[Cite as State v. Thompson, 2019-Ohio-4505.]




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


State of Ohio                                            Court of Appeals No. S-18-049

        Appellee                                         Trial Court No. 18CR469

v.

Deon A. Thompson                                         DECISION AND JUDGMENT

        Appellant                                        Decided: November 1, 2019

                                                  *****

        Timothy Braun, Sandusky County Prosecuting Attorney, and
        Kaitlin E. Klucas, Assistant Prosecuting Attorney, for appellee.

        James H. Ellis III, for appellant.

                                                  *****

        ZMUDA, J.

                                               I. Introduction

        {¶ 1} Appellant, Deon Thompson, appeals the judgment of the Sandusky County

Court of Common Pleas, sentencing him to 18 months in prison for one count of

aggravated trafficking in drugs. Finding no error in the proceedings below, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} On May 8, 2018, appellant was indicted on one count of possession of

Fentanyl in violation of R.C. 2925.11(A) and (C)(1)(c), a felony of the second degree,

one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2) and

(C)(1)(d), a felony of the second degree, and one count of receiving stolen property in

violation of R.C. 2913.51(A) and (C), a felony of the fourth degree. Appellant entered a

plea of not guilty to the foregoing charges at his arraignment on May 9, 2018.

Thereafter, the matter proceeded through discovery and plea negotiations.

       {¶ 3} On June 20, 2018, appellant appeared before the trial court for a change of

plea hearing. At the hearing, appellant entered a plea of guilty to an amended charge of

aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(a), a felony

of the fourth degree, in exchange for the state’s dismissal of the remaining charges.

       {¶ 4} Following a Crim.R. 11 colloquy, the state questioned appellant regarding

the facts that gave rise to the charges contained in the indictment. According to

appellant, he and two codefendants met in Detroit at a Church’s Chicken on April 18,

2018. The three men departed from the restaurant with Fentanyl and a handgun in their

vehicle. Appellant stated that he was being paid $2,500 to help transport the Fentanyl to

Cleveland. Appellant and his codefendants were apprehended by police while traveling

toward Cleveland on Interstate 80 in Sandusky County. At the time of their

apprehension, the men were in possession of 110 grams of Fentanyl, which was hidden in

the engine compartment of the automobile alongside a Glock .40-caliber handgun.




2.
        {¶ 5} After the foregoing facts were recited, appellant executed a written guilty

plea agreement. The trial court accepted appellant’s plea and found him guilty of

aggravated trafficking in drugs. The court ordered the preparation of a presentence

investigation report and continued the matter for sentencing.

        {¶ 6} Appellant’s sentencing hearing was held on September 25, 2018. At the

sentencing hearing, the trial court noted the substantial reduction in prison exposure

appellant received pursuant to the plea agreement, and proceeded to impose the

maximum sentence of 18 months based upon the court’s examination of appellant’s prior

criminal record and history of community control violations. Following the court’s

dismissal of the charges for possession of Fentanyl and receiving stolen property, the

sentencing hearing concluded.

        {¶ 7} In its sentencing entry, the trial court indicated that it considered the

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

and recidivism factors under R.C. 2929.12. The court also articulated that it imposed the

maximum prison sentence “[d]ue to the defendant’s prior criminal history and his

inability to successfully complete community control/probation sanctions.”

        {¶ 8} On December 10, 2018, appellant filed a notice of appeal and a motion for

delayed appeal. Appellant’s motion for delayed appeal was granted on February 25,

2019.




3.
                                   B. Assignment of Error

       {¶ 9} On appeal, appellant sets forth the following assignment of error:

              The trial court erred by failing to comply with applicable statutes in

       sentencing the appellant.

                                        II. Analysis

       {¶ 10} In his sole assignment of error, appellant argues that the trial court erred in

sentencing him without proper consideration of the principles and purposes of sentencing

set forth in R.C. 2929.11. Appellant also asserts that the trial court failed to consider all

of the seriousness and recidivism factors under R.C. 2929.12, and failed to make any

findings to support its maximum sentence.

       {¶ 11} The review of felony sentences is governed under R.C. 2953.08(G)(2).

Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate

and remand a sentence only if the record demonstrates, clearly and convincingly, either

of the following:

              (a) That the record does not support the sentencing court’s findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant; or

              (b) That the sentence is otherwise contrary to law.

“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




4.
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. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

       {¶ 12} A trial court that sentences a defendant for a felony offense, “shall be

guided by the overriding purposes of felony sentencing: * * * to protect the public from

future crime by the offender and others, to punish the offender, and to promote the

effective rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). When considering the appropriate

sentence, the trial 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. The sentence must be

reasonably calculated to achieve those purposes “commensurate with and not demeaning

to the seriousness of the offender’s conduct and its impact upon the victim, and consistent

with sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

       {¶ 13} To comply with the principles and purposes of sentencing set forth in R.C.

2929.11, the trial court must consider the seriousness and recidivism factors contained in

R.C. 2929.12. To that end, we have previously explained,




5.
              R.C. 2929.12 is a guidance statute. It sets forth the seriousness and

       recidivism criteria that a trial court “shall consider” in fashioning a felony

       sentence. Subsections (B) and (C) establish the factors indicating whether

       the offender’s conduct is more serious or less serious than conduct

       normally constituting the offense. Subsections (D) and (E) contain the

       factors bearing on whether the offender is likely or not likely to commit

       future crimes. While the phrase “shall consider” is used throughout R.C.

       2929.12, the sentencing court is not obligated to give a detailed explanation

       of how it algebraically applied each seriousness and recidivism factor to the

       offender. Indeed, no specific recitation is required. Merely stating that the

       court considered the statutory factors is enough.

State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11

(6th Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38

and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

       {¶ 14} At the sentencing hearing in this case, the trial court examined the facts of

this case, giving specific attention to the serious nature of transporting 110 grams of a

highly dangerous drug, Fentanyl. The court also recited appellant’s criminal record and

noted the fact that appellant has a history of violating the terms of his community control.

In its sentencing entry, the trial court indicated that it considered the principles and

purposes of sentencing under R.C. 2929.11, and balanced the seriousness and recidivism




6.
factors under R.C. 2929.12. As noted above, the trial court’s statement that it considered

the sentencing statutes is sufficient to pass muster under Ohio law. Brimacombe at ¶ 11.

       {¶ 15} Appellant contends that a lesser sentence would have served the principles

and purposes of sentencing under R.C. 2929.11, because he was merely a passenger in

the vehicle that was transporting the Fentanyl, he was not committing an act of violence,

and he is in poor health. Further, appellant takes issue with the trial court’s balancing of

the seriousness and recidivism factors under R.C. 2929.12, insisting that a “complete

consideration” of those factors would have led the court to determine that appellant’s

conduct was “much less serious than what would normally constitute a violation

requiring the imposition of the maximum prison sentence for a fourth degree felony.”

       {¶ 16} Given the trial court’s consideration of the serious nature of appellant’s

conduct in trafficking 110 grams of Fentanyl, and in light of the court’s express

consideration of the principles and purposes of sentencing under R.C. 2929.11, as well as

the sentencing factors under R.C. 2929.12, we find that the trial court complied with R.C.

2929.11 and 2929.12.

       {¶ 17} Moreover, we reject appellant’s contention that the trial court erred in

imposing a maximum sentence without making certain findings to support the sentence.

Since the Supreme Court of Ohio’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, trial courts have “‘full discretion to impose a prison sentence within the

statutory range,’” up to and including the maximum sentence for a given crime. State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 13, quoting Foster at




7.
¶ 100. In our recent decision in State v. Grace, 6th Dist. Sandusky No. S-18-044, 2019-

Ohio-3812, we examined an identical argument to the one advanced by appellant here

concerning the imposition of maximum sentences, and concluded that trial courts are “not

required to make any special findings before imposing maximum sentences.” Id. at ¶ 25.

       {¶ 18} Because the trial court expressly considered the principles and purposes of

sentencing under R.C. 2929.11 and balanced the seriousness and recidivism factors under

R.C. 2929.12 prior to imposing a sentence that was within the applicable statutory range

under R.C. 2929.14, we find that appellant’s sentence is not contrary to law.

Accordingly, appellant’s assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 19} In light of the foregoing, the judgment of the Sandusky 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.




8.
                                                                     State v. Thompson
                                                                     C.A. No. S-18-049




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Christine E. Mayle, P.J.
                                              _______________________________
Gene A. Zmuda, J.                                         JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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