[Cite as State v. Lodwick, 2018-Ohio-3710.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                   SCIOTO COUNTY

STATE OF OHIO,                  :
                                :   Case No. 17CA3812
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
CHRISTOPHER R. LODWICK,         :
                                :
     Defendant-Appellant.       :   Released: 09/14/18
_____________________________________________________________
                          APPEARANCES:

Matthew F. Loesch, Portsmouth, Ohio, for Appellant.

Shane A. Tieman, Scioto County Prosecuting Attorney, Portsmouth, Ohio,
for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a Scioto County Court of Common Pleas

judgment entry sentencing Appellant, Christopher Lodwick, to maximum

and consecutive prison terms totaling eighteen years. He was found guilty

by a jury of one count of burglary, a second-degree felony in violation of

R.C. 2911.12(A)(2) and (D), and was determined by the trial court to be a

repeat violent offender pursuant to R.C. 2941.149(A). On appeal, Appellant

contends that 1) his conviction for second-degree felony burglary was

against the manifest weight and sufficiency of the evidence and, as such, his
Scioto App. No. 17CA3812                                                       2

repeat violent offender specification fails as well; and 2) the trial court

abused its discretion in sentencing him to the maximum time allowed by law

in the instant case.

      {¶2} Because we have concluded Appellant's argument simply

challenges the sufficiency of the evidence and not the manifest weight of the

evidence, and because Appellant's conviction for second-degree felony

burglary was supported by sufficient evidence, we find no merit to the

arguments raised in his first assignment of error. Thus, it is overruled.

Further, because we have concluded the maximum sentence imposed by the

trial court for Appellant's second-degree felony burglary conviction was

supported by the record and was not contrary to law, we overrule Appellant's

second assignment of error, in part. We likewise affirm the trial court's

determination that Appellant was a repeat violent offender. However,

because we have concluded the record fails to show any evidence that

Appellant caused, threatened or attempted to cause serious physical harm to

a person during the incident forming the basis for the burglary charge, the

trial court's imposition of a ten-year maximum prison term, which was

ordered to be served consecutively to the prison term imposed on the

burglary conviction, was contrary to law. Thus, we find some merit to the

second assignment of error raised by Appellant and it is sustained, in part.
Scioto App. No. 17CA3812                                                        3

      {¶3} Based upon the foregoing, Appellant's conviction for second-

degree felony burglary, as well as the eight-year maximum sentence

imposed for that conviction are affirmed. However, because the ten-year

maximum sentence imposed in connection with repeat violent offender

determination is contrary to law, it must be reversed and vacated.

Accordingly, the decision of the trial court is affirmed in part, reversed in

part, and vacated in part.

                                    FACTS

      {¶4} Appellant, Christopher Lodwick, was indicted in the Scioto

County Court of Common Pleas on May 12, 2017, for one count of burglary,

a second-degree felony in violation of R.C. 2911.12(A)(1) and (D). The

indictment also included a repeat violent offender specification pursuant to

R.C. 2941.149. A superseding indictment was filed on September 5, 2017,

amending the burglary count to charge a violation of R.C. 2911.12 (A)(2)

and (D) rather than (A)(1) and (D). The charges in the indictment stemmed

from an incident occurring on May 1, 2017, in which the home of Douglas

Hood and Nikki Harris, located in Sciotoville, Ohio, was burglarized at

approximately 9:30 in the morning on a week day.

      {¶5} The matter proceeded to a jury trial on September 18, 2017.

One of the victims, homeowner Douglas Hood, testified for the State. Mr.
Scioto App. No. 17CA3812                                                       4

Hood testified that he and his girlfriend Nikki Harris lived at the residence at

issue and used it as their primary residence. He testified that although he

was at work on the day in question, and that he usually is gone during

weekdays from 7:30 a.m. to 3:00 p.m. attending his job as a teacher's aide,

he sometimes comes home for lunch at 10:30 or 11:00 a.m. He also testified

that he is free to come home if he needs to during the day, to get items he

may have forgotten, which he does on occasion. He further testified Ms.

Harris does not work and is usually home during the day, but that on the day

in question she had left the house to attend a doctor's appointment not far

from home, and had also stopped on her way home to pick up her new

glasses. On cross examination, Mr. Hood testified he owns two cars, that

they are usually parked in the driveway, and that neither car was present in

the driveway on the day of the burglary.

      {¶6} Mr. Hood further testified that he had just completed a call with

Ms. Harris, where she advised him she was on her way home from the

doctor but was stopping to pick up her glasses, when he received a

notification on his mobile phone alerting him that his security cameras at

home had detected movement inside his home. Upon reviewing the cameras

he identified Appellant, who was his neighbor, as the person inside his

home. Upon arriving at his house, Mr. Hood found that his front door had
Scioto App. No. 17CA3812                                                       5

been kicked in and multiple Crown Royal bags that had been filled with

coins were missing. Those bags and coins were ultimately recovered by law

enforcement in Appellant's residence.

      {¶7} The jury found Appellant guilty of second-degree felony

burglary, as charged in the indictment, and then the trial court, after

receiving additional testimony and evidence regarding Appellant's criminal

history, determined Appellant was a repeat violent offender. The trial court

thereafter sentenced Appellant to an eight-year maximum prison term on the

burglary conviction, sentenced him to a ten-year maximum prison term on

the repeat violent offender specification, and ordered the sentences to be

served consecutively for an aggregate prison sentence of eighteen years.

Appellant now appeals his conviction and sentences, setting forth two

assignments of error for our review.

                        ASSIGNMENTS OF ERROR

“I.   APPELLANT'S CONVICTION FOR FELONY 2 BURGLARY
      WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
      AND SUFFICIENCY OF THE EVIDENCE AND AS SUCH
      APPELLANT'S REPEAT VIOLENT OFFENDER SPECIFICATION
      WOULD FAIL AS WELL.

II.   THE TRIAL COURT ABUSED ITS DISCRETION IN
      SENTENCING APPELLANT TO THE MAXIMUM TIME
      ALLOWED BY LAW IN THE INSTANT CASE.”
Scioto App. No. 17CA3812                                                         6

                        ASSIGNMENT OF ERROR I

      {¶8} In his first assignment of error, Appellant contends that his

conviction for second-degree felony burglary was against the manifest

weight of the evidence and was not supported by sufficient evidence. He

further contends that because the State failed to sufficiently prove he

committed second-degree felony burglary, as opposed to third-degree felony

burglary, the repeat violent offender specification fails as well. The State

contends that it presented evidence sufficient for the jury to find Appellant

guilty of second-degree felony burglary and, in light of Appellant's criminal

history which includes three additional second-degree felony burglary

convictions in the preceding twenty years, the repeat violent offender

specification was applicable and appropriate.

      {¶9} “When a court reviews a record for sufficiency, ‘[t]he relevant

inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.’ ” State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146; quoting

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus (1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).

“The court must defer to the trier of fact on questions of credibility and the
Scioto App. No. 17CA3812                                                       7

weight assigned to the evidence.” State v. Dillard, 4th Dist. Meigs No.

13CA9, 2014-Ohio-4974, ¶ 27; citing State v. Kirkland, 140 Ohio St.3d 73,

2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.

      {¶10} In determining whether a criminal conviction is against the

manifest weight of the evidence, an appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the

evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. Further,

“[w]hen an appellate court concludes that the weight of the evidence

supports a defendant's conviction, this conclusion necessarily also includes a

finding that sufficient evidence supports the conviction.” State v. Adkins, 4th

Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶ 27.

      {¶11} Appellant was convicted of burglary, a second-degree felony in

violation of R.C. 2911.12(A)(2) and (D). R.C. 2911.12 provides, in

pertinent part, as follows:

      "(A) No person, by force, stealth, or deception, shall do any of
      the following:

      ***
Scioto App. No. 17CA3812                                                     8

      (2) Trespass in an occupied structure or in a separately secured
      or separately occupied portion of an occupied structure that is a
      permanent or temporary habitation of any person when any
      person other than an accomplice of the offender is present or
      likely to be present, with purpose to commit in the habitation
      any criminal offense;

      ***

      (D) Whoever violates division (A) of this section is guilty of
      burglary. A violation of division (A)(1) or (2) of this section is
      a felony of the second degree. A violation of division (A)(3) of
      this section is a felony of the third degree." (Emphasis added).

      {¶12} A repeat violent offender specification was also contained in

the indictment filed against Appellant and after being found guilty of the

second-degree felony burglary charge by the jury, the trial court determined

that Appellant was a repeat violent offender. The relevant version of R.C.

2929.01(CC)(1)(a) defines a "repeat violent offender" as follows:

      "(CC) 'Repeat violent offender' means a person about whom
      both of the following apply:

      (1) The person is being sentenced for committing or for
          complicity in committing any of the following:

      (a) Aggravated murder, murder, any felony of the first or
          second degree that is an offense of violence, or an attempt
          to commit any of these offenses if the attempt is a felony of
          the first or second degree." (Emphasis added).

      ***
Scioto App. No. 17CA3812                                                                           9

        (2) The person previously was convicted of or pleaded guilty to
        an offense described in division (CC)(1)(a) or (b) of this
        section."1

        {¶13} Further, R.C. 2941.149, entitled "Specification concerning

repeat violent offenders," provides, in pertinent part, as follows:

        "(A) The determination by a court that an offender is a repeat
        violent offender is precluded unless the indictment, count in the
        indictment, or information charging the offender specifies that
        the offender is a repeat violent offender. The specification shall
        be stated at the end of the body of the indictment, count, or
        information, and shall be stated in substantially the following
        form:

        'SPECIFICATION (or, SPECIFICATION TO THE FIRST
        COUNT). The Grand Jurors (or insert the person's or
        prosecuting attorney's name when appropriate) further find and
        specify that (set forth that the offender is a repeat violent
        offender).' ”

        {¶14} Here, the repeat violent offender specification was properly

included in the indictment, as well as the superseding indictment, as required

by R.C. 2941.149. Appellant only argues the repeat violent offender

determination fails to the extent this Court reverses his conviction for

second-degree felony burglary. Further, it appears Appellant conceded

during trial, and now concedes on appeal, that there was sufficient evidence

to convict him of third-degree felony burglary. In fact, Appellant argued for

and received a lesser-included offense instruction based upon 1) the fact that

1
 The second-degree burglary charge of which Appellant was convicted is defined as an "offense of
violence" in R.C. 2901.01(A)(9)(a), as were Appellant's three prior burglary convictions.
Scioto App. No. 17CA3812                                                      10

no one was present during the burglary; and 2) his contention that the State

failed to prove that someone was likely to be present, which is a requirement

to establish second-degree felony burglary, as opposed to third-degree

felony burglary.

      {¶15} This Court was presented with a similar argument regarding

the "likely to be present" element required to be proven for second-degree

felony burglary in State v. Griffith, 4th Dist. Pickaway No. 17CA4, 2017-

Ohio-8855. Initially we note that in Griffith, we determined that an

argument that the State failed to prove anyone was “present or likely to be

present” at the victims' home at the time of the offense in essence challenges

the sufficiency of the evidence and not the weight of the evidence. Id. at ¶ 4

and ¶ 34. We are faced with the same limited argument here. Thus, our

analysis under Appellant’s first assignment of error is limited to a

determination of whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.

      {¶16} In Griffith, the victim (West) and his family left their house at

separate times on the day of the burglary with a plan to camp in an adjacent

county for the weekend. Griffith at ¶ 8. However, on the evening of the first

day of the camping trip, the victim decided to drive back to his house to
Scioto App. No. 17CA3812                                                     11

check on the house and take a shower. Id. at ¶ 9. When he arrived home, the

victim was able to view, through a panel in the front door, Griffith (who was

his next door neighbor) inside the house. Id. This Court upheld Griffith’s

conviction for second-degree felony burglary, finding that the State

sufficiently proved someone was likely to present in the house at the time of

the burglary. Id. at ¶ 38.

      {¶17} In reaching our decision, we reasoned as follows:

      “ ‘In determining what constitutes sufficient proof that a person
      is “likely to be present,” the Ohio Supreme Court held the
      [S]tate meets its burden if it presents evidence ‘that an occupied
      structure is a permanent dwelling house which is regularly
      inhabited, that the occupying family was in and out on the day
      in question, and that such house was burglarized when the
      family was temporarily absent[.] ” ’ State v. Edwards, 4th Dist.
      Jackson No. 06CA5, 2006–Ohio–6288, ¶ 12, quoting State v.
      Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336 (1977), paragraph
      one of the syllabus (construing former R.C. 2911.11(A)(3)); see
      also State v. Fowler, 4 Ohio St.3d 16, 19, 445 N.E.2d 1119
      (1983). ‘The Court in Kilby stated that the “likely to be present”
      requirement is intended to target “the type and use of the
      occupied structure and not literally whether individuals will be
      home from work or play at a particular time.” ’ Id., quoting
      Kilby at 25–26.”

As a result, we determined in Griffith, based upon the facts before us, as

follows:

      “ * * * the jury was free to infer from the evidence that the
      West family was likely to be present at their home at the time of
      the burglary. The State presented evidence that the occupied
      structure was the permanent dwelling house of the West family,
      who regularly inhabited it; that the Wests were in and out of the
Scioto App. No. 17CA3812                                                   12

      house on the day in question and temporarily absent when their
      home was burglarized, with Mr. West returning as the offense
      was occurring. There is no evidence that they were regularly
      gone from home for an extended period of time or were
      routinely absent from the home at the time the burglary
      occurred. Accord, Edwards at ¶ 13.”

      {¶18} The First District Court of Appeals also recently considered a

case involving the question of whether anyone was “likely to be present” at

the time of a burglary. State v. Braden, --- N.E.3d ---, 2018-Ohio-563. The

Braden court explained as follows in considering the question of whether

someone is likely to present in the context of the commission of a burglary

offense:

      “The issue is not whether the burglar subjectively believed that
      persons were likely to be there, but whether it was objectively
      likely.” State v. Cravens, 1st Dist. Hamilton No. C–980526,
      1999 WL 567098, *1 (June 25, 1999). This court has held that
      “objectively likely to be present” means the “probability or
      improbability of actual occupancy which in fact exists at the
      time of the offense, determined by all the facts surrounding the
      occupancy.” In re Meatchem, 1st Dist. Hamilton No. C-050291,
      2006-Ohio-4128, 2006 WL 2320787, ¶ 16. “That is, there must
      be a greater than 50% likelihood that someone will be in the
      dwelling at the time of the burglary.” Id. at ¶ 17.

      {¶19} The court’s analysis included a detailed list of cases providing

examples of fact patterns leading to either affirmances or reversals of

findings that someone was, or was not, “likely to be present.” For instance,

the Braden court stated as follows:
Scioto App. No. 17CA3812                                                  13

     “Ohio courts have decided a number of cases describing the
     type of evidence that the state can offer to establish the ‘likely
     to be present’ element. See, e.g., State v. Kilby, 50 Ohio St.2d
     21, 361 N.E.2d 1336 (1977) (likely to be present element
     satisfied where home's occupants were across the street at a
     neighbor's house); State v. Weber, 10th Dist. Franklin No.
     97APA03–322, 1997 WL 798299 (Dec. 23, 1997) (likely to be
     present element satisfied where home owners were away on
     vacation, but others had permission to be in the house and
     neighbor was watching property while owners were absent);
     State v. Beverly, 2d Dist. Clark No. 2005 CA 85, 2007-Ohio-
     1028, 2007 WL 706806 (likely to be present element satisfied
     where occupants were away from the house for about one and a
     half hours during the evening); State v. Young, 8th Dist.
     Cuyahoga No. 87613, 2006-Ohio-5723, 2006 WL 3095685
     (likely to be present element satisfied where evidence showed
     that occupants did not work on weekends, and burglary
     occurred on a Sunday); State v. Baker, 12th Dist. Butler No.
     CA2003-01-016, 2003-Ohio-5986, 2003 WL 22532913 (likely
     to be present element satisfied where occupant was a retiree
     with no fixed schedule); State v. Palmer, 8th Dist. Cuyahoga
     No. 89957, 2008-Ohio-2937, 2008 WL 2424455 (likely to be
     present element satisfied where evidence established burglary
     occurred close to the time occupants would have left for work).
     Critically, where the occupants of a house are almost always
     absent as part of their fixed work schedule, they are not likely
     to be present during their regular working hours. See, e.g., State
     v. Frock, 2d Dist. Clark No. 2004 CA 76, 2006-Ohio-1254,
     2006 WL 677715 (likely to be present element not satisfied
     where occupant regularly came home from work to walk her
     dog around 2 p.m., and burglary occurred between 1:00 p.m.
     and 1:30 p.m.); State v. Brown, 1st Dist. Hamilton No. C–
     980907, 2000 WL 492054 (Apr. 28, 2000) (likely to be present
     element not satisfied where burglary occurred during the
     occupant's workday, and no evidence was offered that the
     occupant ever came home during his workday); State v.
     Lockhart, 115 Ohio App.3d 370, 685 N.E.2d 564 (8th
     Dist.1996) (likely to be present element not satisfied where
     home's occupant testified that burglary occurred while she was
Scioto App. No. 17CA3812                                                       14

      at work, and that she did not return to her house at varying
      times).” Braden at ¶ 11-12.

      {¶20} Here, the evidence presented by the State demonstrated that the

victims, Douglas Hood and Nikki Harris, lived in a house located at 5531

Wilson Avenue, Sciotoville, Ohio and used that house as their primary

residence. The State presented the testimony of Hood which explained that

he typically works from 7:30 a.m. to 3:00 p.m at CAPE Alternative School,

which is located approximately ten minutes from his home. Mr. Hood

testified that though he is typically at work during those hours, he is free to

leave work at lunch, which he sometimes does between 10:30 and 11:00

a.m. He also testified that he is free to leave work and come home any time

during his work day, if he needs to run an errand or has forgotten something

at home. Importantly, Hood also testified that his girlfriend, Nikki Harris,

does not work and is usually home during the day. He testified that the only

reason she was not present on the day of the burglary was because she had

gone to a doctor’s appointment in Portsmouth, Ohio, which is located only a

short distance from their home, and had stopped on the way home to pick up

her new glasses. Appellant provided no evidence to refute Hood’s

testimony, but was able, upon cross-examination of Hood, to establish that

Hood owned two cars, which were usually parked in the driveway, and that

both cars were gone at the time of the burglary.
Scioto App. No. 17CA3812                                                      15

      {¶21} Based upon the above testimony offered at trial by the State,

we believe the State sufficiently proved that Hood and Harris used the

residence at issue as their primary dwelling and regularly inhabited it.

Further, the evidence presented by the State demonstrated that Nikki Harris

was usually home at the time of the burglary, but that she was in and out on

the day in question and was temporarily absent at the time Appellant

committed the burglary. There is no evidence indicating Harris was gone

from home for an extended period of time or was routinely absent from the

home at the time the burglary occurred. Thus, we conclude the jury’s

determination that someone was likely to be present in the residence at the

time of the burglary was supported by sufficient evidence.

      {¶22} In reaching our decision, we reject Appellant’s argument

suggesting that because there were no vehicles in the driveway, it was

reasonable to conclude the house was “entirely vacant during the course of

the burglary.” The evidence introduced at trial indicated Appellant was the

next door neighbor of the victims, that the victims had two cars, and that

neither car was in the driveway at the time of the burglary. However, even if

Appellant subjectively thought no one would be present in the home, as set

forth above, “[t]he issue is not whether the burglar subjectively believed that

persons were likely to be there, but whether it was objectively likely.” State
Scioto App. No. 17CA3812                                                                                16

v. Braden, supra, at ¶ 17; quoting State v. Cravens, supra, at *1.2 Based

upon the testimony of Hood, it was objectively likely that Nikki Harris was

likely to be present in the residence at the time of the burglary, as she used

the residence as her primary dwelling, she did not work, she had not been

gone from the residence for an extended period of time, she was not

routinely absent from the home at the time of the burglary, and she was in

and out and only temporarily absent at the time the burglary occurred. As

such, in our view, the State met it burden. Thus, we find no merit in this

argument raised under Appellant’s first assignment of error and therefore

affirm Appellant’s conviction for second-degree felony burglary.

        {¶23} Appellant further argues that the trial court erred in

determining he was a repeat violent offender. His argument is solely based

upon the premise that his conviction for second-degree felony burglary

should be reversed. Consequently, because we have affirmed, rather than

reversed, that conviction, Appellant’s arguments regarding the trial court’s

repeat violent offender determination are without merit. However, as will be

discussed more fully below under Appellant's second assignment of error,

although we find the trial court properly classified Appellant as a repeat

2
  Here, there was no evidence introduced at trial indicating what Appellant subjectively thought one way or
another regarding whether anyone was present or likely to be present at the time of the burglary. Appellant
did not testify or present any other evidence during trial. Further, only the statements of defense counsel
serve as the basis for the suggestion that because no cars were in the driveway, Appellant would have
thought the home was vacant. Statements by counsel, of course, are not evidence.
Scioto App. No. 17CA3812                                                     17

violent offender, the sentence imposed in connection with that classification

is contrary to law and must be reversed and vacated.

                       ASSIGNMENT OF ERROR II

      {¶24} In his second assignment of error, Appellant contends that the

trial court abused its discretion in sentencing him to the maximum time

allowed by law. As set forth above, Appellant was sentenced to an eight-

year maximum prison term for his second-degree felony burglary conviction

and he was sentenced to a ten-year maximum prison term on the repeat

violent offender specification. The trial court further ordered that these

sentences be served consecutively resulting in an aggregate prison sentence

of eighteen years. The State contends the trial court did not abuse its

discretion in sentencing Appellant, and further contends that Appellant’s

sentence was not contrary to law.

      {¶25} We must initially note that we reject Appellant's argument that

we review a trial court's imposition of felony sentences using the abuse-of-

discretion standard of review. In State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, the court held “that appellate courts

may not apply the abuse-of-discretion standard in sentencing-term

challenges.” Accord State v. Campbell, 4th Dist. Adams No. 15CA1012,

2016-Ohio-415, ¶ 11. Additionally, R.C. 2953.08(G)(2) explicitly states that
Scioto App. No. 17CA3812                                                      18

an “appellate court's standard for review [when considering sentencing-term

challenges] is not whether the sentencing court abused its discretion.”

Instead, the statute states that reviewing courts may increase, reduce,

modify, or vacate and remand a challenged felony sentence if the court

clearly and convincingly finds either that (1) “the record does not support

the sentencing court's findings” under certain statutory provisions, or (2)

“the sentence is otherwise contrary to law.” Accord State v. Pulliam, 4th

Dist. Scioto No. 16CA3759, 2017-Ohio-127, ¶ 6; State v. Perry, 4th Dist.

Pike No. 16CA863, 2017-Ohio-69, ¶ 13. Thus, Appellant's assertion that we

apply the abuse-of-discretion standard when reviewing trial court felony

sentencing decisions is incorrect.

      {¶26} Appellant argues the trial court was required to state its reasons

for imposing maximum and consecutive sentences, and that it appears the

trial court’s sole reason for sentencing Appellant to maximum sentences was

due to his criminal history, which Appellant contends is insufficient to

impose maximum sentences. Appellant also references the fact that the trial

judge commented on the fact that he himself had been a victim of theft

offenses, and argues such comments can be construed as evidence the

sentence imposed by the trial court was vindictive. Appellant also cites the

fact that there was no physical harm or threat of harm in this case, and states
Scioto App. No. 17CA3812                                                        19

that he simply committed a crime of opportunity to fuel his drug habit,

noting his long history of substance abuse. Appellant concedes that the trial

court recited “boilerplate sentencing language prior to imposing the

maximum[,]” but argues “it does not appear that the trial court truly took the

sentencing factors into consideration.”

      {¶27} We initially consider the eight-year maximum prison term

imposed on the burglary conviction. As set forth above, we affirmed

Appellant’s conviction for second-degree felony burglary, which included,

as an element of the offense, that someone was either present, or likely to be

present, when the burglary occurred. The fact that no one was present when

the burglary occurred in this case was merely fortuitous, as Nikki Harris,

though usually at home, happened to be away at a doctor’s appointment at

the time the burglary was committed. In our view, such fortune should not

inure to the benefit of Appellant or result in a more lenient sentence.

Further, the record before us indicates that aside from the burglary at issue

herein, Appellant had been previously convicted of three counts of second-

degree felony burglary, one count of third-degree felony attempted burglary,

and one count of fifth-degree felony attempted burglary. As such, Appellant

has a lengthy criminal history and a propensity for committing burglaries.
Scioto App. No. 17CA3812                                                     20

      {¶28} Here, it appears that the sentence Appellant received on the

second-degree felony burglary conviction was within the statutory range for

the offense, and thus it cannot be said that the length of the sentence is

contrary to law. Further, and importantly, maximum sentences do not

require specific findings. State v. McClain, 4th Dist. Pickaway No. 13CA17,

2014–Ohio–4192, ¶ 36; State v. Lister, 4th Dist. Pickaway No. 13CA15,

2014–Ohio–1405, ¶ 10; citing State v. White, 2013–Ohio–4225, 997 N.E.2d

629, ¶ 7 (1st Dist.). Although trial courts have full discretion to impose any

term of imprisonment within the statutory range, they must consider the

sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C.

2929.12. Lister, supra, at ¶ 14. H.B. 86 amended R.C. 2929.11 and states:

      “(A) A court that sentences an offender for a felony shall be
      guided by the overriding purposes of felony sentencing. The
      overriding purposes of felony sentencing are to protect the
      public from future crime by the offender and others and to
      punish the offender using the minimum sanctions that the court
      determines accomplish those purposes without imposing an
      unnecessary burden on state or local government resources. To
      achieve those purposes, the sentencing 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.”

R.C. 2929.12 also 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. Lister, supra, at ¶ 15.
Scioto App. No. 17CA3812                                                       21

      {¶29} While the trial court is required to consider the R.C. 2929.12

factors, “the court is not required to ‘use specific language or make specific

findings on the record in order to evince the requisite consideration of the

applicable seriousness and recidivism factors (of R.C. 2929.12.)’ ” State v.

Latimer, 11th Dist. Portage No. 2011–P–0089, 2012–Ohio–3745, ¶ 18;

quoting State v. Webb, 11th Dist. Lake No. 2003–L–078, 2004–Ohio–4198,

¶ 10; quoting State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793

(2000). The Supreme Court of Ohio in State v. Adams, 37 Ohio St.3d 295,

525 N.E.2d 1361 (1988), has held: “[a] silent record raises the presumption

that a trial court considered the factors contained in R.C. 2929.12.” Latimer,

supra; quoting Adams at paragraph three of the syllabus. Further, “[a]

maximum sentence is not contrary to law when it is within the statutory

range and the trial court considered the statutory principles and purposes of

sentencing as well as the statutory seriousness and recidivism factors.” State

v. Talley, 74 N.E.3d 868, 2016–Ohio–8010, ¶ 15 (2nd Dist.).

      {¶30} A review of the record reveals that although the trial court did

not specifically state its reasons for imposing a maximum sentence on the

burglary conviction, it expressly stated its consideration of the required

principles and purposes of felony sentences. Further, in addition to

enumerating the applicable sentencing statutes and factors, the trial court
Scioto App. No. 17CA3812                                                         22

engaged in an on-the-record colloquy with Appellant regarding his extensive

criminal history, the fact that the court had given him multiple chances and

that Appellant had been offered multiple treatment options in the past,

including while he was previously in prison, but that he continued to re-

offend. Based on the foregoing, it is clear that the trial court appropriately

considered the principles and purposes of felony sentences, as set forth in

R.C. 2929.11, including the seriousness and recidivism factors contained in

R.C. 2929.12, as well as the record before it, which included Appellant’s

extensive criminal history and recidivism. Thus, the trial court's imposition

of this maximum sentence is supported by the record, and is not clearly and

convincingly contrary to law.

      {¶31} We must next consider the ten-year maximum prison term

imposed as a result of the repeat violent offender determination made by the

trial court, which was ordered to be served consecutively to the prison term

imposed on the burglary conviction. As set forth above, the indictment

herein contained a repeat violent offender specification pursuant to R.C.

2941.149(A). Without going into more detail than necessary, the

specification alleged Appellant had previously been convicted of three

second-degree felony counts of burglary, one third-degree felony count of

attempted burglary and one fifth-degree felony count of attempted burglary,
Scioto App. No. 17CA3812                                                  23

all occurring between the years 2003 and 2012. Further, after the jury found

Appellant guilty of the current second-degree burglary count contained

herein, the State introduced evidence through Investigator Charles and

introduced as exhibits certified copies of each of the convictions. However,

there was no testimony or other evidence introduced by the State regarding

any serious physical harm to a person which actually occurred or was

attempted or threatened in connection with the current burglary charge or the

prior burglary convictions. Ultimately, the trial court determined Appellant

was a repeat violent offender and sentenced him to a ten-year maximum

prison term.

      {¶32} Once again, the relevant version of R.C. 2929.01(CC)(1)(a)

defines a "repeat violent offender" as follows:

      "(CC) 'Repeat violent offender' means a person about whom both of
      the following apply:

      (1) The person is being sentenced for committing or for
          complicity in committing any of the following:

      (a) Aggravated murder, murder, any felony of the first or
          second degree that is an offense of violence, or an attempt
          to commit any of these offenses if the attempt is a felony of
          the first or second degree." (Emphasis added).

      ***
Scioto App. No. 17CA3812                                                                                 24

         (2) The person previously was convicted of or pleaded guilty to
         an offense described in division (CC)(1)(a) or (b) of this
         section."3

         {¶33} Further, R.C. 2929.14 governs felony sentencing and prison

terms and provides in section (B)(2)(b)(i-iii), as follows with respect to the

imposition of a prison sentence for a repeat violent offender:

         "(b) The court shall impose on an offender the longest prison
         term authorized or required for the offense and shall impose on
         the offender an additional definite prison term of one, two,
         three, four, five, six, seven, eight, nine, or ten years if all of the
         following criteria are met:

         (i) The offender is convicted of or pleads guilty to a
         specification of the type described in section 2941.149 of the
         Revised Code that the offender is a repeat violent offender.

         (ii) The offender within the preceding twenty years has been
         convicted of or pleaded guilty to three or more offenses
         described in division (CC)(1) of section 2929.01 of the Revised
         Code, including all offenses described in that division of which
         the offender is convicted or to which the offender pleads guilty
         in the current prosecution and all offenses described in that
         division of which the offender previously has been convicted or
         to which the offender previously pleaded guilty, whether
         prosecuted together or separately.

         (iii) The offense or offenses of which the offender currently is
         convicted or to which the offender currently pleads guilty is
         aggravated murder and the court does not impose a sentence of
         death or life imprisonment without parole, murder, terrorism
         and the court does not impose a sentence of life imprisonment
3
  This version of the statute became effective on August 3, 2006, and the pertinent language was still in
effect at the time of Appellant's sentence and remains in effect today. Prior to August 3, 2006, in order to
be classified as a repeat violent offender, there had to be a finding that the second-degree felony at issue
"involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to
a person." This is in contrast to the applicable version of the statute which simply required the second-
degree felony at issue, here burglary, be an "offense of violence."
Scioto App. No. 17CA3812                                                                                    25

         without parole, any felony of the first degree that is an offense
         of violence and the court does not impose a sentence of life
         imprisonment without parole, or any felony of the second
         degree that is an offense of violence and the trier of fact finds
         that the offense involved an attempt to cause or a threat to
         cause serious physical harm to a person or resulted in serious
         physical harm to a person." (Emphasis added).4

         {¶34} Here, Appellant was convicted of a specification described in

R.C. 2941.149. Further, as noted above, burglary is defined as an "offense

of violence" in R.C. 2901.01(A)(9)(a). Additionally, the record

demonstrates Appellant had been convicted of three second-degree felony

burglary offenses of violence in the preceding twenty years. However, as

noted by Appellant and as discussed above, in the present case there is no

evidence in the record demonstrating the trier of fact found, with respect to

the second-degree felony burglary conviction presently at issue, "that the

offense involved an attempt to cause or a threat to cause serious physical

harm to a person or resulted in serious physical harm to a person" as

required by R.C. 2929.14(B)(2)(b)(iii). Nor would the record before us have

supported such a finding. Here, the statute clearly requires that not only

must the offense at issue be an "offense of violence," but there must also be

a serious physical harm finding by the trier of fact. Again, there was no such

finding made in the present case.
4
  The language requiring the "trier of fact" to find that "the offense involved an attempt to cause or a threat
to cause serious physical harm to a person or resulted in serious physical harm to a person" was added to
the statute by 2006-H-95, effective August 3, 2006.
Scioto App. No. 17CA3812                                                                             26

        {¶35} In State v. Sims, 8th Dist. Cuyahoga No. 84090, 2005-Ohio-

1978, the court determined that Sims could not be classified as a repeat

violent offender where the record failed to show any evidence that he caused

or attempted to cause serious physical harm during, either the incident

forming the basis for the burglary charge or in either of his prior convictions.

Notably, at the time Sims was decided, the version of R.C. 2929.01 that was

in effect at that time included language that the second-degree felony

conviction at issue must involve "an attempt to cause serious physical harm

to a person or that resulted in serious physical harm to a person" in order to

be classified as repeat violent offender."5 Thus, without any evidence of

physical harm in the record, the Sims court found that the trial court erred

not only in imposing an additional penalty upon Sims as a repeat violent

offender, but also in classifying him as a repeat violent offender.

        {¶36} As indicated above, however, after Sims was decided the

definition of “repeat violent offender" changed. Here, in order for Appellant

to be classified as a repeat violent offender, it was necessary for the trial

court to find that he was being sentenced for committing a felony of the

"second degree that is an offense of violence * * *[.]" In contrast to Sims,

there was no requirement, under the version of R.C. 2929.01 that was in

5
 Former version of R.C. 2929.01(DD) contained the definition of "repeat violent offender," which is now
contained in R.C. 2929.01(CC).
Scioto App. No. 17CA3812                                                                                   27

effect at time of Appellant's sentencing, that the trial court find Appellant

also caused, attempted or threatened to cause serious physical harm to

person before it could determine he was a "repeat violent offender" within

the meaning of the statute. Thus, it appears the trial court's classification of

Appellant as a repeat violent offender was proper. However, it also appears

that in order to impose an additional penalty in the form of a prison sentence

upon a repeat violent offender, R.C. 2929.14 now requires not only that the

offense at issue be an "offense of violence" but also that there be a finding,

by the trier of fact for the felony conviction, that "the offense involved an

attempt to cause or a threat to cause serious physical harm to a person or

resulted in serious physical harm to a person." R.C. 2929.14(B)(2)(b)(iii).6

         {¶37} This case involved the burglary of a house where ultimately no

one was present, with the intent to commit a theft offense therein, which

resulted in the theft of several bags of coins. The elements of burglary do

not include actual, attempted or threatened serious physical harm to a

person. Further, the jury made no special finding of actual, attempted or

threatened serious physical harm to a person here. Thus, the trial court erred

in imposing a prison term in connection with the repeat violent offender

classification. See State v. Davis, 7th Dist. Mahoning No. 08 MA 152, 2009-
6
  This requirement was added to the version of R.C. 2929.14 with an effective date of August 3, 2006 and
remains a requirement in the version of the statute in effect at the time of Appellant's sentencing and still
today.
Scioto App. No. 17CA3812                                                      28

Ohio-5079, ¶ 31-36 (reversing enhanced sentencing for a repeat violent

offender specification following a conviction for second-degree robbery

where the jury was not instructed to make a finding as to whether the harm

involved was serious; nor did the jury make such a finding.)

      {¶38} Accordingly, Appellant's conviction for second-degree felony

burglary is affirmed as is his eight-year maximum prison sentence for that

conviction. Further, although Appellant was properly classified as a repeat

violent offender under R.C. 2929.01(CC) by the trial court, the sentence

imposed for that classification was contrary to law. This is because the trier

of fact did not find that the offense involved an attempt to cause or a threat

to cause serious physical harm to a person, or resulted in serious physical

harm to a person. Thus, Appellant's repeat violent offender determination is

affirmed but the ten-year maximum prison term imposed as a result is

contrary to law and is, therefore, reversed and vacated.

                                              JUDGMENT AFFIRMED IN
                                              PART, REVERSED IN
                                              PART AND VACATED IN
                                              PART.
Scioto App. No. 17CA3812                                                       29

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND VACATED IN PART. Costs shall be divided
equally between Appellant and Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
