[Cite as State v. Lucas, 2017-Ohio-429.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NO. 2016-L-063
        - vs -                                      :

JOSHUA D. LUCAS,                                    :

                 Defendant-Appellant.               :


Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2016 CR 000240.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Richard P. Morrison, 30601 Euclid Avenue, Wickliffe, OH 44092 (For Defendant-
Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Joshua D. Lucas, appeals his sentence from the Lake County

Court of Common Pleas, following his guilty plea to two counts of Attempted Aggravated

Trafficking in Drugs, felonies of the fifth degree, in violation of R.C. 2923.02 and R.C.

2925.03(A)(1) (Counts 1 and 2) with an accompanying forfeiture specification on each

count as set forth in R.C. 2941.1417, and one count of Possession of Drugs, a felony of
the fifth degree, in violation of R.C. 2925.11 (Count 3) with two accompanying forfeiture

specifications as set forth in R.C. 2941.17.

       {¶2}     On January 27, 2016, the Lake County Narcotics Agency and the Eastlake

Police Department began an investigation of appellant using a confidential informant

(“CI”). On January 27, January 29, and February 18, 2016, the CI arranged, through

text message with appellant, the purchase of Oxycodone tablets from appellant. On

each occasion the CI went to the apartment where appellant lived, appellant allowed the

CI to enter the apartment, and the CI purchased, with $160.00 in prerecorded funds,

four tablets of Oxycodone from appellant. The CI then returned the Oxycodone tablets

to law enforcement, and the Lake County Crime Lab confirmed the tablets to be

Oxycodone.      On one occasion, the CI observed appellant retrieve four Oxycodone

tablets from a safe in which the CI saw additional Oxycodone tablets.

       {¶3}     Based on the foregoing investigation, a search warrant was obtained and

executed on February 22, 2016, at the apartment where appellant resided. Officers

found the cell phone appellant used to communicate with the CI.                Appellant gave

officers the combination to the safe from which the CI had observed appellant retrieve

Oxycodone tablets.      Upon opening the safe, officers found suspected marijuana,

$2,843.00 in cash, and a Suboxone strip. Appellant indicated that everything in the safe

was his.      Officers retrieved $70.00 in cash and suspected heroin from appellant’s

person, as well as suspected heroin, two digital scales, a smoking pipe, and two jars

containing various tablets from the apartment. Appellant was arrested for possession of

heroin, a felony of the fifth degree, in violation of R.C. 2925.11(C)(6)(a).




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      {¶4}   On March 1, 2016, appellant was appointed counsel in the Willoughby

Municipal Court. Appellant waived a preliminary hearing and consented to be bound

over to the Lake County Grand Jury on the charge of possession of heroin. On March

25, 2016, appellant waived his right to a speedy trial. On April 15, 2016, the state

charged appellant with two counts of Attempted Aggravated Trafficking in Drugs, with a

forfeiture specification accompanying each count, and one count of Possession of

Drugs, with two accompanying forfeiture specifications, by way of information. The

state filed an amended information, which revised the citation to R.C. 2925.03 in the

original information as the complete citation of R.C. 2925.03(A)(1), on April 21, 2016.

On April 25, 2016, a hearing was held on the amended three-count information.

Appellant waived prosecution by indictment and entered a plea of guilty to the charges

in the information. The matter was referred to the adult probation department for a

presentence investigation report and a drug and alcohol evaluation. Sentencing was

set for May 25, 2016.

      {¶5}   At the May 25, 2016 sentencing hearing, after stating its finding under

R.C. 2929.13(B)(1)(b)(xi) and considering the purposes and principles of felony

sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12,

the court sentenced appellant to a prison term of 12 months for each count of Attempted

Aggravated Trafficking in Drugs and 12 months for Possession of Drugs, with all

sentences to be served consecutive to each other for a total prison term of 36 months.

The judgment entry of sentence was entered on May 26, 2016.

      {¶6}   Appellant filed a timely notice of appeal. Appellant asserts the following

as his sole assignment of error:




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       {¶7}   “The trial court erred by sentencing the defendant-appellant to a maximum

and consecutive thirty six month prison term.”

       {¶8}   Generally, we review the trial court’s imposition of sentence under the

standard of review set forth in R.C. 2953.08(G)(2). See State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, ¶22. Pursuant to 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.” Id. at ¶1, citing R.C.

2953.08(G)(2).

       {¶9}   Here, although present at the sentencing hearing and represented by

counsel, appellant failed to make any objection with regard to the trial court’s sentencing

findings or imposition of sentence. Because appellant failed to make any objections to

his sentence at the sentencing hearing, our review is limited to plain error. State v.

Aikens, 11th Dist. Trumbull No. 2014-T-0124, 2016-Ohio-2795, ¶53 (citation omitted).

“Plain error does not exist unless, but for the error, the outcome of the [proceeding]

would have been different.” State v. Perry, 11th Dist. Lake No. 2004-L-077, 2005-Ohio-

6894, ¶25 (citation omitted).

       {¶10} Appellant argues the trial court’s findings pertaining to the seriousness

and recidivism factors under R.C. 2929.12 were not supported by the record and were

contrary to law.

       {¶11} A court imposing a felony sentence is required to consider seriousness

and recidivism factors found in R.C. 2929.12. The trial court, however, “is not required

to ‘use specific language or make specific findings on the record in order to evince the




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requisite consideration of the applicable seriousness and recidivism factors (of R.C.

2929.12.)’”   State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-Ohio-4198, ¶10,

quoting State v. Arnett, 88 Ohio St.3d 208, 215 (2000); see also State v. O’Neil, 11th

Dist. Portage No. 2010-P-0041, 2011-Ohio-2202, ¶34. Further, the “trial court is not

required to give any particular weight or emphasis to a given set of circumstances”

when considering the statutory factors. State v. Delmanzo, 11th Dist. Lake No. 2007-L-

218, 2008-Ohio-5856, ¶23.

       {¶12} The record reflects that the trial court considered the factors under R.C.

2929.12 at the sentencing hearing and in the sentencing entry.          At the sentencing

hearing the trial court did not find any factors indicating appellant’s conduct is less

serious. With regard to the factors indicating appellant’s conduct is more serious, the

trial court stated, “[y]ou were part of an organized drug trade * * *, you have direct

knowledge of others involved in this drug trade, you have direct knowledge that the use

of these pills leads to heroin use so you have direct knowledge that other people are

becoming hooked as a result of your actions in this organized drug trade.” Under the

factors indicating recidivism is less likely, the court found appellant does not have a

juvenile record; however, under the factors indicating recidivism is likely, the court found

appellant committed the offense while on community control, appellant has a long

history of criminal convictions, appellant has not responded favorably to previously

imposed sanctions, and appellant did not show remorse.            The judgment entry of

sentence reflects the trial court’s findings in stating that the trial court “balanced the

seriousness and recidivism factors under 2929.12.”




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       {¶13} Appellant asserts the trial court “ignored or discounted” factors indicating

his conduct was less serious than conduct normally constituting the offense under R.C.

2929.12(C), specifically that under (C)(3) he “did not cause or expect to cause anyone

physical or economic harm” in committing the offense. Appellant argues the record

indicates he did not cause physical harm to any person in the commission of the

offense, but the trial court found at the sentencing hearing that “[u]nder factors

indicating the conduct is less serious I don’t find any.” Although the record does not

indicate appellant caused physical or economic harm in committing the offense, the

finding of one mitigating factor would not outweigh the substantial aggravating factors

noted by the trial court. We cannot determine that the outcome of the proceedings

would have been different had the trial court made the finding of this mitigating factor.

       {¶14} Appellant also argues the trial court failed to recognize he “repeatedly

expressed genuine remorse,” a factor indicating appellant is not likely to commit future

crimes under R.C. 2929.12(E). “[A] reviewing court must defer to the trial court as to

whether a defendant’s remarks are indicative of genuine remorse because it is in the

best position to make that determination.” State v. Dudley, 11th Dist. Lake No. 2009-L-

019, 2009-Ohio-5064, ¶22 (citations omitted).       At the sentencing hearing appellant

repeatedly asked for a second chance and acknowledged that his “actions were wrong.”

However, the record also demonstrates appellant did not disclose the names of the

persons with whom he was working in the drug trade after the trial court gave him

repeated opportunities to do so. The trial court concluded appellant did not have any

remorse. Nothing in the record causes us to question the trial court’s determination with

regard to appellant’s remorse.




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      {¶15} The record demonstrates that the trial court considered the factors under

R.C. 2929.12. Therefore, we find no plain error.

      {¶16} Appellant’s sole assignment of error is without merit. For the foregoing

reasons, the judgment of the Lake County Court of Common Pleas is affirmed.



DIANE V.GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents.




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