[Cite as State v. Haddon, 2014-Ohio-818.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99686



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   DWAYNE HADDON
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-525980

        BEFORE: Boyle, A.J., Jones, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                      March 6, 2014
ATTORNEY FOR APPELLANT

Erin R. Flanagan
1370 Ontario Street
2000 Standard Building
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian R. Radigan
        Mary H. McGrath
        Amy Venesile
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

       {¶1} After this court granted a motion for delayed appeal to defendant-appellant,

Dwayne Haddon, he appeals from a trial court judgment sentencing him on April 14,

2010, to six years in prison for violating the terms of his community control sanctions.

He raises one assignment of error for our review:

       I. The trial court erred when it imposed sentence at the April 14, 2010
       probation violation hearing without consideration of the Ohio Revised
       Code’s Section 2929 factors in derogation of statutory law and the
       appellant’s due process rights.

       {¶2} Finding no merit to his appeal, we affirm.

                                    Procedural History

       {¶3} Haddon was indicted on two counts of kidnapping and one count of

felonious assault in July 2009. In September of that same year, he pleaded guilty to

felonious assault, a felony of the second degree. The kidnapping charges were nolled by

the trial court.

       {¶4} The trial court sentenced Haddon in October 2009 to five years of

community control sanctions. As part of Haddon’s community control sanctions, the

trial court ordered that Haddon complete an inpatient drug treatment program. The trial

court also told Haddon to stay away from the victim. At his sentencing hearing, the trial

court warned Haddon that if he violated the terms of his community control sanctions,

that it would sentence him to eight years in prison.

       {¶5} On April 14, 2010, the trial court held a probation violation hearing.
Haddon’s probation officer explained to the court that Haddon tested positive for cocaine

on March 2, 2010. The probation officer also reminded the court that he and Haddon

were before the court “on February 3, 2010 on a violation hearing after [Haddon] had

complications with his inpatient treatment, and at that time, [the trial court] continued

him.” The probation officer further explained that at that time, the victim had alleged

that Haddon was harassing her at her place of employment when he obtained weekend

passes from the inpatient treatment program. As a result of the harassment, Haddon was

kicked out of his inpatient treatment program.

       {¶6} At his April 14, 2010 probation violation hearing, Haddon requested the

trial court to continue his probation a second time. Haddon explained that he had found

new employment where he would not have to see the victim (it appears that they had

worked together, although the record is not entirely clear) and said that he had been

talking to his pastor to deal with his depression and addictions.

       {¶7} The trial court stated:

       We’ve gone through this. I attempted to obtain treatment for you. That
       didn’t work out. You’ve been on probation in the past in other courts
       repeatedly. You violated repeatedly. You’ve been to prison. And
       irrespective of your record, based upon your need for treatment, I made it
       available to you, and to no avail.

       {¶8} The trial court found that Haddon violated the conditions of his community

control supervision, and sentenced him to six years in prison. It is from this judgment

that Haddon appeals.

                                 R.C. 2929.11 and 2929.12
      {¶9} Haddon argues that the trial court failed to consider the statutory purposes

and principles of sentencing and the recidivism and seriousness factors set forth in R.C.

2929.11 and 2929.12.

      {¶10} We do not review felony sentences under an abuse-of-discretion standard.

R.C. 2953.08(G)(2). Rather, we may

      increase, reduce, or otherwise modify a sentence * * * or may vacate the
      sentence and remand the matter to the sentencing court for resentencing if
      we determine that the record clearly and convincingly * * * does not
      support the sentencing court’s findings under [various provisions]; [or]
      [t]hat the sentence is otherwise contrary to law.

Id.

      {¶11} The court’s only guide in this case was the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the serious and recidivism factors set forth in

R.C. 2929.12. R.C. 2929.11(A) provides that

      [t]he overriding purposes of felony sentencing are to protect the public from
      future crime by the offender and others and to punish the offender using the
      minimum sanctions that the court determines accomplish those purposes
      without imposing an unnecessary burden on state or local government
      resources.

      {¶12} Under R.C. 2929.12(A), trial courts must consider a nonexhaustive list of

factors set forth in R.C. 2929.12(B), (C), (D), and (E), including the seriousness of the

defendant’s conduct, the likelihood of     recidivism, and “any other factors that are

relevant to achieving those purposes and principles of sentencing.”

      {¶13} Haddon argues that the record is “absolutely devoid of any consideration

whatsoever” of R.C. 2929.11 and 2929.12. For this reason, he claims that his sentence is
void, and we should therefore vacate his sentence.

      {¶14} There is still no “mandate,” however, for the sentencing court to engage in

any factual findings under R.C. 2929.11 or 2929.12. State v. Jones, 12th Dist. Butler No.

CA2012-03-049, 2013-Ohio-150, ¶ 49, citing State v. Rose, 12th Dist. Butler No.

CA2011-11-214, 2012-Ohio-5607, ¶ 78; State v. Putnam, 11th Dist. Lake No.

2012-L-026, 2012-Ohio-4891, ¶ 9. Instead, the “trial court still has the discretion to

determine whether the sentence satisfies the overriding purpose of Ohio’s sentencing

structure.” Jones at ¶ 49. Furthermore, “[w]e can presume from a silent record that the

trial court considered the appropriate factors unless the defendant affirmatively shows

that the court has failed to do so.” State v. Bohannon, 1st Dist. Hamilton No. C-130014,

2013-Ohio-5101, ¶ 7; State v. Parsons, 3d Dist. Auglaize No. 2-10-27, 2011-Ohio-168, ¶

15.

      {¶15} After review, we find that Haddon has not affirmatively shown that the trial

court failed to consider the principles and purpose of felony sentencing in R.C. 2929.11

and the seriousness and recidivism factors in R.C. 2929.12.         At Haddon’s original

sentencing hearing, the trial court warned him that it would sentence him to eight years in

prison if he violated the terms of his community control sanctions. It only sentenced him

to six years for violating. Moreover, at his probation violation hearing, the trial court

noted how this was not the first time Haddon had violated the terms of his probation, nor

was it the first time that he had been sent to prison. Indeed, the trial court noted how

Haddon had “repeatedly” violated his probation in the past.
      {¶16} Accordingly, we overrule Haddon’s assignment of error.

      {¶17} Judgment affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas 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.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
MARY EILEEN KILBANE, J., CONCUR
