[Cite as State v. Wooten, 2014-Ohio-745.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2013-A-0044
        - vs -                                 :

FLOYD WOOTEN,                                  :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011
CR 297.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Ashtabula County Court of Common Pleas. A jury

 convicted appellant Floyd Wooten of rape in violation of R.C. 2907.02(A)(1)(c), a felony

 of the first degree and unlawful sexual conduct with a minor in violation of R.C.

 2907.04(A), a felony of the third degree. At his original sentencing hearing he was

 sentenced to a definite prison term of six years for rape and a definite prison term of

 five years for unlawful sexual conduct with a minor to be served concurrently. This
court reversed that judgment because the unlawful sexual contact with a minor offense

and rape offense were allied offenses of similar import. On remand, the trial court held

a sentencing hearing to comply with our order and sentenced Wooten to six years in

prison for rape. Wooten now appeals the judgment that re-sentenced him.

      {¶2}   The facts of this case have already been stated in a previous opinion.

See State v. Wooten, 11th Dist. Ashtabula No. 2012-A-0021, 2013-Ohio-1841.

Therefore, a complete recitation of facts is not necessary. As his first assignment of

error, Wooten alleges that:

      {¶3}   “The trial court abused its discretion and erred to the prejudice of appellant

by sentencing him to six years imprisonment, in that said prison sentence is excessive

for the purposes set forth in Ohio Revised Code Section 2929.11 (A) and (B) and is not

necessary to protect the public.”

      {¶4}   Within this assignment of error, Wooten claims the trial court abused its

discretion by not giving the reasons why it made its decision to sentence the defendant

for six years. He also claims it was error for the trial court to not state its reason for the

sentence at the sentencing hearing.          Finally, he claims that the sentence was

disproportionate because he has no recent prior convictions and the victim experienced

a de minims amount of trauma. The state responds that the trial court was not required

to delineate the reasons for its decision and that the trial court explained the factors

and evidence it considered in the sentencing judgment entry. The state also claims we

only review the trial court’s decision to see if it did not consider the R.C. 2929.12

factors.

      {¶5}   In reviewing the propriety of a felony sentence, an appellate court must

engage in a two-part test.      “First, [appellate courts] must examine the sentencing

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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 shall be reviewed under an abuse-of-

discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4. The

term “abuse of discretion” is one of art, “connoting judgment exercised by a court,

which neither comports with reason, nor the record.” State v. Underwood, 11th Dist.

Lake No. 2008-L-113, 2009-Ohio-2089, ¶30. When an appellate court is reviewing a

pure issue of law, “the mere fact that the reviewing court would decide the issue

differently is enough to find error[.] * * * By contrast, where the issue on review has

been confined to the discretion of the trial court, the mere fact that the reviewing court

would have reached a different result is not enough, without more, to find error.” State

v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶67.

      {¶6}   When analyzing the second prong, we only look to see whether the trial

court has considered the R.C. 2929.12 factors. Such a consideration does not require

the trial court to “use specific language or make specific findings on the record in order

to evince the requisite consideration of the applicable seriousness and recidivism

factors (of R.C. 2929.12.).” State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-

Ohio-4198, ¶10, quoting State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302. The

Ohio Supreme Court has found that “[a] silent record raises the presumption that a trial

court considered the factors contained in R.C. 2929.12.” State v. Adams, 37 Ohio

St.3d 295 (1988), paragraph three of the syllabus; State v. Greitzer, 11th Dist. Portage

No. 2006-P-0090, 2007-Ohio-6721, ¶28. The burden is on the defendant to present

evidence to rebut the presumption that the court considered the sentencing criteria.

State v. Cyrus, 63 Ohio St.3d 164, 166 (1992). In order to rebut this presumption, “a

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defendant must either affirmatively show that the court failed to [consider the statutory

factors], or that the sentence the court imposed is ‘strikingly inconsistent’ with the

statutory factors as they apply to his case.” State v. Bigley, 9th Dist. Medina No.

08CA0085-M, 2009-Ohio-2943, ¶14, quoting State v. Rutherford, 2d Dist. No. 08CA11,

2009-Ohio-2071, ¶34.

      {¶7}   At sentencing, the trial court merged Wooten’s conviction of unlawful

sexual contact with a minor with his conviction of rape and sentenced him to six years

in prison on the rape conviction. Pursuant to R.C. 2907.02(B), rape is considered a

first degree felony. First degree felonies carry a prison term of three, four, five, six,

seven, eight, nine, ten, or eleven years. R.C. 2929.14(A)(1). Because six years is a

prison term that falls within that range, the first prong of Kalish is satisfied.

      {¶8}   As for the second prong, we agree with the state’s position. The victim

was a minor and has continually suffered nightmares as a result of the crime. Wooten

also had access to her as he was renting a place where the minor resided with her

parents. The defense presented mitigating evidence of homelessness, mental health

problems and drug use. Based on this evidence, a sentence of six years was not

strikingly inconsistent with the available evidence.

      {¶9}   Furthermore, although Crim.R. 32(A) requires a sentencing court to state

its statutory findings and give reasons supporting those findings if needed, the trial

court in this case was only required to conduct a limited sentencing hearing to correct

its sentencing error. Consequently, the trial court did not err in not fully explaining the

reasoning for its sentence at the hearing.

      {¶10} The first assignment of error is without merit.

      {¶11} As his second assignment of error, Wooten alleges that:

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      {¶12} “The appellant received ineffective assistance of counsel in violation of his

rights pursuant to the Sixth Amendment to the United States Constitution and Section

10, Article I of the Ohio Constitution.”

      {¶13} Wooten alleges that his trial counsel erred by not requesting the trial court

to conduct a full sentencing hearing or at the very least make a statement on his behalf

indicating the mitigating circumstances for his sentence. Wooten has failed to indicate

what mitigating circumstances trial counsel should have presented if his trial counsel

was given the opportunity to address the court.         The state argues that making

arguments in support of mitigating circumstances would not have changed his

sentence.

      {¶14} In order to prevail on a claim of ineffective assistance of counsel, appellant

must establish that: (1) the performance of defense counsel was seriously flawed and

deficient; and (2) the result of appellant's trial would have been different if defense

counsel had provided proper representation. See Strickland v. Washington, 466 U.S.

668 (1984). Trial counsel benefits from a strong presumption of competence. See

State v. Smith, 17 Ohio St.3d 98 (1985).       In other words, defense counsel is not

ineffective unless his or her performance fell below an objective standard of reasonable

representation, and the defendant is prejudiced from that performance. State v.

Bradley, 42 Ohio St.3d 136 (1989). Nevertheless, analysis of whether counsel's

performance was deficient is not necessary if a claim can be disposed of by showing a

lack of sufficient prejudice. Id.

      {¶15} In our previous judgment, we found the trial court erred in finding the

unlawful sexual contact with a minor and rape were not allied offenses of similar import.

Wooten, supra, ¶59. Accordingly, we remanded “for further proceedings consistent

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with the opinion.” Id., ¶63. Although the remand instruction is broad, it is clear from

the opinion that the only error in the original sentence dealt with the issue of allied

offenses of similar import.    The trial court is not required to conduct a de novo

sentencing hearing because an appellate court found error in the original sentence.

State v. Morgan, 2d Dist. Champaign No. 09CA21, 2010-Ohio-2925, ¶14. Rather, a

trial court is only required to conduct the tasks that are necessary to correct the error in

its previous judgment

      {¶16} Nothing in our prior opinion or the nature of the sentencing error indicates

that Wooten was entitled to a de novo sentencing hearing. Furthermore, the trial court

had already heard trial counsel’s mitigating statement. Wooten has not provided any

reason why a mitigating statement by trial counsel would have affected his sentence

and we do not see how a new statement concerning mitigating circumstances would

affect his sentence. As such, Wooten was not prejudiced by trial counsel’s failure to

request an opportunity to provide a mitigating statement at the re-sentencing hearing.

      {¶17} The second assignment of error is without merit.

      {¶18} The judgment of the trial court is affirmed.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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