[Cite as State v. Gaines, 2016-Ohio-4863.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103476




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   JAMELL M. GAINES
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-592611-A

        BEFORE: Celebrezze, J., Blackmon, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: July 7, 2016
ATTORNEY FOR APPELLANT

Michael H. Murphy
20325 Center Ridge Road
Suite 512
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
       Gregory J. Ochocki
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Jamell Gaines (“appellant”), brings this appeal

challenging the trial court’s sentence for aggravated menacing, domestic violence, having

weapons while under disability, and drug possession. Specifically, appellant argues that

the trial court’s sentence was not commensurate with his offenses.         After a thorough

review of the record and law, this court affirms.

                            I. Factual and Procedural History

       {¶2} The instant matter arose from an incident that occurred at appellant’s cousin’s

house where appellant was living at the time. On January 12, 2015, appellant got into an

argument with his relatives over an Xbox video game system. During the argument,

appellant picked up a loaded handgun and pointed it at his 12-year-old cousin. Police

responded to the house and found appellant’s gun and cocaine under a mattress.

       {¶3} In CR-15-592611-A, the Cuyahoga County Grand Jury returned a four-count

indictment charging appellant with (1) felonious assault, in violation of R.C.

2903.11(A)(2), with one- and three-year firearm specifications and a forfeiture

specification, (2) domestic violence, in violation of R.C. 2919.25(A), with one- and

three-year firearm specifications and a furthermore specification, (3) having weapons

while under disability, in violation of R.C. 2923.13(A)(3), with a forfeiture specification,

and (4) drug possession, in violation of R.C. 2925.11(A), with a one-year firearm

specification and a forfeiture specification.   Appellant pled not guilty to the indictment.
         {¶4} After exchanging discovery, the parties reached a plea agreement.

Appellant pled guilty to an amended Count 1, aggravated menacing, in violation of R.C.

2903.21(A), an amended Count 2, domestic violence, without the furthermore

specification, the having weapons while under disability count, and the drug possession

count.    The state nolled the firearm specifications charged in Counts 1, 2, and 4.      The

trial court accepted appellant’s guilty plea and set the matter for sentencing.

Furthermore, the trial court ordered a presentence investigation report (“PSI”) and

referred appellant to Treatment Accountability for Safer Communities (“TASC”) for a

drug and alcohol assessment.

         {¶5} The trial court held a sentencing hearing on August 10, 2015.            At the

sentencing hearing, the trial court heard from the prosecutor, appellant’s probation

officer, defense counsel, and appellant.     The trial court sentenced appellant to a prison

term of 180 days on Count 1, 180 days on Count 2, 30 months on Count 3, and 12 months

on Count 4.     The trial court ordered appellant to serve the counts concurrently, for a total

prison term of 30 months. The trial court advised appellant that postrelease control is

part of his sentence.

         {¶6} Appellant filed the instant appeal assigning one error for review:

         I. The sentence handed down by the trial court was not commensurate with
         the crime committed.

                                    II. Law and Analysis

         {¶7} In his sole assignment of error, appellant challenges the trial court’s sentence.

 Appellant argues that the trial court’s sentence is “arbitrary, capricious, and
disproportionate to the offenses that he pled guilty to.” Furthermore, appellant contends

that the trial court’s sentence is “clearly excessive in nature” and “more punitive in nature

than fair.”     Appellant suggests that either community control sanctions or a

community-based correctional facility (“CBCF”) program would have been more

appropriate than a prison sentence.        In support of his arguments, appellant focuses

exclusively on the trial court’s consideration, or lack thereof, of R.C. 2929.11 and

2929.12, which govern felony sentencing.1

       {¶8} When reviewing felony sentences, this court may increase, reduce, or modify

a sentence, or it may vacate and remand the matter for resentencing, only if we clearly

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

statutory findings or the sentence is contrary to law.      R.C. 2953.08(G)(2).     A sentence

is contrary to law if the sentence falls outside the statutory range for the particular degree

of offense or the trial court failed to consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v.

Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th

Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13. In State v. Marcum, Slip Opinion

No. 2016-Ohio-1002, the Ohio Supreme Court held that when a sentence is imposed

solely after consideration of the factors in R.C. 2929.11 and 2929.12, appellate courts

“may vacate or modify any sentence that is not clearly and convincingly contrary to law


       1 Although the trial court sentenced appellant on two first-degree misdemeanors, appellant
does not argue that the trial court failed to consider R.C. 2929.21 and 2929.22, which govern
misdemeanor sentencing.
only if the appellate court finds by clear and convincing evidence that the record does not

support the sentence.” Id. at ¶ 23.

      {¶9} When sentencing a defendant, the court must consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set

forth in R.C. 2929.12.         State v. Hodges, 8th Dist. Cuyahoga No. 99511,

2013-Ohio-5025, ¶ 7. R.C. 2929.11(A) provides that a sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing: (1) to protect the public from future crime by the offender and others; and (2)

to punish the offender using the minimum sanctions that the court determines will

accomplish those purposes.    The sentence imposed shall be “commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact on the victim, and

consistent with sentences imposed for similar crimes by similar offenders.”           R.C.

2929.11(B).

       {¶10} The sentencing court must consider the seriousness and recidivism factors

set forth in R.C. 2929.12 in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. Hodges at ¶ 9.       R.C.

2929.12 provides a non-exhaustive list of factors a trial court must consider when

determining the seriousness of the offense and the likelihood that the offender will

commit future offenses.

       {¶11} R.C. 2929.11 and 2929.12 are not fact-finding statutes.         Accordingly,

although the trial court must consider the principles and purposes of sentencing as well as
the mitigating factors as outlined above, the court is not required to use particular

language or make specific findings on the record regarding its consideration of those

factors.     State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31;

State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. Consideration of the

appropriate factors can be presumed unless the defendant affirmatively shows otherwise.

Id., citing State v. Stevens, 1st Dist. Hamilton No. C-130278, 2013-Ohio-5218, ¶ 12.

Moreover, a trial court’s statement in its sentencing journal entry that it considered the

required statutory factors is sufficient to fulfill a trial court’s obligations under R.C.

2929.11 and 2929.12.       State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302,

2015-Ohio-4074, ¶ 72, citing State v. Clayton, 8th Dist. Cuyahoga No. 99700,

2014-Ohio-112, ¶ 9.

        {¶12} In the instant matter, appellant asks this court to find his sentence to be

arbitrary, capricious, and disproportionate to his offenses. Appellant argues that the trial

court’s sentence is “clearly excessive in nature” and “contrary to the principles of fair

play and substantial justice.”   We disagree.

        {¶13} The trial court sentenced appellant within the statutory range.   Pursuant to

R.C. 2929.24(A)(1), first-degree misdemeanors carry a maximum jail sentence of 180

days.      R.C. 2929.14(A)(3)(b) provides, “[f]or a felony of the third degree * * * the

prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”

Furthermore, R.C. 2929.14(A)(5) provides, “[f]or a felony of the fifth degree, the prison

term shall be six, seven, eight, nine, ten, eleven, or twelve months.”
       {¶14} The trial court imposed the maximum 180-day sentence for aggravated

menacing and domestic violence, misdemeanors of the first degree.           The trial court

imposed 30 months for having weapons while under disability, a felony of the third

degree.    The trial court imposed the maximum 12-month sentence for drug possession, a

felony of the fifth degree.   There is no statutory requirement for findings in order to

impose the maximum sentences, and a trial court has the discretion to impose a prison

sentence within the statutory range.   “Trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or give

their reasons for imposing maximum * * * sentences.”        State v. Foster, 109 Ohio St.3d

1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus.2 Because the trial

court sentenced appellant within the statutory range, there was no error with the

imposition of a maximum sentence on Counts 1, 2, and 4.              See Sutton, 8th Dist.

Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 74.

       {¶15} Appellant further suggests that the trial court failed to consider R.C. 2929.11

and 2929.12 at sentencing. Specifically, appellant contends that the trial court failed to

state that it weighed the factors regarding his conduct and failed to state the necessary

language regarding whether the sentence was necessary to protect the public and punish

him.   Furthermore, appellant contends that the trial court failed to consider that he

accepted responsibility for his actions, and that the trial court neither considered his drug


       2 Superseded in part by statute as discussed in State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, and State v. Sergent, Slip Opinion No. 2016-Ohio-2696.
and alcohol problem nor the information provided in the TASC assessment.

       {¶16} The trial court’s sentencing journal entry states, in relevant part, “[t]he court

considered all required factors of the law. The court finds that prison is consistent with

the purpose of R.C. 2929.11.”

       {¶17} Aside from the trial court’s notation in the sentencing entry that it

“considered all required factors of the law” including, specifically, R.C. 2929.11, the

record in this case reflects that the trial court did, in fact, consider both R.C. 2929.11 and

2929.12 when sentencing appellant.       At the sentencing hearing, the trial court heard

from the prosecutor, appellant’s probation officer, defense counsel, and appellant.

       {¶18} First, the prosecutor recommended that the trial court sentence appellant to

prison based on his “extensive criminal history.” Second, appellant’s probation officer

stated that appellant violated the terms of his community control sanctions in Cuyahoga

C.P. No. CR-13-572694-A on three occasions: (1) he was discharged from the CBCF

program, (2) he tested positive for marijuana, and (3) he tested positive for marijuana and

alcohol.   In Cuyahoga C.P. No. CR-13-572694-A, appellant pled guilty to having

weapons while under disability in violation of R.C. 2923.13(A)(2).

       {¶19} Third, defense counsel stated that appellant “needs a lot of work to get

himself to a place where he is a productive member of society.”          Counsel stated that

appellant is “very bright.”   Counsel stated that appellant’s parents had extensive criminal

records and, as a result, he essentially “was on his own[.]” Counsel stated that appellant

has an alcohol and drug problem and that the TASC assessment revealed alcohol,
cannabis, and hallucinogen dependence.          Counsel stated that appellant has been

attending one Alcoholics Anonymous meeting per week. Counsel stated that appellant

had been sentenced to prison before and that prison “doesn’t seem to work” for him.

Accordingly, counsel requested that the trial court consider continuing appellant on

community control sanctions.

         {¶20} Fourth, appellant acknowledged that he has a problem with alcohol and

drugs.    Furthermore, he acknowledged that he has an anger management problem, and

stated that his anger problem is exacerbated when he consumes alcohol.            Appellant

stated that his anger problem is entirely drug- or alcohol-related.

         {¶21} The trial court acknowledged that it had previously given appellant “two

shots at CBCF.”      The trial court stated that it reviewed the PSI and that appellant

appeared to be “out of control” when he committed the offenses.        The trial court noted

that appellant’s conduct — drawing a loaded firearm in the presence of children and other

family members — created a “dangerous situation.”             Furthermore, the trial court

emphasized that at the time that appellant committed the offenses, he was on probation

for having weapons while under disability.     The trial court stated that appellant appeared

to have “a lot of anger management problems.”

         {¶22} In imposing appellant’s sentence, the trial court stated that it sympathized

with appellant’s situation.    The trial court stated that it “look[ed] at the sentencing

guidelines” and considered “the aspects of [the case] that make it more serious, [and] the

aspects that make it less serious[.]” The trial court stated that it considered appellant’s
criminal history. The trial court concluded that a prison sentence was appropriate.

         {¶23} After reviewing the record, we cannot say that the trial court’s sentence is

clearly and convincingly not supported by the record.          Before imposing appellant’s

sentence, the trial court considered the PSI report, appellant’s criminal history, and the

facts adduced at the sentencing hearing. The trial court sufficiently set forth its findings

in the record for the sentence it imposed.

         {¶24} We further find no merit to appellant’s argument that the trial court failed to

consider the relevant statutory factors under R.C. 2929.11 and 2929.12 at sentencing.

The trial court was neither required to use particular language nor make specific findings

on the record regarding its consideration of R.C. 2929.11 and 2929.12.             Appellant

cannot affirmatively show that the trial court failed to consider R.C. 2929.11 and 2929.12

at sentencing.

         {¶25} Accordingly, appellant’s sole assignment of error is overruled.

                                       III. Conclusion

         {¶26} The trial court’s sentences for aggravated menacing, domestic violence,

having weapons while under disability, and drug possession were within the statutory

range.    The trial court’s sentencing journal entry states, “[t]he court considered all

required factors of the law. The court finds that prison is consistent with the purpose of

R.C. 2929.11.”       Furthermore, the record in this case reflects that the trial court

considered R.C. 2929.11 and 2929.12 when sentencing appellant.                   Accordingly,

appellant cannot affirmatively show that the trial court failed to consider R.C. 2929.11
and 2929.12.

      {¶27} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


_______________________________________________
FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR
