[Cite as State v. Jacobs, 2019-Ohio-668.]




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




STATE OF OHIO,
                                                          CASE NO. 8-18-38
       PLAINTIFF-APPELLEE,

       v.

WAYNE E. JACOBS,                                          OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR-17-11-0389

                                      Judgment Affirmed

                           Date of Decision: February 25, 2019



APPEARANCES:

        Eric J. Allen for Appellant

        Alice Robinson-Bond for Appellee
Case No. 8-18-38


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Wayne E. Jacobs (“Jacobs”) appeals the judgment

of the Logan County Court of Common Pleas, alleging the trial court imposed a

sentence that was not supported by the record. For the reasons set forth below, the

judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} On November 15, 2017, Jacobs was indicted on two counts of rape in

violation of R.C. 2907.02(A)(1)(c). Doc. 2. Jacobs entered into a plea agreement

with the State and, on June 29, 2018, pled guilty to one count of rape in violation of

R.C. 2907.02(A)(1)(c). Doc. 111. One provision contained in this plea agreement

read as follows:

       9. I understand that by pleading guilty, I waive the following
       constitutional rights that I have:

       ***

       f. the right to appeal any judgment of this Court to the Court of
       Appeals.

Doc. 111. At the plea hearing, the trial judge stated the following:

       Now, if I impose the maximum sentence * * * and I’m not telling
       you what’s going to happen because I don’t know--but if the
       Court were to impose the maximum sentence, you could appeal
       the sentence, you could appeal the sentence, but only if you filed a
       notice of appeal within 30 days after the Court issues its sentence
       and puts it in the file. If you don’t file a notice of appeal inside
       that 30 days, you waive your right to appeal.



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Change of Plea Hearing Tr. 19. Pursuant to the plea agreement, the State dismissed

the second count of rape against Jacobs and the repeat violent offender specification.

Id. at 4. This agreement did not include a joint sentencing recommendation. Id. at

6. On July 31, 2018, the trial court sentenced Jacobs. Doc. 112. At this hearing,

the trial judge stated the following:

       Now, Wayne, you may have the right to appeal this sentence. I
       did not impose the maximum. I imposed one year short of the
       maximum. Nonetheless, there may be other elements of the
       sentence that are appealable.

Sentencing Hearing Tr. 22.

                                 Assignment of Error

       {¶3} Appellant filed his notice of appeal on August 28, 2018. Doc. 120. On

appeal, Jacobs raises the following assignment of error:

       The court erred by imposing a sentence unsupported by the
       record per O.R.C. 2929.14.

Jacobs concedes that his sentence is within the statutory range prescribed in R.C.

2929.14(A)(1), being one year less than the maximum sentence. However, Jacobs

argues that the facts of this case do not support a sentence of this duration.

                                   Legal Standard

       {¶4} In the process of sentencing offenders for felonious conduct, the trial

court is to “be guided by the overriding purposes of felony sentencing.” R.C.

2929.11(A).



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       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. To
       achieve those purposes, the sentencing court shall 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. “Although the trial court must consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.

2929.12, the sentencing court is not required to ‘[s]tate on the record that it

considered the statutory criteria or discuss[ed] them.’” State v. Witt, 3d Dist.

Auglaize No. 2-17-09, 2017-Ohio-7441, ¶ 11, quoting State v. Maggette, 3d Dist.

Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 32, quoting State v. Polick, 101 Ohio

App.3d 428, 431, 655 N.E.2d 820, 822 (4th Dist.1995).

       {¶5} A “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.

Shreves, 2016-Ohio-7824, 74 N.E.3d 765, ¶ 14 (3d Dist.), quoting State v. King, 2d

Dist. Clark Nos. 2012-CA-25 and 2012-CA-26, 2013-Ohio-2021, ¶ 45. “A trial

court’s statement that it considered the required statutory factors, without more, is

sufficient to fulfill its obligations under the sentencing statutes.” State v. Nienberg,

3d Dist. Putnam Nos. 12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 12, quoting

Maggette at ¶ 32.

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       {¶6} “Appellate courts defer to the broad discretion of the trial court in

matters of sentencing.” State v. Walton, 3d Dist. Logan No. 8-17-55, 2018-Ohio-

1680, ¶ 7. “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. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-

Ohio-456, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 1.

       Clear and convincing evidence is that measure or degree of proof
       which is more than a mere ‘preponderance of the evidence,’ but
       not to the extent of such certainty as is required ‘beyond a
       reasonable doubt’ in criminal cases, and which will produce in the
       mind of the trier of facts a firm belief or conviction as to the facts
       sought to be established.


State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, (3d Dist.), ¶ 12, quoting Cross

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

(1954).

                                  Legal Analysis

       {¶7} In its brief, the State argues that Jacobs waived his right to appeal by

agreeing to section 9(f) of his plea agreement and that this Court should not,

therefore, consider the merits of his argument. See Doc. 111. The State urges this

Court to follow the holding of the Tenth District as stated in State v. Horton, 2017-

Ohio-8549, 99 N.E.3d 1090 (10th Dist.). This Court recently considered this exact

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argument in State v. Watkins, 3d Dist. Logan No. 8-18-21, 2018-Ohio-4921, ¶ 9,

and held the following:

         The State cites State v. Horton, 10th Dist. Franklin No. 17AP-266,
         2017-Ohio-8549, 99 N.E.3d 1090, ¶ 15, for the proposition that
         based on the written plea agreement Watkins actually
         unequivocally waived his right to appeal in this case. Horton does
         have one significant difference from the case before us, which
         would potentially prevent it from being directly analogous. In
         Horton, it was also noted at the plea hearing that the defendant
         was giving up his right to appeal. Here, the trial court only
         indicated at the plea hearing that Watkins’ right to appeal would
         be severely limited. It was not restated at the plea hearing that
         Watkins had waived his right to appeal without qualification.
         While we could use Horton as persuasive authority in this case to
         potentially overrule Watkins’ assignments of error without
         addressing them, Horton still proceeded to address the merits of
         the arguments in the interest of justice, and we will do the same.

Watkins at ¶ 9.1 The case before us is factually analogous to Watkins. The trial

judge did not indicate that Jacobs “had waived his right to appeal without

qualification.” Id. Rather, the trial judge, at the change of plea hearing and the

sentencing hearing, indicated that Jacobs would have a right to appeal in some form.

Change of Plea Tr. 19. For this reason, we will follow Watkins and will proceed to

examine the merits of Jacobs’s argument.




1
  In State v. Gwynne, the Fifth District wrote that the “appellant ha[d] not waived her right to appeal her
sentence” “[b]ecause there was no agreement as to sentence in this matter.” State v. Gwynne, 5th Dist.
Delaware No. 16 CAA 12 0056, 2017-Ohio-7570, fn. 1. The State of Ohio appealed this judgment to the
Supreme Court of Ohio, asserting the following proposition of law: “When a defendant knowingly,
intelligently, and voluntarily waived her right to appeal as part of her plea agreement, an appellate court is
without authority to address the merits of the appeal.” State v. Gwynne, 152 Ohio St.3d 1420, 2018-Ohio-
923, 93 N.E.3d 1002, Appellant’s Brief. The Supreme Court has not yet issued a ruling on this issue.
However, we do not anticipate that the outcome of Gwynne will have an impact on the case before us as the
facts of this case did not require us to issue a ruling on the specific issue before the Supreme Court.

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       {¶8} In this case, the trial court expressly considered the overriding

principles of felony sentencing at the sentencing hearing and in its judgment entry.

Sentencing Hearing Tr. 10-11. Doc. 112. Further, the sentence imposed by the trial

court falls within the statutory range. See R.C. 2929.14(A)(1). The record shows

that Jacobs admitted that he was guilty of a serious crime and had a long history of

committing similar sex offenses. Change of Plea Hearing Tr. 11-12, 20. Sentencing

Hearing Tr. 7-10. After reviewing the facts of this case, we find that Jacobs’s

sentence was adequately supported by the facts in the record. Because Jacobs did

not carry the burden of demonstrating, by clear and convincing evidence, that his

sentence was unsupported by the record, his sole assignment of error is overruled.

                                    Conclusion

       {¶9} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Logan County Court of Common Pleas is

affirmed.

                                                               Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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