[Cite as State v. Cox, 2017-Ohio-5550.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff - Appellee                 :       Hon. William B. Hoffman, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
DAVID COX                                    :       Case No. 16-CA-80
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     15 CR 539




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 21, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

WILLIAM C. HAYES                                     STEVEN T. WOLFE
Licking County Prosecutor                            Wolfe Law Group, LLC
                                                     1350 W. 5th Ave., Ste. 124
By: JENNA E. JOSEPH                                  Columbus, Ohio 43212
Assistant Prosecuting Attorney
20 S. Second Street, 4th Fl.
Newark, Ohio 43055
Licking County, Case No. 16-CA-80                                                      2




Baldwin, J.

       {¶1}   Appellant David Cox appeals a judgment of the Licking County Common

Pleas Court convicting him of failure to comply with the order or signal of a police officer

(R.C. 2921.331(B)(C)(3)), attempted burglary (R.C. 2911.12(A)(1), 2923.02(A)), having

weapons under disability (R.C. 2923.13(A)(1),(3)), and improper handling of a firearm in

a motor vehicle (R.C. 2923.16(B)). Appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On August 4, 2015, appellant attempted to break into a home.                 The

homeowner saw appellant, whom he recognized, run through the backyard, jump into a

maroon Chevy Impala, and drive away. The homeowner called the police, giving them

appellant’s name.

       {¶3}   A police officer located appellant and attempted to initiate a traffic stop.

Appellant sped away while reaching speeds in excess of 100 miles per hour. When the

vehicle was located abandoned in a cornfield, officers noted several rifles in plain sight

inside the vehicle, including a high-powered rifle within easy reach of the driver’s seat.

Appellant was later arrested and admitted to driving the vehicle.

       {¶4}   Appellant was indicted by the Licking County Grand Jury with failure to

comply with the order or signal of a police officer, attempted burglary, having weapons

under disability, and improper handling of a firearm in a motor vehicle.       Appellant was

found competent to stand trial after psychiatric examination.

       {¶5}   The State amended count one of the indictment, which charged appellant

with failure to comply with the order or signal of a police officer, from a felony of the third
Licking County, Case No. 16-CA-80                                                       3


degree to a first degree misdemeanor. Appellant then entered a plea of no contest to all

charges. He was sentenced to ninety days incarceration for failure to comply with the

order or signal of a police officer, thirty months incarceration for attempted burglary, thirty-

six months incarceration for having weapons under disability, and twelve months

incarceration for improper handling of a firearm in a motor vehicle. All sentences were to

be served concurrently.

       {¶6}   Appellant assigns a single error to his sentence:

       {¶7}   “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

IMPOSED THE MAXIMUM PRISON TERM FOR THE HIGHEST DEGREE OFFENSE

WHEN SENTENCING APPELLANT FOR TWO OR MORE OFFENSES ARISING OUT

OF A SINGLE INCIDENT.”

       {¶8}   Appellant argues that the court erred in failing to make findings in support

of imposing the maximum sentence of thirty-six months for having weapons under

disability. He argues the record does not demonstrate that the trial court considered

appellant’s mental illness in imposing the maximum sentence.

       {¶9}   Pursuant to R.C. 2953.08(A)(1)(b), appellant may appeal the instant

sentence, as it was imposed for two or more offenses arising out of a single incident, and

the court imposed the maximum prison term for the offense of the highest degree.

Appellant argues that we review the instant sentence for an abuse of discretion pursuant

to State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124. However, we

no longer review sentences pursuant to the standard set forth in Kalish. We now review

felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum,

146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22; State v. Howell, 5th Dist.
Licking County, Case No. 16-CA-80                                                  4


Stark No. 2015CA00004, 2015–Ohio–4049, ¶ 31. R.C. 2953.08(G)(2) provides we may

either increase, reduce, modify, or vacate a sentence and remand for resentencing where

we clearly and convincingly find that either the record does not support the sentencing

court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I),

or the sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d

209, 2014–Ohio–3177, 16 N.E.2d 659, ¶ 28. Accordingly, pursuant to Marcum this Court

may vacate or modify a felony sentence on appeal only if it determines by clear and

convincing evidence that: (1) the record does not support the trial court's findings under

relevant statutes, or (2) the sentence is otherwise contrary to law.

       {¶10} R.C. 2953.08(G)(2)(a), allowing appellate review of whether the record

supports findings made by the trial court, does not apply in the instant case. R.C.

2953.08(G)(2)(a) sets forth a standard for review of findings made pursuant to specific

statutes, none of which are applicable to the instant case. Therefore, we only review the

instant sentence to determine if it is contrary to law.

       {¶11} A trial court's imposition of a maximum prison term is not contrary to law as

long as the court sentences the offender within the statutory range for the offense, and in

so doing, considers the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.

Santos, 8th Dist. Cuyahoga No. 103964, 2016-Ohio-5845, ¶ 12. Although a trial court

must consider the factors in R.C. 2929.11 and 2929.12, there is no requirement that the

court state its reasons for imposing a maximum sentence, or for imposing a particular

sentence within the statutory range. Id.
Licking County, Case No. 16-CA-80                                                     5


       {¶12} In the instant case, a sentence of thirty-six months was within the statutory

framework set forth in R.C. 2929.14(A)(3)(b) for a felony of the third degree. Further, the

trial court stated in its sentencing entry that it had considered the record, oral statements,

and the presentence investigation report, as well as the principles and purposes of

sentencing set forth in RC. 2929.11 and the seriousness and recidivism factors set forth

in R.C. 2929.12. The sentence is therefore not contrary to law.

       {¶13} Appellant’s reliance on State v. Crutchfield, 5th Dist. Ashland No. 11-COA-

049, 2012-Ohio-2892, is misplaced. First, we note that in Crutchfield, we reviewed the

sentence for an abuse of discretion pursuant to the former standard of review as set forth

in Kalish, supra. Further, we did not state that findings were required on the part of the

trial court for a maximum sentence, but merely referred to the findings the court set forth

in its entry in finding no abuse of discretion. Id. at ¶¶29-32.

       {¶14} The assignment of error is overruled. The judgment of the Licking County

Common Pleas Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Delaney, P.J. and

Hoffman, J. concur.
