[Cite as State v. Brown, 2014-Ohio-4381.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100874




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    CHARLES BROWN
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-13-574953-A


        BEFORE: Celebrezze, P.J., Rocco, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: October 2, 2014
ATTORNEY FOR APPELLANT

Christopher M. Kelley
75 Public Square
Suite 700
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian M. McDonough
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Defendant-appellant, Charles Brown, appeals from his two-year term of

imprisonment. After a careful review of the record and relevant case law, we affirm

appellant’s sentence.

                                  I. Procedural History

       {¶2} On June 4, 2013, appellant was indicted and charged with three counts of

rape in violation of R.C. 2907.02(A)(2); two counts of kidnapping in violation of R.C.

2905.01(A)(4); and one count of attempted rape in violation of R.C. 2923.02 and

2907.02(A)(2). The indictment stemmed from events that took place on June 5, 1993.

On June 7, 2013, he entered a plea of not guilty to all charges.

       {¶3} On November 14, 2013, appellant and the state reached a plea agreement.

Appellant withdrew his formerly entered plea of not guilty and pled guilty to an amended

Count 1, sexual battery, in violation of R.C. 2907.03(A)(1), a felony of the third degree.

The remaining counts were nolled.

       {¶4} On December 17, 2013, appellant received the maximum sentence of two

years on his sexual battery conviction. See former R.C. 2929.11(D)(1). Appellant now

brings this timely appeal raising one assignment of error for review.

                                   II. Law and Analysis

       {¶5} In his sole assignment of error, appellant argues that the trial court’s

imposition of a maximum sentence of two years is clearly and convincingly contrary to

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

State v. Kopilchak, 8th Dist. Cuyahoga No. 98984, 2013-Ohio-5016, ¶ 10, citing R.C.

2953.08(G)(2).    Rather, this court “shall review the record, including the findings

underlying the sentence or modification given by the sentencing court” and 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.

       {¶7} A sentence is not clearly and convincingly contrary to law “where the trial

court considers the purposes and principles of sentencing under R.C. 2929.11 as well as

the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease

control, and sentences a defendant within the permissible statutory range.” State v. A.H.,

8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.

       {¶8} 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.

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

factors, 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.”

      {¶10} We note that while the court must consider the principles and purposes

outlined above, it is not required to use particular language or engage in any specific

findings of its consideration of these factors under R.C. 2929.11 or 2929.12. Kopilchak,

8th Dist. Cuyahoga No. 98984, 2013-Ohio-5016, at ¶ 14. In fact, consideration of the

appropriate factors set forth in R.C. 2929.11 and 2929.12 can be presumed unless the

defendant affirmatively shows to the contrary. State v. Jones, 8th Dist. Cuyahoga No.

99759, 2014-Ohio-29, ¶ 13; State v. Clayton, 8th Dist. Cuyahoga No. 99700,

2014-Ohio-112, ¶ 7.

      {¶11} Based on the record before us, we find that appellant’s sentence is not

clearly and convincingly contrary to law. Here, the trial court imposed a sentence within

the sentencing range and adequately considered the purposes and principles of sentencing

under R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C.

2929.12. In doing so, the court expressly stated that “the purpose and principles of

felony sentencing are to protect the public and punish the offender.” Further, the court

considered appellant’s extensive criminal history, which included convictions for

attempted aggravated robbery, sexual battery, criminal trespass, attempted rape,

abduction, and various drug and alcohol-related offenses. The trial court then considered

the impact appellant’s actions had on the victim in this matter. It found that the victim
suffered serious psychological harm and that appellant used his relationship with the

victim to facilitate the sexual battery offense.

       {¶12} Moreover, despite appellant’s position to the contrary, the record reflects

that the trial court carefully considered the relevant mitigating factors detailed in

appellant’s Mitigation of Penalty Report, but found that the aggravating factors weighed

more heavily in favor of a maximum sentence. Specifically, the court stated:

       Based on the findings that the court has made with regard to the seriousness
       and recidivism factors, the court finds that a sentence of community control
       would demean the seriousness of this offense. And based upon this
       defendant’s history and the risk of recidivism that is detailed in the
       mitigation of penalty report, the court does find that prison is an appropriate
       sentence, and that a maximum sentence in this case is appropriate based
       upon the seriousness of the conduct and the length and nature of this
       defendant’s criminal history.

       {¶13} In light of the foregoing, we find that the trial court considered the purposes

and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism

factors listed in R.C. 2929.12, properly applied postrelease control, and sentenced

appellant within the permissible statutory range. Thus, the trial court’s imposition of a

maximum sentence is not clearly and convincingly contrary to law.

       {¶14} Appellant’s sole assignment of error is overruled.

       {¶15} Judgment affirmed.

       It is ordered that appellee recover from 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. 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR
