[Cite as State v. Clayton, 2014-Ohio-112.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99700


                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                 vs.

                             ARTHUR J. CLAYTON, III
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED

                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-564866

              BEFORE:          Blackmon, J., Jones, P.J., and S. Gallagher, J.

              RELEASED AND JOURNALIZED:                    January 16, 2014
                                     -i-

ATTORNEY FOR APPELLANT

John A. Powers
The Powers Law Firm, L.L.C.
700 W. St. Clair Avenue, Suite 214
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Jeffrey S. Schnatter
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Arthur Clayton, III appeals his sentence subsequent to pleading

guilty and assigns the following errors for our review:

       I. The trial court erred by infusing a belief that appellant had committed
       other, dismissed crimes into a decision to impose a maximum sentence
       against appellant.

       II. The trial court erred in failing to consider the factors enumerated in
       O.R.C. §§ 2929.11 and 2929.12, which weighed in favor of appellant.

       III. The trial court erred in considering evidence at sentencing that “would
       have” been presented to a jury trial.

       {¶2} Having reviewed the record and pertinent law, we affirm Clayton’s sentence.

The apposite facts follow.

       {¶3} On July 31, 2011, the Cuyahoga County Grand Jury indicted Clayton on three

counts of rape and three counts of kidnapping.            Ultimately, on February 5, 2013,

pursuant to a negotiated plea agreement, Clayton pleaded guilty to one count of rape and

one count of gross sexual imposition. The state dismissed the remaining charges and the

trial court referred Clayton to the probation department for the preparation of a

presentence investigation report.

       {¶4} On March 11, 2013, the trial court held a sentencing hearing and determined,

among other things, that the two counts were allied offenses of similar import. As such,

the state elected that the trial court sentence Clayton on the count for rape. Thereafter,

the trial court sentenced Clayton to a prison term of ten years. Clayton now appeals.

                             Felony Sentencing Considerations
       {¶5} For ease of discussion we begin with the second assigned error, wherein

Clayton argues the trial court failed to consider factors enumerated in R.C. 2929.11 and

2929.12 that he believed weighed in his favor.

       {¶6} Initially, we note Clayton does not dispute that his sentence is within the

permissible statutory range. Instead, Clayton argues that the record does not indicate that

he committed any prior criminal acts, that he has never been accused of any other

sexually oriented offenses, and that the trial court clearly failed to consider the minimum

sanctions.

       {¶7} “[W]here a criminal sentence is within statutory limits, an appellate court

should accord the trial court the presumption that it considered the statutory mitigating

criteria in the absence of an affirmative showing that it failed to do so.” State v. White,

8th Dist. Cuyahoga No. 99691, 2013-Ohio-4925, quoting               State v. Taylor, 76 Ohio

App.3d 835, 839, 603 N.E.2d 401 (2d Dist.1992); see also State v. Exline, 8th Dist.

Cuyahoga No. 87945, 2007-Ohio-272, ¶ 27.

       {¶8} A review of the record reveals that the trial court imposed a sentence that was

within the statutory limits. We find that Clayton has not demonstrated, nor has a review

of the record disclosed, that the trial court failed to consider the sentencing criteria.

       {¶9} In the instant case, the trial court’s journal entry indicates that the court

considered “all required factors of the law”and concluded that “prison is consistent with

the purpose of R.C. 2929.11.” The trial court’s statement that it considered the required

statutory factors, without more, is sufficient to fulfill its obligations under the sentencing
statutes. See State v. Kamleh, 8th Dist. Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61

citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 18. See

also State v. Wright, 8th Dist. Cuyahoga No. 95096, 2011-Ohio-733, ¶ 4.

       {¶10} The sentencing transcript also reveals that the trial court considered the

statutory criteria set forth in R.C. 2929.11 and 2929.12 and gave full consideration to the

principles and purposes of sentencing, as well as the seriousness of the offense and the

risk of recidivism. The trial court considered the presentence investigation report that

indicated a high risk of reoffending.

       {¶11} In addition, the record reflects that before imposing sentence, the trial court

considered Clayton’s statement that he was sorry for anything “that might have happened

in the past” and defense counsel’s urging that the trial court consider a lower-end

sentence. Further, the state informed the trial court that had the case proceeded to trial,

the evidence would have shown that although the victim had not reported the rapes to the

authorities until years later, she repeatedly reported it to family members and mental

health professionals, but none came forward.

       {¶12} Finally, the state read into the record a letter from the victim directed at

Clayton, detailing the hurt and fear that Clayton’s actions had caused her over the past 11

years. The victim indicated that Clayton’s relationship with her as a “father figure”

magnified the feelings of hurt and distrust. The victim urged the trial court to impose a

maximum sentence, so that Clayton could reflect on the pain he had caused.
         {¶13} Upon our review of the record, we find no basis to conclude that the trial

court failed to consider the statutory criteria contained in R.C. 2929.11 and 2929.12, as

well as any mitigating factors presented.     Accordingly, we overrule the second assigned

error.

                            Consideration of Dismissed Charges

         {¶14} Because of their common bases in law and fact, we will address the first and

third assigned errors together. Within these assigned errors, Clayton argues the trial

court erred, when imposing the sentence, by infusing a belief that he had committed other

dismissed crimes and considered evidence that would have been presented to a jury in the

event of a trial.

         {¶15} The consideration of criminal conduct for which no criminal conviction has

resulted may constitute error on the part of the trial court in some instances. See State v.

Longo, 4 Ohio App.3d 136, 141, 446 N.E.2d 1145 (8th Dist.1982). But see State v. Dari,

8th Dist. Cuyahoga No. 99367, 2013-Ohio-4189, ¶ 17 (discussion of the ability of the trial

court to consider facts and dismissed charges in the indictment when imposing a sentence

that resulted from a plea bargain).

         {¶16} However, “Ohio law is clear that ‘[u]nindicted acts or not guilty verdicts can

be considered in sentencing without resulting in error when they are not the sole basis for

the sentence.’”State v. Corbett, 8th Dist. Cuyahoga No. 99649, 2013-Ohio-4478, quoting

State v. Gray, 8th Dist. Cuyahoga No. 91806, 2009-Ohio-4200, ¶ 13. See also State v.

Cooper, 8th Dist. Cuyahoga No. 93308, 2010-Ohio-1983, ¶ 15 (“a defendant’s uncharged
yet undisputed conduct may be considered in sentencing without resulting in error when it

is not the sole basis for the sentence”).

       {¶17} In the instant case, Clayton argues that the trial court infused his belief of

the validity of dismissed charges when it stated: “the victim was five years to seven years

old. It’s my understanding that there were 25 to 30 times sexual conduct with this child

using your penis and your finger over a two-year period.” Tr. 36. Clayton also takes

issue with the prosecutor’s discussion of what would have been presented if the case had

gone to trial.

       {¶18} However, as discussed in the previous assigned error, the trial court gave

full consideration to the statutory factors outlined in R.C. 2929.11 and 2929.12. In

addition, the trial court is permitted to consider the original charge when sentencing.

State v. Peal, 8th Dist. Cuyahoga No. 97644, 2012-Ohio-6007, ¶ 18. Further, when the

defendant’s convictions result from a plea bargain, the plea bargain “does not preclude

the trial court’s consideration of the underlying facts”in determining the appropriate

sentence to impose.      State v. Frankos, 8th Dist. Cuyahoga No. 78072, 2001 Ohio App.

LEXIS 3712 (Aug. 23, 2001). This approach has been endorsed by other appellate

courts. See State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶

17 (2d Dist.); State v. Namack, 7th Dist. Belmont No. 01 BA 46, 2002-Ohio-5187; State

v. Hanson, 6th Dist. Lucas No. L-01-1217, 2002-Ohio-1522.

       {¶19} Here, the trial court’s statements in this case indicate that it simply took into

consideration the serious nature of the offenses to which Clayton pleaded guilty. In our
view, the decision to do so does not constitute impropriety. The record provides an

adequate basis to conclude that the sentence the trial court imposed was not solely based

on the unproven conduct and therefore not contrary to law. Accordingly, we overrule the

first and third assigned errors.

       {¶20} Judgment affirmed

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution. The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
