[Cite as State v. Kerns, 2018-Ohio-3838.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 8-18-05

        v.

KODY A.M. KERNS,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR17-08-0272

                                      Judgment Affirmed

                          Date of Decision: September 24, 2018




APPEARANCES:

        Eric J. Allen for Appellant

        Holly N. Looser for Appellee
Case No. 8-18-05



ZIMMERMAN, J.

       {¶1} Defendant-appellant, Kody Kerns (“Kerns”), appeals the February 1,

2018 judgment entry of the Logan County Common Pleas Court sentencing him to

eighteen months in prison, in addition to twelve months in Logan County Jail. On

appeal, Kerns argues that the trial court erred when it considered his juvenile record

in determining his sentence. For the reasons set forth below, we affirm the judgment

of the trial court.

                           Facts and Procedural History

       {¶2} On August 8, 2017, Kerns was indicted on four criminal charges in

Logan County: Count One, Aggravated Burglary, in violation of R.C.

2911.11(A)(1), 2911.11(B), a felony of the first degree; Count Two, Assault, in

violation of R.C. 2903.13(A), a misdemeanor of the first degree; Count Three,

Assault, in violation of R.C. 2903.13(A), a misdemeanor of the first degree; and

Count Four, Criminal Damaging or Endangering, in violation of R.C.

2909.06(A)(1), a misdemeanor of the second degree. (Doc. 2).

       {¶3} At his arraignment on August 11, 2017, Kerns entered a plea of not

guilty to all charges. (Doc. 11). However, on November 28, 2017, Kerns withdrew

his not guilty pleas at a change of plea hearing in the trial court. At that hearing,

Kerns acknowledged executing a Petition to Enter a Plea of Guilty or No Contest,

which was admitted into evidence (Exhibit A), and entered pleas of guilty to:

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amended Count One, Trespass in a Habitation, in violation of R.C. 2911.12(B), a

felony of the fourth degree; Count Two, Assault in violation of R.C. 2903.13(A), a

misdemeanor of the first degree; and Count Three, Assault, in violation of R.C.

2903.13(A), a misdemeanor of the first degree. (Doc. 28). After Kerns pled to those

3 counts, the State moved to dismiss Count Four. The trial court accepted Kerns’

guilty pleas, ordered a Pre-Sentence Investigation and continued the matter for

sentencing. (Id.).

       {¶4} A sentencing hearing was held in the trial court on January 23, 2018,

wherein Kerns was sentenced to eighteen months in prison on Count One and six

months in jail (each) on Counts Two and Three. The trial court ordered the terms

to be served consecutively, for an aggregate sentence of 30 months of incarceration.

(Doc. 35).

       {¶5} Kerns timely filed a notice of appeal, raising the following assignment

of error.

                          ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY USING KERNS’ JUVENILE
       RECORD TO LENGTHEN HIS PRISON SENTENCE.

       {¶6} In his sole assignment of error, Kerns argues that the trial court erred

by imposing the maximum sentence on his Trespass in a Habitation conviction.

Specifically, Kerns contends that the trial court considered his juvenile record when

handing down his sentence.

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                                 Standard of Review

       {¶7} A sentence imposed by a trial court will not be disturbed absent a

showing by clear and convincing evidence that the sentence is unsupported by the

record; the procedure of the sentencing statutes was not followed or there was not a

sufficient basis for the imposition of a prison term; or that the sentence is contrary

to law. State v. Ward, 3d Dist. Crawford No. 3-17-02, 2017-Ohio-8518.

                                       Analysis

       {¶8} “ ‘The 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.

Castle, 2nd Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶26, quoting State v.

King, 2nd Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45. Nevertheless, when

exercising its sentencing 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. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38.

       {¶9} R.C. 2929.11 provides that sentences for a felony shall be guided by the

overriding purposes of felony sentencing: “to protect the public from future crime

by the offender and others and to punish the offender”. R.C. 2929.11(A). In order

to comply with those purposes and principles, R.C. 2929.12 instructs a trial court to

consider various factors set forth in the statute relating to the seriousness of the


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offender’s conduct and to the likelihood of the offender’s recidivism.          R.C.

2929.12(A) through (D). In addition, a trial court may consider any other factors

that are relevant in achieving the purposes and principles of sentencing. R.C.

2929.12(E). State v. Alselami, 3d Dist. Hancock No. 5-11-31, 2012-Ohio-987, ¶22.

       {¶10} Furthermore, R.C. 2953.08(G)(2) provides that when reviewing

felony sentences, a reviewing court may increase, reduce, or modify a sentence, or

it may vacate and remand the matter for resentencing, only if it clearly and

convincingly finds that either the record does not support the sentencing court’s

statutory findings or the sentence is contrary to law. State v. Martin, 8th Dist.

Cuyahoga No. 104354, 2017-Ohio-99, ¶7.

       {¶11} In the case sub judice, in addition to two Assault charges, Kerns was

convicted of Trespass in a Habitation, a felony of the fourth degree.           R.C.

2929.14(A)(4) provides “[f]or a felony of the fourth degree, the prison term shall be

six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,

seventeen, or eighteen months”. Thus, the trial court’s sentence (of 18 months) in

Count One was within the statutory range for a felony of the fourth degree.

However, Kerns argues that the trial court’s maximum sentence is clearly contrary

to law because the trial court “used his juvenile record as a heavy influence on

Kerns’ sentence” and “relied primarily on Kerns’ adjudications as a minor”.

(Appellant’s Brief at 3).


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        {¶12} In his argument, Kerns contends that the trial court’s consideration of

his juvenile adjudications was improper because it was used as evidence to lengthen

his sentence. We find Kerns’ argument to be misplaced.

        {¶13} “Quite simply, a juvenile adjudication is not a conviction of a crime

and should not be treated as one.” State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-

5504, ¶38. Accordingly, the Ohio Supreme Court has held that it “is a violation of

due process to treat a juvenile adjudication as the equivalent of an adult conviction

for purposes of enhancing a penalty for a later crime.” (Emphasis added.) (Id. at

¶1).

        {¶14} However, R.C. 2929.12(D) and (E) provide that a sentencing court

shall consider whether an offender had been adjudicated a delinquent child in

determining whether the offender is likely to commit future crimes. (Emphasis

added.) Thus, the trial court’s consideration of Kerns’ juvenile adjudications at

sentencing was not improper.1

        {¶15} Here, the trial court’s sentence for Kerns’ fourth degree felony

Trespass in a Habitation conviction is within the permissible statutory range under

R.C. 2929.14(A)(4). The trial court’s sentencing entry provides, in its relevant part,

as follows: “the Court FINDS that a prison term is consistent with the purposes and

principles of sentencing in R.C. 2929.11”. (Doc. 35). Moreover, the trial court


1
 Kerns’ reliance upon State v. Carnes, Slip Opinion No. 2018-Ohio-03256, is misplaced since there is no
evidence in the record, whatsoever, that any of his juvenile adjudications were uncounseled.

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found in its entry that consecutive sentences were “necessary to protect the public

from future crime and/or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public”. (Id.) Additionally, the trial court found that “[t]he

offender committed one or more of the multiple offenses while the offender was

awaiting trial or sentencing, * * *, or was under post-release control for a prior

offense”. (Id.)

          {¶16} In his argument, Kerns avers that it was obvious that the trial court

heavily considered his juvenile record when it made the following statement:

          “The report suggests that the defendant is not amenable to any
          available community control sanctions owing to his multiple
          juvenile adjudications * * *”. (Jan. 28, 2018 Tr. Pg. 11).

          {¶17} In our review of the record, we find this argument is misplaced. We

find the transcript contains sufficient evidence supporting the trial court’s sentence.

Specifically, at the sentencing hearing, in reviewing Kerns’ PSI, the trial court

stated:

          “He had just been released from prison not - - apparently just a
          week prior to this event * * *”. (Jan. 28, 2018 Tr. Pg. 6-7);

          “As an adult, moving into age 19 now, theft of drugs in
          Champaign County for which he went to West Central
          Community Based Correctional Facility. That involved two years
          of community control and he was released on electric monitoring
          to await entrance into a CBCF. He had a probation violation and
          was sent to ODRC. That - those - - that involved theft of Percocet.


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       In 2013, unauthorized use of a motor vehicle in Champaign
       County. Within five months of that, vandalism. This was a felony
       of the of the fifth degree now for which he received ten months in
       ODRC. He was originally placed on house arrest and outfitted
       with an ankle monitor to await his placement at the West Central
       facility, but while waiting for his bed date he cut the ankle monitor
       off and went whereabouts unknown, fled the State of Ohio and
       went to Florida, and even while he was awaiting sentence when he
       came back to Ohio he incurred a further felony offense in
       Clermont County, which was the theft of another motor vehicle,
       which he got one year in ODRC. (Id. at 8-9); and

       He ORAS score of this particular defendant is 36, considered to
       be very high. Which is - - this is the highest score I’ve ever seen,
       quite frankly.” (Id. at 11).

       {¶18} Based on the foregoing, we find the trial court considered multiple

statutory factors as set forth in R.C. 2929. As such, Kerns has failed to demonstrate

that the maximum sentence on his Trespass in a Habitation conviction, imposed by

the trial court, was clearly and convincingly contrary to law.

       {¶19} Therefore, because we find the trial court considered Kerns’ adult

criminal record, sufficient statutory sentencing factors, and that the sentence was

within the statutory range, we cannot find that the trial court erred in its sentencing

of Kerns. Accordingly, Kerns’ argument is not well-taken and his sole assignment

of error is overruled.




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       {¶20} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Logan County Common Pleas Court is affirmed.

                                                           Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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