[Cite as State v. Graft, 2018-Ohio-2625.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




 STATE OF OHIO,                                   :

        Plaintiff-Appellee,                       :     CASE NOS. CA2017-08-122
                                                                  CA2017-08-123
                                                  :
     - vs -                                                     OPINION
                                                  :              7/2/2018

 JOSHUA GRAFT,                                    :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2016-11-1623



Michael T. Gmoser, Butler County Prosecutor, Lina N. Alkamhawi, Government Services
Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for plaintiff-appellee

Charles M. Conliff, 5145 Pleasant Avenue - Suite 18, P. O. Box 18424, Fairfield, OH 45018-
0424, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Joshua Graft, appeals from the decision of the Butler

County Court of Common Pleas sentencing him to serve a total of 36 months in prison after

he pled guilty to two counts of nonsupport of dependents, both fourth-degree felonies. For

the reasons outlined below, we affirm.

        {¶ 2} On November 9 and December 7, 2016, the Butler County Grand Jury
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returned two indictments charging Graft with a total of four counts of nonsupport of

dependents, all fourth-degree felonies, after it was alleged Graft had accumulated child

support arrears totaling more than $50,000. After entering a not guilty plea, it is undisputed

Graft failed to appear before the trial court on two separate occasions, each time resulting

in a capias being issued for his arrest. It is also undisputed that Graft had previously been

convicted of nonsupport of dependents in both 2011 and 2012. As a result of his previous

convictions, Graft was placed on community control, which he twice violated, ultimately

resulting in him serving one year in prison.

       {¶ 3} On July 13, 2017, Graft plead guilty to two fourth-degree felony counts of

nonsupport of dependents in exchange for the other two counts being dismissed. After

conducting the necessary Crim.R. 11 plea colloquy, the trial court accepted Graft's guilty

plea. Approximately one month later, the trial court held a sentencing hearing, wherein the

trial court specifically stated that it had "considered the purposes and principles of

sentencing" and "the weight of the recidivism and the seriousness factors." The trial court

also noted that it had reviewed Graft's presentence investigation report and noted "a lot of

supervision history," including the above noted community control violations and resulting

one-year prison term.    Specifically, as the trial court stated, "[a]nd those cases track

together and you see where [Graft] made zero progress." The trial court then stated:

              So all that is a long, roundabout way of saying having
              considered the purposes and principles of sentencing and
              having weighed the recidivism and the seriousness factors,
              [Graft] is not amenable to available community control
              sanctions.

       {¶ 4} Over Graft's objection, the trial court then sentenced Graft to serve a total of

36 months in prison, the maximum prison term allowed by law when sentencing on two




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fourth-degree felonies.1 The trial court also notified Graft that he would be subject to an

optional three-year postrelease control term. The trial court then stated:

               It's very seldom the Court would do something like this, but Mr.
               Graft is – it looks like he's done his best over the course of close
               to a decade or more of just absolutely thumbing his nose to any
               rules or requirements or laws of our community of his obligation
               to support the children he's brought into this world to the justice
               – well I guess I should say in the court system. Failing to show
               up to make his court appearances. As far as this court is
               concerned there is nothing left for Mr. Graft. He can't respect
               the law and the rules of society and the community then he
               needs to be housed in prison for as long as this Court can house
               him in prison.

       {¶ 5} On August 25, 2017, the trial court issued two judgment of conviction entries

resulting from Graft's convictions, both of which specifically stated that the trial court had

considered the principles and purposes of sentencing under R.C. 2929.11 and balanced

the seriousness and recidivism factors of R.C. 2929.12 prior to issuing its sentencing

decision. Graft now appeals from the trial court's decision sentencing him to serve a total

of 36 months in prison, raising the following single assignment of error for review.

       {¶ 6} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY

IMPOSING A PRISON SENTENCE.

       {¶ 7} In his single assignment of error, Graft argues the trial court erred by

sentencing him to serve a 36-month prison term, the maximum sentence permitted by law

when sentencing on two fourth-degree felonies, rather than sentencing him to community

control. We disagree.

       {¶ 8} As with all felony sentences, we review the trial court's sentencing decision

under the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, this court may modify or vacate


1. Pursuant to R.C. 2929.14(A)(4), a fourth-degree felony carries a maximum 18-month prison term.
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the trial court's sentencing decision only if, by clear and convincing evidence, "the record

does not support the trial court's findings under relevant statutes or that the sentence is

otherwise contrary to law." State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-

Ohio-4921, ¶ 7. A sentence is not clearly and convincingly contrary to law where the trial

court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within

the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100,

2016-Ohio-2890, ¶ 8. This court may therefore "increase, reduce, or otherwise modify a

sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law

or (2) unsupported by the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-

2970, ¶ 1, citing Marcum at ¶ 7.

       {¶ 9} After a full and thorough review of the record, we find no error in the trial

court's sentencing decision for the record firmly establishes Graft's 36-month prison

sentence is not contrary to law or unsupported by the record. As noted above, prior to the

charges levied in this case, Graft had been convicted of nonsupport of dependents in both

2011 and 2012. As a result of these convictions, Graft was placed on community control,

which he twice violated, ultimately resulting in him serving one year in prison. Thereafter,

while the charges in this case were pending, Graft failed to appear before the trial court on

two separate occasions, each time resulting in a capias being issued for his arrest. As the

trial court stated, and we agree, Graft has "done his best over the course of close to a

decade or more of just absolutely thumbing his nose to any rules or requirements or laws

of our community of his obligation to support the children he's brought into this world[.]" We

also agree with the trial court's finding "[Graft] can't respect the law and the rules of society

and the community then he needs to be housed in prison for as long as this Court can house


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him in prison."

       {¶ 10} Graft nevertheless argues the record does not support the trial court's

sentencing decision because the record contains "no facts" indicating the trial court

considered the costs of sending him to prison in comparison with the costs associated with

a Community Based Correctional Facility, nor "any statistics" showing the rate of recidivism

for those offenders who are sentenced to prison as opposed to some alternative program

such as the Community Correction Center or the Substance Abuse Mental Illness court

program. Therefore, according to Graft, this matter must be reversed and remanded to the

trial court for it to consider the purposes and principles of sentencing, "and the financial

burden created by the sanctions imposed by the trial court."

       {¶ 11} However, while it may be true the record does not contain reference to any

such facts and statistics, it is well-established that the trial court was not required to make

any specific findings to support its decision to sentence Graft to a total of 36 months in

prison, the maximum sentence permitted by law when sentencing on two fourth-degree

felonies. State v. Moore, 12th Dist. Warren No. CA2017-07-110, 2018-Ohio-1778, ¶ 34 (a

trial court is not required to make any specific findings to support its imposition of the

maximum prison sentence). Moreover, when issuing its sentencing decision, "a trial court

is not required to consider each sentencing factor, but rather to exercise its discretion in

determining whether the sentence satisfies the overriding purpose of Ohio's sentencing

structure." Id. at ¶ 35, citing State v. Littleton, 12th Dist. Butler No. CA2016-03-060, 2016-

Ohio-7544, ¶ 12. That is exactly what the trial court did here. "The fact that the trial court

did not expressly cite to R.C. 2929.11 and 2929.12 during the sentencing hearing is

immaterial, considering it specifically cited to both statutes within its sentencing entry."

State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 11. It is therefore


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apparent the trial court properly considered the necessary sentencing statutes.

       {¶ 12} In light of the foregoing, because the trial court's decision to sentence Graft to

serve a total of 36 months in prison, the maximum sentence permitted by law when

sentencing on two fourth-degree felonies, is not contrary to law or unsupported by the

record, Graft's single assignment of error lacks merit and is overruled.

       {¶ 13} Judgment affirmed.


       RINGLAND and PIPER, JJ., concur.




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