[Cite as State v. Hampton, 2017-Ohio-7067.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104629



                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 MARK S. HAMPTON
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CV-16-603044-A

        BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: August 3, 2017
ATTORNEY FOR APPELLANT

Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Owen M. Patton
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

      {¶1} Defendant-appellant, Mark S. Hampton, pleaded guilty to a single count of

robbery in violation of R.C. 2911.02(A)(3), a third-degree felony.         The trial court

sentenced Hampton to a total of five years in prison — the maximum sentence that could

be given.   We granted Hampton leave to file a delayed appeal, and he raises the

following assignment of error:

       The record clearly and convincingly fails to support the imposition of a
       maximum sentence upon the defendant.

       {¶2} Finding no merit to the appeal, we affirm.

I.     Standard of Review

       {¶3} Our review of felony sentences is governed by R.C. 2953.08.         Under the

plain language of R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony

sentence on appeal 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. Filous, 8th Dist. Cuyahoga No. 104287,

2016-Ohio-8312, ¶ 4, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231.

II.    Maximum Sentence

       {¶4} Hampton argues that the maximum sentence of five years did not advance

the two primary purposes of felony sentencing: to protect the public from Hampton and to

punish him using minimum sanctions. Hampton also claims that the “record here clearly
and convincingly shows that the trial judge gave no consideration to the [R.C.] 2929.12

factors.”   Specifically, he claims that the seriousness of his conduct should have been

mitigated by his “problems with drug abuse” and that his “law-abiding life for a

significant number of years” should have weighed heavily in his favor regarding the

recidivism factor.   Therefore, Hampton asserts that the “record clearly and convincingly

demonstrates that the imposition of a maximum penalty [was] unwarranted.”

        {¶5} Plaintiff-appellee, state of Ohio, argues that our review of Hampton’s

five-year sentence should focus “solely on whether his sentence is otherwise contrary to

law.”   The state argues that the five-year sentence is not contrary to law because it is

“within the statutory range for a felony of the third degree,” and the trial court properly

considered the purposes and principles of felony sentencing before it sentenced Hampton

to five years of imprisonment.

        {¶6} As explained by the Ohio Supreme Court:

        We note that some sentences do not require the findings that R.C.
        2953.08(G) specifically addresses. Nevertheless, it is fully consistent for
        appellate courts to review those sentences that are imposed solely after
        consideration of the factors in R.C. 2929.11 and 2929.12 under a standard
        that is equally deferential to the sentencing court. That is, an appellate
        court may vacate or modify any sentence that is not clearly and
        convincingly contrary to law only if the appellate court finds by clear and
        convincing evidence that the record does not support the sentence.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23.

        {¶7} Although the trial court has full discretion to impose any term of

imprisonment within the statutory range, it must consider the sentencing purposes in R.C.

2929.11 and the guidelines contained in R.C. 2929.12.      Filous, 8th Dist. Cuyahoga No.
104287, 2016-Ohio-8312, at ¶ 5.     A trial court, however, is not required to make specific

findings on the record with respect to its consideration of R.C. 2929.11 and 2929.12.

State v. Boczek, 8th Dist. Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 22, citing State v.

Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381 (“although the trial court

must consider the purposes and principles of sentencing as well as the mitigating factors,

the court is not required to use particular language or make specific findings on the record

regarding its consideration of those factors.”).

       {¶8} R.C. 2929.11(A) provides 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.” R.C. 2929.11(B) requires that, in addition to achieving these goals, a

sentence must be “commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim.”

       {¶9} R.C. 2929.12 provides a nonexhaustive list of factors the court must

consider in determining the relative seriousness of the underlying crime and the

likelihood that the defendant will commit another offense in the future. State v. Wright,

8th Dist. Cuyahoga No. 100283, 2014-Ohio-3321, ¶ 9, citing State v. Townsend, 8th Dist.

Cuyahoga No. 99896, 2014-Ohio-924. The factors include: (1) a defendant’s pattern of

drug or alcohol abuse related to the offense, (2) the defendant’s prior criminal record, (3)

whether the defendant had led a law-abiding life for a significant number of years, and (4)

any other relevant factors.   R.C. 2929.12(D) and (E).
       {¶10} When a defendant pleads guilty to robbery in violation of R.C. 2911.02, a

felony of the third degree, and the defendant has pleaded guilty two or more times to

robbery in the past, the prison term ranges from 12 to 60 months.                  See R.C.

2929.14(A)(3)(A); see also State v. Whittington, 6th Dist. Lucas No. L-16-1073,

2017-Ohio-613 (54-month sentence for robbery in violation of R.C. 2911.02(A)(3) was

within the permissible range and not contrary to law because defendant pleaded guilty to

robbery after pleading guilty to two past robberies).    Here, Hampton pleaded guilty to

robbery in violation of R.C. 2911.02(A)(3) after being convicted of two prior robberies.

Thus, the five-year prison sentence was within the statutory guidelines.

       {¶11} And prior to imposing Hampton’s sentence, the trial court reviewed his

psychological report, the presentence investigation report (“PSI”), and heard from both

the state and defense counsel, along with Hampton.        The PSI informed the trial court

that Hampton had a high recidivism level. It also informed the trial court of Hampton’s

significant criminal history, which included convictions for assault, theft, receiving stolen

property, OVI, and two prior bank robberies. In imposing the maximum five-year prison

sentence, the trial court specifically explained:

       The court has considered this information, and I find that, first of all, you
       are not amenable to community control sanctions. Your history is very
       bad. Whatever the reason is, drunk or sober, you rob banks. It is
       extremely dangerous. You put everybody at risk when you walk into a
       bank and demand money.

       There’s often armed guards in banks, and it’s not uncommon for firearms to
       be used; although, you didn’t use a firearm. I won’t hold it against you.
       That’s why it’s serious and dangerous. I don’t know what it’s going to take
       to get you to stop. Sobriety is what it will take to get you to stop.
       In the meantime, you have to be separated from society because you can’t
       seem to stay out of banks and demand money.

The trial court’s sentencing entry stated that “the court considered all required factors of

the law” when it imposed Hampton’s five-year prison sentence.

       {¶12} We do not find any evidence in the record that the trial court failed to

properly consider or apply R.C. 2929.11 and 2929.12 when it imposed the maximum

sentence upon Hampton.       To the contrary, the record demonstrates that the trial court

properly considered a sentence that would protect the public from future harm by

Hampton, especially considering his significant criminal history that included two prior

bank robberies. And the trial court considered the seriousness of Hampton’s crime and

his likelihood to commit another offense in the future. Although Hampton claimed to

have lived a law-abiding life for several years, the trial court noted that Hampton’s

criminal activity related to a pattern of alcohol abuse.

       {¶13} We find that the record clearly supports the trial court’s imposition of the

maximum five-year prison sentence upon Hampton and that the sentence is not contrary

to law.      Therefore, we find no merit to Hampton’s assignment of error and it is

overruled.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.   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.




MARY J. BOYLE, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
