[Cite as State v. Morris, 2013-Ohio-1736.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 6-12-17

        v.

ROBERT LEE MORRIS,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                           Trial Court No. CRI 20102166

                                      Judgment Affirmed

                             Date of Decision: April 29, 2013




APPEARANCES:

        Nicole M. Winget for Appellant

        Bradford W. Bailey and Destiny R. Hudson for Appellee
Case No. 6-12-17


SHAW, J.

       {¶1} Defendant-appellant Robert Lee Morris (“Morris”) appeals the

October 5, 2012, judgment of the Hardin County Common Pleas Court revoking

Morris’s community control and sentencing Morris to 6 years and 11 months in

prison. For the reasons that follow, we affirm the judgment of the trial court.

       {¶2} On January 11, 2011, Morris pled guilty to one count of Burglary, in

violation of R.C. 2911.12(A)(2), a felony of the second degree, one count of

Felonious Assault, in violation of R.C. 2903.11(A)(2), a felony of the second

degree, and one count of Theft of Credit Cards in violation of R.C. 2913.02(A)(1),

(B)(2), a felony of the fifth degree.

       {¶3} Subsequently, the State and Morris jointly recommended a sentence,

which the court adopted. (Doc. 45). As part of this sentence, Morris was placed

on community control for a period of 3 years with the special condition that he

successfully complete treatment at the W.O.R.T.H. center. (Id.) Morris was also

informed that in the event he violated his community control he would face a

definite prison term of 3 years for the Burglary conviction, a definite prison term

of 3 years for the Felonious Assault conviction, and a definite prison term of 11

months for the Theft of Credit Cards conviction, all to be served consecutively for

an aggregate prison term of 6 years and 11 months. (Id.) An entry reflecting this

sentence was filed March 17, 2011. (Id.)


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       {¶4} On September 21, 2012, the State filed a Motion for Revocation of

Supervision. (Doc. 53). On October 5, 2012, a hearing was held on the motion.

At the hearing, Morris admitted to multiple violations of his community control.

Those violations included that Morris was in possession of drug paraphernalia,

that Morris failed to report to his supervising officer, and that Morris used cocaine

in violation of the express provisions of his community control. (Tr. at 4-5).

Based upon Morris’s admissions and the facts, the trial court found Morris had

violated the terms of his community control and that Morris was no longer

amenable to community control. The court then imposed the reserved 6 year and

11 month prison sentence. (Doc. 62). An entry reflecting this sentence was filed

October 5, 2012. (Id.)

       {¶5} It is from this judgment that Morris appeals, asserting the following

assignment of error for our review.

                   ASSIGNMENT OF ERROR
       THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION
       WHEN IT FAILED TO CONSIDER ANY MITIGATING
       FACTORS PRIOR TO ISSUING A MAXIMUM SENTENCE.

       {¶6} In his assignment of error, Morris argues that the trial court abused its

discretion when the court “failed to consider any mitigating factors prior to issuing

a maximum sentence.” Specifically, Morris argues that only negative factors were

considered during Morris’s sentencing and that no mitigating factors were taken

into account by the sentencing court. Morris contends that the trial court “took the

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time to outline the factors it considered from [R.C.] 2929.12(B), but did not

outline a single factor from [R.C.] 2929.12(C).” (Appt. Br. at 4).

        {¶7} A reviewing court must conduct a meaningful review of the trial

court's imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶ 8 citing State v. Carter, 11th Dist. No.2003–P–0007, 2004-Ohio-

1181.    In particular, R.C. 2953.08(G)(2) provides the following regarding an

appellate court’s review of a sentence on appeal.

        (2) The court hearing an appeal * * * shall review the record,
        including the findings underlying the sentence or modification
        given by the sentencing court.

        The appellate court may increase, reduce, or otherwise modify a
        sentence that is appealed under this section or may vacate the
        sentence and remand the matter to the sentencing court for
        resentencing. The appellate court's standard for review is not
        whether the sentencing court abused its discretion. The appellate
        court may take any action authorized by this division if it clearly
        and convincingly finds either of the following:

        (a) That the record does not support the sentencing court's
        findings under division (B) or (D) or (C)(4) of section 2929.14, or
        division (I) of section 2929.20 of the Revised Code, whichever, if
        any, is relevant;

        (b) That the sentence is otherwise contrary to law.

        {¶8} Furthermore, a sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing, which are

to protect the public from future crimes by the offender and others and to punish

the offender, and shall be commensurate with and not demeaning to the

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seriousness of the offender’s conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders. See R.C. 2929.11(A),(B).

      {¶9} At the outset we would note that despite the characterization of

Morris’s assignment of error, Morris was not sentenced to a “maximum sentence.”

Morris was facing up to 8 years in prison on each of the Burglary and Felonious

Assault charges, and a possible 12 month prison term on the Theft of Credit Cards

charge. However, ultimately Morris was ordered to serve 3 years in prison on

each of the former two charges and 11 months in prison on the latter charge, all to

be served consecutively for an aggregate prison term of 6 years and 11 months.

Therefore, despite his characterization, Morris did not receive a maximum

sentence.

      {¶10} Next, we would note that Morris is complaining about a “jointly

recommended sentence.” The record reflects that the sentence of community

control and the reserved consecutive prison terms to be imposed upon Morris in

the event of a violation of his community control were part of a jointly

recommended sentence by the State and Morris. (Doc. 45).

      {¶11} “Pursuant to R.C. 2953.08, a sentence is not subject to review when

the sentence is (1) authorized by law; (2) jointly recommended by the parties; and

(3) imposed by the sentencing judge.” State v. Kryling, 3d Dist. 5-10-25, 2011-


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Case No. 6-12-17


Ohio-166, ¶ 7, citing State v. Giesey, 3d Dist. No. 5-06-31, 2006-Ohio-6851, ¶ 8,

citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, ¶ 8. In discussing

jointly recommended sentences, the Ohio Supreme Court has recognized that

“[t]he General Assembly intended a jointly agreed-upon sentence to be protected

from review precisely because the parties agreed that the sentence is appropriate.

Once a defendant stipulates that a particular sentence is justified, the sentencing

judge need not independently justify the sentence.”          Porterfield, at ¶ 25.

Therefore, it is not necessary for us to address Morris’s argument as it pertains to

the lawfulness of his sentence, because the court's imposition of non-minimum,

consecutive sentences in this case was done as part of a joint sentencing

recommendation and is not subject to review. State v. Townsend, 5th Dist. No. 09-

CA-42, 2009-Ohio-5664, ¶ 31; State v. Wyche, 10th Dist. No. 06AP-1047, 2007-

Ohio-2784, at ¶ 6; State v. Dye, 4th Dist. No. 06CA24, 2007-Ohio-3934.

       {¶12} However, even if Morris’s argument was subject to review, R.C.

2929.12(C)(4) only requires that the trial court consider any potential mitigating

factors. See R.C. 2929.12(C)(4). The statute does not require the trial court to

make findings on the record regarding mitigating factors. Nevertheless, when

originally sentencing Morris, the trial court stated that it had “considered the

record, oral statements, any victim impact statements, joint sentencing

recommendation of the parties, the pre-sentence investigation report prepared, as


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well as the principles and purposes of sentencing under Ohio Revised Code

Section 2929.11, and has balanced the seriousness and recidivism factors in Ohio

Revised Code Section 2929.12.”1 (Doc. 45). Thus there is nothing to suggest that

the court did not consider mitigating factors at the time of the original sentencing.

        {¶13} For the foregoing reasons, Morris’s assignment of error is overruled

and the judgment of the Hardin County Common Pleas Court is affirmed.

                                                                            Judgment Affirmed

PRESTON, P.J., concurs.

ROGERS, J., concurs in Judgment Only.

/jlr




1
  In reviewing the record, we would note that Morris’s pre-sentencing investigation report stated the
opinion that Morris was “not amenable to an available Community Control sanction.” Nevertheless, the
court followed the parties’ joint sentencing recommendation and placed Morris on community control.


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