[Cite as State v. Lee, 2017-Ohio-4109.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-16-1229

        Appellee                                 Trial Court No. CR0201601336

v.

Brian Lee                                        DECISION AND JUDGMENT

        Appellant                                Decided: June 2, 2017

                                          *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Patricia S. Wardrop, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                          *****

        SINGER, J.

        {¶ 1} Appellant, Brian Lee, appeals from the September 19, 2016 judgment of the

Lucas County Court of Common Pleas convicting him of breaking and entering, a

violation of R.C. 2911.13(A), a fifth-degree felony, and sentencing him to 11 months of

imprisonment. For the reasons which follow, we affirm.
       {¶ 2} On appeal, appellant asserts the following single assignment of error:

              The Trial Court failed to properly consider R.C. §2929.11 and R.C.

       §2929.12 as required by law when it sentenced Appellant to a prison term.

       {¶ 3} Within this assignment of error, appellant specifically argues that the trial

court did not consider sentencing appellant to an intensive drug treatment program. He

further argues the court did not consider all of the options for sentencing and, therefore,

the sentence was not in compliance with the requirements of R.C. 2929.11 and 2929.12.

       {¶ 4} On appeal, our standard of review is whether there is clear and convincing

evidence in the record to support the findings of the court made under R.C. 2929.13(B) or

(D), 2929.14 (2)(e) or (C)(14), or 2929.20(I) and whether the sentence is contrary to law.

R.C. 2953.08(G)(2).

       {¶ 5} For a felony of the fifth degree, the court is only required to impose a

community control sanction if all of the provisions of R.C. 2929.13(B)(1)(a)(i)-(iv)

apply. One of those factors is that the defendant “previously has not been convicted of or

pleaded guilty to a felony offense.” R.C. 2929.13(B)(1)(a)(i). In this case, appellant has

six adult felony convictions. Therefore, the court was not required to impose a

community control sanction but had the discretion to impose either a community control

sanction or a prison term. R.C. 2929.13(B)(1)(b). A felony of the fifth degree can be

punished by a term of incarceration ranging from six months to one year. R.C.

2929.14(A)(5).




2.
       {¶ 6} In its judgment, the trial court stated it “considered the record, oral

statements, any victim impact statement and presentence report prepared, as well as the

principles and purposes of sentencing under R.C. 2929.11, and has balanced the

seriousness, recidivism and other relevant factors under R.C. 2929.12.” The court made

substantially the same statement at the sentencing hearing. The court found appellant

was not amenable to community control and that a prison term was consistent with the

purposes of R.C. 2929.11. At the sentencing hearing, the trial court specifically noted

that this was appellant’s 36th conviction. Appellant informed the court that appellant

now realized all of his convictions were related to his drug addiction and that he needed a

community control sentence in order to complete the drug rehabilitation treatment which

he had voluntarily begun.

       {¶ 7} Upon a review of the record, therefore, we find that the trial court knew of

appellant’s drug addiction and voluntary participation in a drug treatment program. The

court also considered the facts of this case and the relevant sentencing factors before

imposing appellant’s sentence. There is no evidence to support appellant’s contention the

trial court did not consider imposing a community control sanction because the court

specifically found that appellant was not amenable to community control. Appellant’s

sole assignment of error is not well-taken.




3.
       {¶ 8} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
James D. Jensen, P.J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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