[Cite as State v. Cheek, 2018-Ohio-2807.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 8-17-54

        v.

NICHOLAS CHEEK, JR.,                                      OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR17-07-0226

                                      Judgment Affirmed

                              Date of Decision: July 16, 2018




APPEARANCES:

        Samantha L. Berkhofer for Appellant

        Sarah J. Warren for Appellee
Case No. 8-17-54


ZIMMERMAN, J.

       {¶1} Defendant-appellant, Nicholas Cheek Jr. (“Cheek”), appeals the

November 21, 2017 judgment entry of the Logan County Common Pleas Court

sentencing him to eighteen months in prison. On appeal, Cheek argues that the trial

court failed to follow the sentencing criteria set forth in Ohio Revised Code Chapter

2929. For the reasons set forth below, we affirm the judgment of the trial court.

                           Facts and Procedural History

       {¶2} On July 11, 2017, Cheek was charged with one count of domestic

violence, in violation of R.C. 2919.25(A) and (D)(3), a felony of the fourth degree.

The indictment included Cheek’s previous conviction of domestic violence on

December 10, 2003, in the Champaign County Common Pleas Court Case No.

2003CR141 (Doc 4), which enhanced his charge to a felony four.

       {¶3} At his arraignment on July 14, 2017, Cheek entered a plea of not guilty.

(Doc. 11). However, on September 21, 2017, Cheek withdrew his guilty plea at a

change of plea hearing in the trial court. At that hearing, Cheek acknowledged

executing a Petition to Enter a Guilty or No Contest Plea, which was admitted into

evidence (Exhibit A), and entered a plea of no contest. (Doc. 41). The trial court

accepted Cheek’s no contest plea, found him guilty of domestic violence, and

ordered a Pre-Sentence Investigation. (Id.)




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       {¶4} A sentencing hearing was held in the trial court on November 20, 2017,

wherein Cheek was sentenced to eighteen months in prison.            The entry was

journalized on November 21, 2017, and Cheek timely appealed, raising the

following assignment of error.

                           ASSIGNMENT OF ERROR

       WHETHER THE TRIAL COURT ERRED BY FAILING TO
       PROPERLY FOLLOW THE SENTENCING CRITERIA SET
       FORTH IN OHIO REVISED CODE 2929 AND SENTENCING
       DEFENDANT TO A MAXIMUM SENTENCE?

       {¶5} In his sole assignment of error, Cheek argues that the trial court erred

in sentencing him to the maximum prison term. Specifically, Cheek contends that

his actions did not constitute the most serious form of crime and that the trial court

failed to sufficiently indicate which factors it considered, under R.C. 2929, when

handing down the maximum sentence.

                                 Standard of Review

       {¶6} A sentence imposed by a trial court will not be disturbed absent a

showing by clear and convincing evidence that the sentence is unsupported by the

record; the procedure of the sentencing statutes was not followed or there was not a

sufficient basis for the imposition of a prison term; or that the sentence is contrary

to law. State v. Ward, 3d Dist. Crawford No. 3-17-02, 2017-Ohio-8518.




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                                       Analysis

       {¶7} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give

its reasons for imposing maximum or more than minimum sentences.’ ” State v.

Castle, 2nd Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶26, quoting State v.

King, 2nd Dist. Clark No. 2012-CA-25, ¶ 45. Nevertheless, when exercising its

sentencing discretion, a trial court must consider the statutory policies that apply to

every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38.

       {¶8} R.C. 2929.11 provides that sentences for a felony shall be guided by the

overriding purposes of felony sentencing: “to protect the public from future crime

by the offender and others and to punish the offender”. R.C. 2929.11(A). In order

to comply with those purposes and principles, R.C. 2929.12 instructs a trial court to

consider various factors set forth in the statute relating to the seriousness of the

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

2929.12(A) through (D). In addition, a trial court may consider any other factors

that are relevant to achieving the purposes and principles of sentencing. R.C.

2929.12(E). State v. Alselami, 3d Dist. Hancock No. 5-11-31, 2012-Ohio-987, ¶22.

       {¶9} In the case sub judice, Cheek was convicted of domestic violence, a

felony of the fourth degree. R.C. 2929.14(A)(4) provides “[f]or a felony of the


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fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve,

thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months”. Thus, the trial

court’s sentence (of 18 months) was within the statutory range for a felony of the

fourth degree and was not contrary to law as argued by Cheek.

       {¶10} Further, in its sentencing entry, the trial court stated that it had

considered the “principles and purposes of sentencing under Ohio Revised Code

§299.11” and the “need for deterrence, incapacitation, rehabilitation and

restitution”. (Doc. 50). The trial court, at the sentencing hearing, also stated that it

considered the information provided to it in the Pre-Sentence Investigation.

       {¶11} Nevertheless, Cheek argues that the trial court should have provided

more specific reasoning as to the sentencing factors, under chapter 2929, when

sentencing him. We disagree. Our review of the record reveals that the trial court

clearly considered R.C. 2929.11 in its sentencing of Cheek. And, even though the

trial court did not list the specific factors set forth in R.C. 2929.12 in its sentencing

entry, the record reveals that the trial court considered many factors in sentencing

Cheek, including: his extensive criminal history; his failure to respond to past

attempts at rehabilitation; and the need to protect the public from Cheek’s behavior.

       {¶12} Additionally, at the sentencing hearing, after reviewing Cheek’s

criminal history in open court, the trial court stated:

       “Ohio Risk Assessment Score. And you score a 29, which is high
       risk. Your criminal history is high. Your education, employment,

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       financial situation is high. All these are high risks. Your family
       and social support is moderate. Your neighborhood problems are
       high. Substance use is - - they say moderate, but I would say it’s
       high. Criminal attitudes are bad.

       Looking at the recidivism, physical harm caused to persons. Yes.
       Attempted to cause, threaten people. Yes. Prior convictions for
       this. Yes. Attempted to cause or made actual threat of physical
       harm. Yes. Position of trust. Yes. That - - a romantic
       relationship. Previously been to prison.

       The result of all this is that this PSI writer and I agree that you’re
       not amendable to available community control sanctions. Your
       ORAS score is very high. You - - you’ve been given repeated
       opportunities to stay away from alcohol. Even while you were in
       prison, you were continuing to be a harm to people. You were
       disciplined while in ODRC 35 times.”

(Nov. 20, 2017 Tr. Pg. 17-18). And:

       “Sentencing an individual for a felony, there’s - - the Court must
       weigh the overriding principles and purposes of felony
       sentencing, which is to punish, deter, and protect, and in this
       particular case, protecting the public out - - is significant.

       Punishing you hasn’t done much in the past * * *

       The fourth-degree felonies would normally have a guidance away
       from sentencing someone to prison, but the Court makes a specific
       finding that you are not amenable to community control sanctions
       and a prison term is, in fact, consistent with the purposes and
       principles of sentencing.”

(Nov. 20, 2017 Tr. Pg. 19-20).

       {¶13} Thus, we find the trial court considered multiple statutory sentencing

factors as set forth in R.C. 2929. As such, Cheek has failed to demonstrate that the

sentence of the trial court was clearly and convincingly contrary to law.

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       {¶14} Therefore, because we find the trial court considered the statutory

factors and that the sentence is within the statutory range, we cannot find that the

trial court erred in sentencing Cheek. Accordingly, Cheek’s argument is not well-

taken and his sole assignment of error is overruled.

       {¶15} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Logan County Common Pleas Court is affirmed.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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