[Cite as State v. Lafferty, 2018-Ohio-4802.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                      ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                     :         OPINION

                    Plaintiff-Appellee,             :
                                                              CASE NO. 2018-A-0037
          - vs -                                    :

 JERICO RICHARD LAFERTY,                            :

                    Defendant-Appellant.            :


 Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 CR
 00440.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, Ashtabula County Courthouse, 25
 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

 Jane Timonere, Timonere Law Offices, L.L.C., 4 Lawyers Row, Jefferson, OH 44047
 (For Defendant-Appellant).



THOMAS R. WRIGHT, P.J.



        {¶1}       Appellant, Jerico Richard Laferty, appeals his five-year prison sentence for

aggravated possession of drugs. We affirm.

        {¶2}       Laferty pleaded guilty to aggravated possession of drugs in violation of R.C.

2925.11(A)(C) and (1)(c), a second-degree felony, with a forfeiture specification, and

operating a vehicle under the influence, a first-degree misdemeanor in violation of R.C.
4511.19(A)(1)(a). The court sentenced him to five years for the aggravated possession

of drug offense concurrent to five months for OVI.

       {¶3}   Laferty fails to set forth assignments of error as required under App.R.

16(A)(3). Notwithstanding this error in briefing, he presents two arguments for review.

       {¶4}   He only challenges the five-year sentence for his aggravated possession of

drug offense as improper, and as such, we do not discuss the propriety of his OVI

sentence.

       {¶5}   Laferty’s first argument contends his sentence is disproportionate to his

conduct, and he claims he should have received a sentence on the lower end of the

applicable sentencing range because his offense was not particularly egregious and since

he took responsibility for his conduct by pleading guilty.

       {¶6}   Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence “only

if it determines by clear and convincing evidence that the record does not support the trial

court's findings under relevant statutes or that the sentence is otherwise contrary to

law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶1. 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.’” Id. at ¶22, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

       {¶7}   His drug possession offense is a second-degree felony. Thus, the court

could have imposed a prison term of two, three, four, five, six, seven, or eight years. R.C.

2929.14(A)(2). The court imposed a mandatory five-year term, which is in the middle of

the prescribed range.




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      {¶8}   Laferty asked for the lowest sentence at sentencing because he has young

children, maintains regular employment, and his criminal history stems from his drug

addiction. He also asked for leniency based on his acceptance of responsibility for his

conduct and since he had remained clean from drugs during the proceedings.

      {¶9}   Before announcing his sentence, the trial court examined Laferty’s history

of offenses both as an adult and juvenile as detailed in his presentence investigation

report. The court explained:

      {¶10} “[T]here are several juvenile adjudications from 2007 to 2010. Also, your

adult record begins in 2011. There’s a couple of drug related misdemeanors. Then [in]

2012, that’s the first felony drug-related conviction. You were placed on community

control on that case. And in 2014, it looks as though you were terminated unsuccessfully

from that. Then in 2013 you had your second felony drug conviction. You were again

placed on community control, and after a hearing that was revoked and then you were

sent to prison. So you have been to prison before * * *. * * * [T]hen again in 2012 and

2013, you have a couple more misdemeanor drug convictions. Then in 2016 and 2017,

you had a couple more misdemeanor convictions including an OVI. And then, of course,

the present offenses that were pled to here.”

      {¶11} Laferty does not challenge the court’s recitation of his criminal history, and

he did not object to or disagree with its statements during sentencing. Moreover, the

court acknowledges that it considered the purposes and principles of the sentencing

statutes, including the recidivism and seriousness factors, and emphasizes that Laferty

has not responded favorably to past sanctions. It notes that he continues to commit

crimes despite community control sanctions and spending time in prison.




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       {¶12} We do not find by clear and convincing evidence that the record does not

support the trial court's findings or that Laferty’s sentence is contrary to law.    R.C.

2953.08(G)(2). Accordingly, his first argument lacks merit and is overruled.

       {¶13} Under his second argument Laferty argues that the general sentencing

structure in Ohio violates the Eighth Amendment’s prohibition against cruel and unusual

punishment.    He claims that sentencing judges are afforded too much discretion in

choosing a prison term in the designated range and that a new standard is required for

examining Eighth Amendment challenges.

       {¶14} However, “the question of the constitutionality of a statute must generally

be raised at the first opportunity and, in a criminal prosecution, this means in the trial

court.” State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986). The failure to do

so, waives the argument on appeal. Id.; O'Brien v. Phillips, 10th Dist. Franklin No. 14AP-

1026, 2015-Ohio-3901, 43 N.E.3d 1, ¶43. Here, Laferty did not raise any constitutional

challenges to the trial court, and as such, this issue is waived.

       {¶15} His second argument lacks merit and is overruled. The trial court’s decision

is affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents.




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