[Cite as State v. Turner, 2017-Ohio-1314.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.       16CA0011-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JEFFREY A. TURNER                                    COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   15-CR-0165

                                 DECISION AND JOURNAL ENTRY

Dated: April 10, 2017



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Jeffery Turner, appeals from the judgment of the Medina

County Court of Common Pleas sentencing him to a maximum term of imprisonment for his

community control violation. We affirm.

                                                I.

        {¶2}     On March 25, 2015, the Medina County Grand Jury indicted Turner on the

following three counts: (I) one count of aggravated burglary in violation of R.C. 2911.11(A)(1),

a first-degree felony, with a repeat violent offender specification pursuant to R.C. 2941.149(A);

(II) one count of burglary in violation of R.C. 2911.12(A)(3), a third-degree felony; and (III) one

count of retaliation in violation of R.C. 2921.05(A), a third-degree felony. Turner initially

pleaded not guilty to the charges.

        {¶3}     On September 8, 2015, the trial court held a change of plea hearing. At the

hearing, Turner pleaded guilty to one count of retaliation in violation of R.C. 2921.05(A) in
                                                2


exchange for the State dismissing the remaining counts within the indictment. The trial court

accepted Turner’s guilty plea and ordered a presentence investigation report (“PSI”).           On

October 19, 2015, the trial court sentenced Turner to three years of community control with

certain conditions. As part of his community control, the trial court explicitly ordered in its

sentencing entry that Turner “shall abide by all laws” and further stated that “[u]pon any

violation of this sentence, the Court shall sentence the defendant to a prison term of 36 months.”

       {¶4}    Approximately three weeks after the trial court issued its sentencing entry, Turner

was charged in two new cases in the Medina Municipal Court. Specifically, on November 5,

2015, Turner was charged with criminal trespass in violation of R.C. 2911.21(A)(3), a fourth-

degree misdemeanor, and on November 10, 2015, Turner was charged with obstructing official

business in violation of R.C. 2921.31(A), a second-degree misdemeanor. Turner’s criminal

trespass charge was later amended to disorderly conduct. Turner ultimately pleaded no contest

to these charges. However, as a result of these new charges, Turner’s probation officer filed a

“Community Control Sanction/Violation of Supervision Complaint” against Turner in the

Medina County Court of Common Pleas.

       {¶5}    On January 19, 2016, the trial court held a probation violation hearing. At the

hearing, Turner admitted to both community control violations and the trial court found Turner

to be in violation of his probation. The trial court subsequently sentenced Turner to three years

in prison, as it had previously admonished Turner it would do in its prior sentencing entry.

Turner was given credit for 244 days already served. The trial court issued its sentencing entry

on January 21, 2016.

       {¶6}    Turner filed this timely appeal and raises one assignment of error for our review.
                                                  3


                                                 II.

                                       Assignment of Error

       The trial court abused its discretion by imposing the maximum three-year
       prison term for the Defendant-Appellant’s community control/probation
       violations, given the mitigating circumstances.

       {¶7}    In his sole assignment of error, Turner argues that the trial court erred by

imposing the maximum prison sentence for his community control violation. We disagree.

       {¶8}    In reviewing a felony sentence, “[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court

may vacate or modify a felony sentence on appeal only if it determines by clear and convincing

evidence” that: (1) “the record does not support the trial court’s findings under relevant statutes,”

or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016–

Ohio–1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶9}    The Supreme Court of Ohio has held that “[t]rial 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, paragraph seven of the syllabus. “[W]here the trial court does not put on the

record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is

presumed that the trial court gave proper consideration to those statutes.” (Alterations sic.) State

v. Steidl, 9th Dist. Medina No. 10CA0025–M, 2011–Ohio–2320, ¶ 13, quoting State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 18 fn. 4. “Unless the record shows that the court failed to

consider the factors, or that the sentence is ‘strikingly inconsistent’ with the factors, the court is
                                                 4


presumed to have considered the statutory factors if the sentence is within the statutory range.”

State v. Fernandez, 9th Dist. Medina No. 13CA0054–M, 2014–Ohio–3651, ¶ 8, quoting State v.

Boysel, 2d Dist. Clark No. 2013–CA–78, 2014–Ohio–1272, ¶ 13.

       {¶10} In the present case, the trial court explicitly admonished Turner in its October 20,

2015 sentencing entry that it would impose a 36-month prison term upon revocation of his

community control sanction. When the trial court subsequently revoked Turner’s community

control on January 21, 2016, it imposed that very sentence. There is no dispute that the trial

court’s prison sentence falls within the statutory sentencing range. See R.C. 2929.14(A)(3)(b)

(setting forth a range of nine to thirty-six months for certain third-degree felonies). There is also

no dispute that the trial court advised Turner regarding post-release control at the original

sentencing hearing. Although the record from the community control violation hearing reflects

that the trial court did not explicitly discuss the R.C. 2929.11 and R.C. 2929.12 factors during the

sentencing phase, the trial court is presumed to have considered these factors prior to imposing

sentence because the trial court’s sentence fell within the statutory range. See Steidl at ¶ 13; see

also State v. Mery, 5th Dist. Stark No. 2010-CA-00218, 2011-Ohio-1883, ¶ 34, citing State v.

Hines, 5th Dist. Ashland No. 2005-COA-046, 2006-Ohio-4053, ¶ 9 (“The trial court has full

discretion to impose a prison sentence within the statutory range and is no longer required to

make findings or give reasons for imposing maximum * * * or more than the minimum sentences

[at a second sentencing hearing following a defendant’s community-control violation].”).

       {¶11} Lastly, a review of the transcript from the January 19, 2016 sentencing hearing

reveals that the trial court reviewed the PSI report prior to imposing sentence. The record also

indicates that the trial court heard argument from Turner’s trial counsel concerning mitigating
                                                 5


circumstances in this matter, but ultimately imposed the maximum sentence after finding

Turner’s lengthy criminal history to be significant.

       {¶12} Accordingly, we conclude that the trial court did not err by imposing a 36-month

prison sentence in this matter as such a sentence is neither unwarranted nor clearly and

convincingly contrary to law. See State v. Braun, 9th Dist. Medina No. 15CA0084-M, 2016-

Ohio-5189, ¶ 9 (affirming the trial court’s imposition of a maximum 36-month prison sentence

for a community control violation where the sentence was “neither unwarranted nor clearly and

convincingly contrary to law.”).

       {¶13} Turner’s assignment of error is overruled.

                                                III.

       {¶14} With Turner’s sole assignment of error having been overruled, the judgment of

the Medina County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                6


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and SCOTT G. SALISBURY, Assistant
Prosecuting Attorney, for Appellee.
