[Cite as State v. Folk, 2017-Ohio-8105.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 27375
                                                 :
 v.                                              :   Trial Court Case No. 16-CR-2193
                                                 :
 AARON FOLK                                      :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 6th day of October, 2017.

                                            ...........

MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
     Attorney for Defendant-Appellant

                                           .............

HALL, P.J.
                                                                                           -2-




       {¶ 1} Aaron Folk appeals from the sentence he received after pleading guilty to

one count of rape. Folk challenges the trial court’s decision to impose the maximum

allowable prison sentence for his offense. Finding that the sentence is not contrary to law

and that the record amply supports the trial court’s decision, we affirm.

                                      I. Background

       {¶ 2} Folk was indicted in July 2016 on one count of rape of a child under ten years

of age, a first-degree felony. Under a plea deal, Folk pleaded guilty to first-degree rape

by force or threat or force, charged in a bill of information that omitted that the victim was

under 10 years of age, and the State dismissed the indicted offense. The trial court

accepted Folk’s guilty plea and ordered a presentence investigation. At the sentencing

hearing, the trial court imposed the maximum allowable prison sentence of 11 years.

       {¶ 3} Folk appealed.

                                        II. Analysis

       {¶ 4} Folk’s sole assignment of error alleges that the trial court abused its

discretion by imposing the maximum sentence for a single count of rape.

       {¶ 5} “This court no longer applies an abuse of discretion standard when reviewing

felony sentences, as the Supreme Court of Ohio has made clear that felony sentences

are to be reviewed in accordance with the standard set forth in R.C. 2953.08(G)(2).” State

v. McCoy, 2d Dist. Clark No. 2016-CA-28, 2016-Ohio-7415, ¶ 6, citing State v.

Marcum,146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State v.

Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.). Under the plain language of

R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony sentence on
                                                                                          -3-


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.” Marcum at ¶ 1. “This is a very deferential standard of review, as the

question is not whether the trial court had clear and convincing evidence to support its

findings, but rather, whether we clearly and convincingly find that the record fails to

support the trial court’s findings.” State v. Cochran, 2d Dist. Clark No. 2016-CA-33, 2017-

Ohio-217, ¶ 7, citing Rodeffer at ¶ 31.

       {¶ 6} Even before Marcum, we had indicated “[t]he 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 reasons for imposing maximum or more than minimum

sentences.” (Citation omitted.) State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-

Ohio-5797, ¶ 62. Accord State v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-

4201, ¶ 14. But “in exercising its discretion, a trial court must consider the statutory

policies that apply to every felony offense, including those set out in R.C. 2929.11 and

R.C. 2929.12.” (Citations omitted.) State v. Castle, 2016-Ohio-4974, 67 N.E.3d 1283, ¶

26 (2d Dist.). It follows, then, that “ ‘a maximum sentence is not contrary to law when it is

within the statutory range and the trial court considered the statutory purposes and

principles of sentencing as well as the statutory seriousness and recidivism factors.’

” State v. Walden, 2d Dist. Clark No. 2014-CA-84, 2016-Ohio-47, ¶ 7, quoting State v.

Martin, 2d Dist. Clark No. 2014-CA-69, 2015-Ohio-697, ¶ 8.

       {¶ 7} Here, the maximum 11-year prison sentence imposed by the trial court was

within the authorized statutory range. The court stated at the sentencing hearing that it

had considered “the purposes and principles of sentencing [in R.C. 2929.11] and the
                                                                                        -4-


seriousness and recidivism factors [in R.C. 2929.12].” (Tr. 37). Although the court did not

state the same in its termination entry, “[a] trial court is not required to state that it

considered R.C. 2929.11 and R.C. 2929.12.” State v. Neff, 2d Dist. Clark No. 2012-CA-

31, 2012-Ohio-6047, ¶ 5. Folk’s 11-year prison sentence, therefore, is not contrary to law.

      {¶ 8} We may only vacate or modify Folk’s sentence, then, if we find by clear and

convincing evidence that the record does not support the sentence. This is exactly what

Folk contends—that the record does not support imposing the maximum statutory term

for a single count of rape. We disagree.

      {¶ 9} Folk’s pre-sentence investigation (PSI) report shows that he has previously

been convicted of sex crimes against young children and has been designated a Tier II

sex offender. In 2007, Folk was convicted of gross sexual imposition for vaginally

penetrating his then-girlfriend’s fourteen-year-old daughter. A rape charge was

dismissed. And he was convicted of unlawful sexual conduct with a minor for fondling the

vagina of the girlfriend’s eight-year-old daughter. In 2010, Folk was again convicted of

gross sexual imposition, for fondling the vagina of another girlfriend’s fourteen-year-old

daughter while she slept.

      {¶ 10} In the present case, Folk was convicted of rape for anally penetrating his

girlfriend’s nine-year-old daughter while she slept. And he threatened the girl by telling

her that he would kill her if she told anyone. At sentencing, the trial judge noted the

similarity between this crime and the previous crimes: “You take advantage of the child

of a girlfriend. Their ages in each of the three cases were between the ages of eight and

fourteen, and it’s a modus operandi that is beyond alarming.” (Tr. 36). The PSI states that

according to Folk’s parole officer Folk has been noncompliant while on post-release
                                                                                         -5-


control for his prior crimes. The parole officer said that “Folk has been sanctioned so

many times that he no longer had prison time looming over him.” According to the parole

officer, Folk has violated a temporary protection order, been involved in domestic

violence, had prohibited contact with individuals under the age of 18, and tested positive

for cocaine approximately seven times. The parole officer also reported that Folk has

failed to complete sex-offender treatment. It was the parole officer’s opinion that Folk “is

not amenable to supervision” and that “he will continue to sexually assault children.”

       {¶ 11} Folk’s maximum sentence represents more than just a single, isolated

crime. We believe the record amply supports that sentence. Accordingly, we simply do

not conclude clearly and convincingly that the record fails to support the trial court’s

findings.

                                     III. Conclusion

       {¶ 12} The sole assignment of error is overruled. The trial court’s judgment is

affirmed.

                                     .............



DONOVAN, J. and TUCKER, J., concur.


Copies mailed to:

Mathias H. Heck
Alice B. Peters
Thomas M. Kollin
Hon. Mary Katherine Huffman
