[Cite as State v. Curry, 2015-Ohio-227.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-14-26

        v.

DERICK R. CURRY, JR.,                                     OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                            Trial Court No. 2014-CR-4

                                      Judgment Affirmed

                            Date of Decision: January 26, 2015




APPEARANCES:

        Scott B. Johnson for Appellant

        Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-14-26


SHAW, J.

       {¶1} Defendant-appellant, Derick R. Curry, Jr. (“Curry”), appeals the July

11, 2014 judgment of the Hancock County Court of Common Pleas finding him

guilty of aggravated robbery and sentencing him to serve seven years in prison.

       {¶2} On January 9, 2014, the Hancock County Grand Jury indicted Curry

on one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of

the first degree, and one count of felonious assault in violation of R.C.

2903.11(A)(2), a felony of the second degree. Each count carried with it an

additional firearm specification. The indictment stemmed from allegations that on

December 19, 2013, Curry and his co-defendant, Tyrel Jones, entered an

apartment in Findlay, Ohio, with the intention of robbing the occupants. During

the commission of the crime, Jones, who was brandishing a .40 caliber handgun,

discharged the weapon causing serious physical harm to Christopher A. Ingleston.

       {¶3} On April 16, 2014, Curry appeared for arraignment and entered a plea

of not guilty.

       {¶4} On May 23, 2014, pursuant to a negotiated plea agreement, Curry pled

guilty to the amended charge of aggravated robbery without the firearm

specification. Notably, during its Crim.R. 11 colloquy, the trial court advised

Curry that the aggravated robbery offense carried a possible prison term of three to

eleven years. At this time, the parties also informed the trial court that they both

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would be asking for a seven-year “cap” on the possible prison terms to be imposed

at sentencing. (Doc. No. 43 at 10). The trial court advised Curry that it was not

bound to impose the parties’ recommendation, which Curry in turn acknowledged

on the record.

         {¶5} On July 9, 2014, a sentencing hearing was held.         The trial court

sentenced Curry to seven years in prison.

         {¶6} Curry now brings this appeal, asserting the following assignment of

error.

         THE TRIAL COURT ERRED AND ABUSED ITS
         DISCRETION IN SENTENCING DEFENDANT TO A TERM
         EXCESS [SIC] OF THE STATUTORY MINIMUM.

         {¶7} In his sole assignment of error, Curry concedes that the trial court’s

sentence of seven years falls within the statutory guidelines for a felony of the first

degree and is not contrary to law. Nevertheless, Curry challenges the trial court’s

application of the seriousness and recidivism factors set forth in R.C. 2929.11 and

R.C. 2929.12 by maintaining that the trial court abused its discretion when it did

not impose a minimum sentence of three years. Specifically, Curry claims that the

trial court failed to properly consider the fact that he did not have a felony record

prior to this incident and that he was merely acting at the direction of his co-

defendant, Jones, the principal perpetrator who brandished the .40 caliber handgun

and shot one of the victims during the commission of the offense. Curry also

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argues that the trial court’s sentence of seven years in prison is not proportionate

to Jones’ sentence of eleven years.

       {¶8} Initially, we note that a trial court’s sentence will not be disturbed on

appeal absent a defendant’s showing by clear and convincing evidence that the

sentence is unsupported by the record; the sentencing statutes’ procedure 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. Ramos, 3d Dist. Defiance No. 4–06–

24, 2007–Ohio–767, ¶ 23 (the clear and convincing evidence standard of review

set forth under R.C. 2953.08(G)(2) remains viable with respect to those cases

appealed under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *);

State v. Tyson, 3d Dist. Allen Nos. 1–04–38; 1–04–39, 2005–Ohio–1082, ¶ 19,

citing R.C. 2953.08(G).

       {¶9} With respect to the particular issue raised by Curry on appeal, a trial

court must consider R.C. 2929.11 and 2929.12 when sentencing an offender. State

v. Pence, 3d Dist. Auglaize No. 2–11–18, 2012–Ohio–1794, ¶ 9. However, the

trial court is not required to use specific language regarding its consideration of

the seriousness and recidivism factors. State v. Smith, 3d Dist. Auglaize No. 2–

06–37, 2007–Ohio–3129, ¶ 26, citing State v. Mathis, 109 Ohio St.3d 54, 2006–

Ohio–855, ¶ 38. Further, there is no requirement in R.C. 2929.12 that the trial



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court state on the record that it has considered the statutory criteria. Smith at ¶ 26,

citing State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995).

       {¶10} Here, the record reflects that during its Crim.R 11 colloquy the trial

court went to great lengths to explain to Curry the nature of complicity under Ohio

Law—specifically that an accomplice “shall be prosecuted and punished as if he

were a principal offender” and that “[a] charge of complicity may be stated in

terms of this section, or in terms of the principal offense.” R.C. 2923.03(F).

Curry acknowledged on the record that he understood the operation of the law on

complicity and how it could apply to his case. The trial court then postponed

sentencing until a pre-sentence investigation report could be completed, which

detailed Curry’s level of involvement in the instant offense.

       {¶11} After reviewing the pre-sentence investigation report and listening to

Curry’s statements at sentencing, the trial court specifically addressed the statutory

factors challenged by Curry on appeal. The trial court discussed the likelihood of

Curry’s recidivism and noted that while Curry did not have a prior felony record,

he did have “continual contacts with law enforcement,” which resulted in

numerous misdemeanors. (Doc. No. 44 at 17). The trial court also remarked that

Curry was involved in three domestic violence cases which indicated his “ability

to utilize violence in resolving issues.” (Id.).



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       {¶12} With regard to the seriousness of the offense, the trial court noted

that the occupants in the apartment were put in fear for their lives by Curry’s

conduct in assisting Jones with the robbery and that as a result of their actions, one

person was shot and seriously injured. The trial court also observed that Curry

minimized his conduct in his recitation of the events, which did not comport with

the official version of facts contained in the pre-sentence investigation report, and

indicated to the trial court that Curry did not appear to take full responsibility for

the role as an aider and abettor that he played in the commission of the crime. In

particular, the trial court stated that “I have a great deal of difficulty, Mr. Curry,

envisioning a circumstance where you were [an] unwitting and involuntary

participant in this conduct. That’s not what is indicated here. It doesn’t indicate

that this was a surprise to you. That you were pulled into this unwittingly,

unprepared. You had a knife and a ski mask.” (Doc. No. 44 at 18-19).

       {¶13} Finally, the record reflects that the trial court considered the eleven-

year sentence imposed on Jones for his conduct during the incident and

determined that imposing a seven-year sentence on Curry is both proportionate

and commensurate with Curry’s involvement in perpetrating the crime. It is also

notable that the trial court did not impose a sentence above the seven-year “cap”

recommended by the parties. Thus, we are not persuaded by Curry’s arguments

suggesting that the trial court abused its discretion in this manner.

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       {¶14} Based on the foregoing, we cannot find that the trial court erred in

imposing its sentence. Accordingly, Curry’s assignment of error is overruled and

the judgment is affirmed.

                                                            Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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