[Cite as State v. Silva, 2016-Ohio-633.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-15-07

        v.

CHRISTOPHER D. SILVA,                                     OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Henry County Common Pleas Court
                             Trial Court No. 14 CR 0098

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision:   February 22, 2016




APPEARANCES:

        Billy D. Harmon for Appellant
Case No. 7-15-07


SHAW, P.J.

        {¶1} Defendant-appellant Christopher D. Silva (“Silva”) brings this appeal

from the April 1, 2015 judgment of the Henry County Common Pleas Court

sentencing Silva to eight years in prison after Silva pled guilty to, and was

convicted of, Felonious Assault in violation of R.C. 2903.11(A)(1), a felony of the

second degree.

                           Relevant Facts and Procedural History

        {¶2} On October 17, 2014, Silva was indicted for Aggravated Burglary in

violation of R.C. 2911.11(A)(1), a felony of the first degree, and Felonious

Assault in violation of R.C. 2903.11(A)(1), a felony of the second degree. Silva

originally pled not guilty to the charges.

        {¶3} On March 2, 2015, Silva and the State entered into a written

negotiated plea agreement wherein Silva agreed to plead guilty to Felonious

Assault as indicted and in exchange the State agreed to dismiss the Aggravated

Burglary charge against Silva at sentencing. (Doc. No. 26). In addition, the

written plea agreement indicated that the State would recommend a maximum

eight year prison term on the Felonious Assault charge.1 (Id.)

        {¶4} On March 2, 2015, the trial court held a change-of-plea hearing. At

the change-of-plea hearing Silva signed the written plea agreement in open court


1
 While the State’s recommended sentence was stated in the plea agreement, it was specifically noted at the
plea hearing that the State’s recommendation was not a joint sentencing recommendation.

                                                   -2-
Case No. 7-15-07


and the trial court engaged in a Crim.R. 11 colloquy with Silva.                           Silva

demonstrated that he was knowingly, intelligently, and voluntarily entering his

plea, and he pled guilty to Felonious Assault in violation of R.C. 2903.11(A)(1), a

felony of the second degree. That plea was ultimately accepted and Silva was

found guilty.

        {¶5} On March 31, 2015, the case proceeded to sentencing. At sentencing

the State requested that Silva be sentenced to a maximum eight year prison term.

The State argued that Silva’s criminal history, the facts of this case, and the

seriousness of the physical harm to the victim warranted a maximum sentence.

Silva’s counsel argued for a minimum sentence or a sentence in the lower half of

the range for second degree felonies. Silva then made a statement on his own

behalf, taking responsibility for his actions and stating that he was sorry for what

he had done.

        {¶6} After hearing the arguments of the parties, the trial court ultimately

sentenced Silva to serve eight years in prison.2 The trial court also notified Silva

that he would be subject to five years of post-release control.

        {¶7} A judgment entry memorializing Silva’s sentence was filed April 1,

2015.     It is from this judgment that Silva appeals, asserting the following

assignment of error for our review.


2
  The Aggravated Burglary charge was also dismissed by the trial court at sentencing, per the plea
agreement.

                                               -3-
Case No. 7-15-07


                    ASSIGNMENT OF ERROR
       THE   SENTENCE    IMPOSED   UPON DEFENDANT-
       APPELLANT WAS CONTRARY TO LAW AND AN ABUSE
       OF DISCRETION.

       {¶8} In his assignment of error, Silva argues that the trial court erred in

sentencing him to a maximum prison term and that the trial court erred by stating

that he would be subject to five years of post-release control.

                                 Maximum Sentence

       {¶9} “Trial courts have full discretion to impose any sentence within the

statutory range.” State v. Noble, 3d Dist. No. 8-14-06, 2014-Ohio-5485, ¶ 9 citing

State v. Saldana, 3d Dist. Putnam No. 12–12–09, 2013–Ohio–1122, ¶ 20. “A trial

court’s sentence will not be disturbed on appeal absent a defendant’s showing by

clear and convincing evidence that the sentence is unsupported by the record or

otherwise contrary to law.” State v. Barrera, 3d Dist. Putnam No. 12–12–01,

2012–Ohio–3196, ¶ 20.        Clear and convincing evidence is that “which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph

three of the syllabus.    An appellate court should not, however, substitute its

judgment for that of the trial court because the trial court is in a better position to

judge the defendant’s chances of recidivism and determine the effects of the crime

on the victim. State v. Watkins, 3d Dist. Auglaize No. 02–08, 2004–Ohio–4809, ¶

16.

                                         -4-
Case No. 7-15-07


       {¶10} Revised Code Chapter 2929 governs sentencing.           Revised Code

2929.11 provides, in pertinent part, that the “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.” R.C. 2929.11(A). In advancing these purposes,

sentencing courts are instructed to “consider the need for incapacitating the

offender, deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or both.”

Id.

       {¶11} Meanwhile, R.C. 2929.11(B) states that felony sentences must be

“commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim” and also be consistent with sentences

imposed in similar cases. In accordance with these principles, the trial court must

consider the factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of

the offender’s conduct and the likelihood of the offender’s recidivism.        R.C.

2929.12(A). However, the trial court is not required to make specific findings of

its consideration of the factors. Noble, supra, at ¶ 10 citing State v. Kincade, 3d

Dist. Wyandot No. 16–09–20, 2010–Ohio–1497, ¶ 8.




                                        -5-
Case No. 7-15-07


      {¶12} In this case, at the sentencing hearing the trial court stated that it had

considered the statutes related to sentencing, specifically citing R.C. 2929.11 and

R.C. 2929.12. (Mar. 31, 2015, Tr. at 11). The trial court also stated that it

considered the pre-sentence investigation, and that it had reviewed that pre-

sentence investigation multiple times. The pre-sentence investigation contained

Silva’s criminal history, part of which was also narrated by the prosecutor at the

beginning of the sentencing hearing. Silva had been previously convicted of

Aggravated Burglary and had been sentenced to serve five years in prison for that

conviction. In addition, Silva had multiple prior domestic violence convictions,

some of which had been reduced from felonies to misdemeanors.

      {¶13} The pre-sentence investigation also elaborated on the harm suffered

by the victim and the facts giving rise to the charge, which the prosecutor

mentioned at sentencing as well.        The pre-sentence investigation contained

information that when the victim came home from work one day Silva was

waiting for her and he kicked her in the chest, knocking her down. Silva “then

dragged her to the couch in the living room by her hair[,] * * * [and] struck her

numerous times on her face and body with a closed fist.” Then, Silva “tied her up

with duct tape so she could not move and put her on the couch, laying [sic] down.

* * * [Silva] then picked up a large knife from the kitchen and told her he was

going to ‘Carve snitch on [her] forehead[.]’ ” The victim also indicated that Silva


                                        -6-
Case No. 7-15-07


threatened multiple times to cut and kill her. As a result of the incident the victim

had five broken ribs, multiple lacerations and bruises, she lost a tooth, and she had

a large mass swelling on her eye. Based upon these facts and Silva’s criminal

history the trial court ordered Silva to serve a maximum eight year prison term.

       {¶14} On appeal Silva does not argue that his sentence was contrary to law

as it fell within the appropriate statutory range. Rather, he argues that the trial

court abused its discretion by ordering him to serve a maximum prison term. Silva

does not cite anything specific to establish that the trial court’s decision was

erroneous.      He merely summarily states that the trial court’s decision was

unreasonable, arbitrary, and unconscionable.

       {¶15} Despite Silva’s arguments, we cannot find the trial court’s sentence

improper. The trial court clearly stated that it had considered the appropriate

statutory authority and it stated that it had considered Silva’s criminal history. In

addition, the trial court indicated that it considered the facts of the situation, given

that it stated that it had reviewed the pre-sentence investigation multiple times. As

Silva did have a significant criminal history, including a history of violent

offenses, and as Silva did severely injure the victim, restrain her, and threaten to

kill her, we cannot find that the trial court erred in ordering a maximum sentence

in this case.




                                          -7-
Case No. 7-15-07


                                             Post-Release Control

            {¶16} Silva also claims in his brief to this Court that the trial court erred by

notifying Silva that he was subject to a period of five years of post-release control.

Silva contends that pursuant to R.C. 2967.28(B), he was only subject to three

years of post-release control.

            {¶17} Revised Code 2967.28(B)(2) does clearly state that, “[f]or a felony of

the second degree that is not a felony sex offense, [a defendant is subject to] three

years [of post-release control].” See also State v. Taylor, 2d Dist. Montgomery

No. 26500, 2015-Ohio-3510, ¶ 13. There is no argument made that the Felonious

Assault Silva was convicted of was anything other than a second degree felony

and there is no argument that it was a sex offense. Therefore it would appear that

the trial court’s statement that Silva was subject to five years of post-release

control was erroneous.3

            {¶18} Based on the record and the statutory authority we are compelled to

sustain Silva’s assignment of error only to the extent that he must be properly

notified of post-release control. The remaining portion of his assignment of error,

however, is overruled.

            {¶19} For the foregoing reasons the judgment of the Henry County

Common Pleas Court is Affirmed in Part and Reversed in Part. This cause is



3
    Notably, the State does not contest this issue and in fact failed to file a brief in this case.

                                                          -8-
Case No. 7-15-07


remanded to the trial court for limited resentencing proceedings consistent with

this opinion.

                                                    Judgment Affirmed in Part,
                                                         Reversed in Part and
                                                             Cause Remanded

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




                                      -9-
