[Cite as State v. DiGiorgi, 2015-Ohio-5208.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :       OPINION

                 Plaintiff-Appellee,              :
                                                          CASE NO. 2014-L-131
        - vs -                                    :

FRANCESCO D. DIGIORGI,                            :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 13 CR
000864.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Aaron T. Baker, 38109 Euclid Avenue, Willoughby, OH               44094 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     In the following appeal, submitted on the briefs of the parties, appellant,

Francesco D. Digiorgi, contests the judgment entered by the Lake County Court of

Common Pleas sentencing him to ten years imprisonment. We affirm.

        {¶2}     On December 23, 2013, appellant was indicted on the following counts:

Count One, burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2),

with a firearms specification, in violation of R.C. 2941.141; Count Two, burglary, a
felony of the second degree, in violation of R.C. 2911.12(A)(2); Count Three, burglary, a

felony of the second degree, in violation of R.C. 2911.12(A)(2); Count Four, receiving

stolen property, a felony of the fourth degree, in violation of R.C. 2913.51(A); Count

Five, burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2); Count

Six, burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2); Count

Seven, burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2);

Count Eight, burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2);

Count Nine, possessing criminal tools, a felony of the fifth degree, in violation of R.C.

2923.24; Count Ten, burglary, a felony of the second degree, in violation of R.C.

2911.12(A); Count Eleven, possessing criminal tools, a felony of the fifth degree, in

violation of R.C. 2923.24; Count Twelve, possessing criminal tools, a felony of the fifth

degree, in violation of R.C. 2923.24; Count Thirteen, receiving stolen property, in

violation of R.C. 2913.51(A), a felony of the fifth degree; and Count Fourteen, receiving

stolen property, in violation of R.C. 2913.51(A), a felony of the fifth degree.

       {¶3}   Appellant pleaded not guilty, but later entered a plea of guilty to six

burglaries (Counts One, Two, Three, Five, Six, and Eight), including a one-year firearm

specification; three of the burglaries were felonies of the second degree and the

remaining three were reduced to felonies of the third degree. The remaining counts

were dismissed.      The court accepted appellant’s plea of guilty and ordered a

presentence report (“PSI”) and a drug and alcohol evaluation.

       {¶4}   The matter came on for sentencing and, after reviewing the PSI, the drug

and alcohol report, the victim impact statements, as well as considering the comments

from defense counsel and the prosecution, the trial court issued the following sentence:




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12 months for Count One; two years for Count Two; two years for Count Three; 12

months for Count Five; 12 months for Count Six; two years for Count Eight; and one

year for the firearms specification.       The court ordered the terms to be served

consecutively to one another, for an aggregate term of 10 years imprisonment. The

court further ordered restitution to all the victims of appellant’s burglaries. Appellant

now appeals and assigns the following as error:

         {¶5}   “The trial court erred by sentencing appellant to a term of ten years in

prison where its findings were not supported by the record and the trial court failed to

give careful and substantial deliberation to the relevant statutory considerations.”

         {¶6}   In reviewing felony sentences, we apply the standard of review set forth in

R.C. 2953.08(G)(2).      That section directs the appellate court “to review the record,

including the findings underlying the sentence” and to modify or vacate the sentence

“if it clearly and convincingly finds * * * (a) [t]hat the record does not support the

sentencing court’s findings under division * * * (C)(4) of section 2929.14 * * * of the

Revised Code * * * [or] (b) [t]hat the sentence is otherwise contrary to law.”

         {¶7}   Appellant does not contest the trial court’s imposition of consecutive

sentences; instead, he argues the trial court’s sentence is contrary to law because it

failed to give proper consideration to the R.C. 2929.11 and R.C. 2929.12 factors. In

particular, appellant asserts the trial court failed to give appropriate weight to certain

mitigating factors such as his drug problem and his relatively young age. We do not

agree.

         {¶8}   The Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, held that R.C. 2929.11 and R.C. 2929.12 do not mandate judicial fact-finding.




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Foster at ¶42. Rather, “[t]he court is merely to ‘consider’ the statutory factors.” Id. Thus,

in sentencing a defendant for a felony, “a court is merely required to ‘consider’ the

purposes and principles of sentencing in R.C. 2929.11 and the statutory * * * factors set

forth in R.C. 2929.12.” State v. Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-3013,

¶44. The trial court satisfies its obligation to consider the seriousness and recidivism

factors in R.C. 2929.12 by stating that it considered them. State v. Whitman, 11th Dist.

Lake No. 2011-L-131, 2012-Ohio-3025, ¶12-13.

       {¶9}   At the sentencing hearing, the trial court made the following statements on

record:

       {¶10} I’ve considered the record, the oral statements made, the victim
             impact statements, the pre-sentence report, drug and alcohol
             evaluation, my conference in chambers with counsel and probation,
             and the statements of the defendant and the defendant’s counsel.
             The court has also considered the overriding purposes of felony
             sentencing pursuant to Revised Code 2929.11 which are to protect
             the public from future crime by this offender and others similarly
             minded, and to punish this offender using the minimum sanctions
             that the Court determines accomplish the purposes without
             imposing an unnecessary burden on state or local governmental
             resources.      I have considered the need for incapacitation,
             deterrence, rehabilitation, and restitution. I’ve considered the
             separate recommendations of the parties. I have reasonably
             calculated this sentence to achieve the two overriding purposes of
             felony sentencing and to be commensurate with and not
             demeaning to the seriousness of this offender’s conduct and its
             impact on society and on the victims, and to be consistent with
             sentences for similar crimes committed by similar offenders. In
             using my discretion to determine the most effective way to comply
             with the purposes and principles of sentencing I have considered all
             relevant factors, including the seriousness and recidivism factors
             set forth in Revised Code 2929.12. The court finds that there are
             factors that make these offenses more serious. The victims
             suffered serious economic and psychological harm. There are no
             factors that make these offenses less serious. In terms of
             recidivism, the defendant has a history of criminal convictions or
             delinquency adjudications. It’s not extensive. I believe this is the
             first felony[.]



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       {¶11} He has not responded favorably to previously imposed sanctions.
             He himself is responsible for letting a drug problem, inviting a drug
             problem into his life and allowing it to affect the rest of society at
             large and these victims. The court finds no factors making the
             offenses less serious. The court determines that on the firearm
             specification that prison is mandatory for one year. And the court
             determines that prison is needed on the remaining counts to protect
             the public from future crime. The court does believe that a
             minimum sentence would demean the seriousness of the offender’s
             conduct. The court determines that consecutive sentences are
             necessary to protect the public and punish this offender.
             Consecutive sentences would not be disproportionate to his
             conduct and the danger he poses. The court determines that the
             harm was so great or unusual that a single term would not
             adequately reflect the seriousness of the conduct, and his criminal
             history shows that consecutive terms are needed to protect the
             public.

       {¶12} After placing the foregoing findings on record, the court announced its

sentencing order.

       {¶13} The trial court specifically stated, in considering the R.C. 2929.12 factors,

there were no factors that made the offenses less serious, but there were factors that

increased the seriousness of appellant’s crimes. The court recognized appellant’s drug

problem, but stressed that it was a problem which he brought upon himself. And, the

court noted, appellant allowed his drug addiction to affect his various victims as well as

society in general. The court consequently considered appellant’s heroin addiction, but

determined it was not a factor making the burglaries less serious. We discern no error

in the court’s reasoning.

       {¶14} Moreover, although the court did not specifically acknowledge appellant’s

age in open court, it did point out that appellant had some criminal history and had failed

to respond effectively to previous sanctions resulting from his past crimes. In making

these findings, one can infer that, despite appellant’s relatively young age, the court was




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recognizing the need, in the case sub judice, for a more severe punishment. Under the

circumstances, appellant’s age is in no necessary way a mitigating factor and the court

did not err in failing to make such a finding.

       {¶15} R.C. 2929.12 requires the court to consider the factors enumerated in the

statute. It does not require the court to give any particular factor additional or significant

weight.    State v. DelManzo, 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, ¶23.

Here, by stating at the sentencing hearing and in its judgment entry that it considered

the seriousness and recidivism factors in R.C. 2929.12, the trial court met its statutory

obligations. Further, by stating at the sentencing hearing that there were no factors

making the offense less serious, it follows that the court considered those factors before

concluding that none of them applied. We therefore conclude the trial court’s sentence

is not contrary to law.

       {¶16} Appellant’s assignment of error lacks merit.

       {¶17} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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