler was apprehended.      The

trial court imposed a maximum sentence of 18 months in prison for the offense of

attempted extortion and a maximum sentence of 36 months in prison for the offense

of extortion. These sentences were made consecutive, resulting in an aggregate

sentence of 54 months in prison.        To support the imposition of consecutive

sentences, the trial court found that “consecutive sentences are necessary to protect



                                              2
                       OHIO FIRST DISTRICT COURT OF APPEALS



the public and not disproportionate to the seriousness of the offender’s conduct or

the danger the defendant poses to the public. The offender’s criminal history shows

a need to protect the public.”

          {¶5}   In a single assignment of error, Chandler argues that the trial court

imposed sentences that were contrary to law. Pursuant to R.C. 2953.08(G)(2), we

may modify or vacate a defendant’s sentence only if we clearly and convincingly find

that the record does not support the mandatory sentencing findings or that the

sentence is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231, ¶ 22-23; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st

Dist.).

          {¶6}   Chandler contends that the sentences imposed were contrary to law

because the trial court gave undue weight to Chandler’s failure to appear at

sentencing when imposing maximum, consecutive sentences, and because it failed to

consider the principles and purposes of sentencing pursuant to R.C. 2929.11 and

2929.12. As the Supreme Court of Ohio recently clarified in State v. Gwynne, Slip

Opinion No. 2019-Ohio-4761, ¶ 16-17, R.C. 2929.11 and 2929.12 apply only to a

review of individual sentences, and R.C. 2953.08(G)(2) provides the “exclusive

means of appellate review of consecutive sentences.”

          {¶7}    We first consider Chandler’s arguments that the trial court erred in

imposing maximum sentences because it improperly considered her failure to appear

and it failed to consider the principles and purposes of sentencing pursuant to R.C.

2929.11 and 2929.12. A defendant’s failure to appear is an appropriate recidivism

factor for the trial court to consider when determining whether to impose a

maximum sentence, and therefore the trial court did not err in considering

Chandler’s failure to appear at sentencing when imposing maximum sentences for

each of her offenses. See State v. Lowery, 1st Dist. Hamilton No. C-030316, 2003-

Ohio-5669, ¶ 22.

                                               3
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}   As to Chandler’s arguments concerning R.C. 2929.11 and 2929.12,

these are not fact-finding statutes, and in the absence of an affirmative

demonstration by the defendant to the contrary, we may presume that the trial court

considered them. State v. Patterson, 1st Dist. Hamilton No. C-170329, 2018-Ohio-

3348, ¶ 60. Chandler has made no such affirmative demonstration.

       {¶9}   We next consider Chandler’s argument that the trial court improperly

considered her failure to appear for sentencing when imposing consecutive

sentences. The record clearly indicates that the trial court had informed Chandler

that, should she fail to appear for sentencing, the court would impose as much prison

time as legally possible. It further indicates that the court did, in fact, consider

Chandler’s failure to appear when imposing sentence. It stated at the sentencing

hearing that “Ms. Chandler, your lawyer did everything he could to prevail upon me

to not do with you what I told you I was going to do. We took a chance on you and

you did nothing but thumb your nose at it and led police on chases and absconded.”

       {¶10} A trial court may not rely on a defendant’s failure to appear for
sentencing to justify consecutive sentences. State v. Cherry, 159 Ohio App.3d 307,

2004-Ohio-6431, 823 N.E.2d 911, ¶ 4 (1st Dist.); State v. Anderson, 1st Dist.

Hamilton Nos. C-030449 and C-030457, 2004-Ohio-760, ¶ 15. But where a trial

court makes the statutorily required findings to support the imposition of

consecutive sentences, and relies on other factors besides a defendant’s failure to

appear, the trial court’s improper consideration of the defendant’s failure to appear

is harmless error. Cherry at ¶ 4-5; Anderson at ¶ 15.

       {¶11} Here, the trial court made the necessary findings pursuant to R.C.
2929.14(C)(4) to support the imposition of consecutive sentences. Specifically, it

found that consecutive sentences were necessary to protect the public; that

consecutive sentences were not disproportionate to the seriousness of Chandler’s

conduct or the danger she posed to the public; and that Chandler’s criminal history

                                              4
                        OHIO FIRST DISTRICT COURT OF APPEALS



showed a need to protect the public. The trial court had a presentence investigation

report detailing Chandler’s prior convictions, and Chandler herself alluded to these

prior convictions when speaking at sentencing. We cannot clearly and convincingly

find that the record fails to support the trial court’s findings.                   See R.C.

2953.08(G)(2).       We therefore conclude that the trial court’s consideration of

Chandler’s failure to appear when imposing consecutive sentences was harmless

error.

         {¶12} The sentences imposed were not contrary to law.                    Chandler’s

assignment of error is overruled, and the judgment of the trial court is affirmed.

                                                                        Judgment affirmed.



MOCK, P.J., and WINKLER, J., concur.




Please note:

         The court has recorded its own entry on the date of the release of this opinion.




                                                   5
