The opinion
[Cite as State v. Brown, 2014-Ohio-4381.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100874
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES BROWN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574953-A
BEFORE: Celebrezze, P.J., Rocco, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: October 2, 2014
ATTORNEY FOR APPELLANT
Christopher M. Kelley
75 Public Square
Suite 700
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian M. McDonough
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Charles Brown, appeals from his two-year term of
imprisonment. After a careful review of the record and relevant case law, we affirm
appellant’s sentence.
I. Procedural History
{¶2} On June 4, 2013, appellant was indicted and charged with three counts of
rape in violation of R.C. 2907.02(A)(2); two counts of kidnapping in violation of R.C.
2905.01(A)(4); and one count of attempted rape in violation of R.C. 2923.02 and
2907.02(A)(2). The indictment stemmed from events that took place on June 5, 1993.
On June 7, 2013, he entered a plea of not guilty to all charges.
{¶3} On November 14, 2013, appellant and the state reached a plea agreement.
Appellant withdrew his formerly entered plea of not guilty and pled guilty to an amended
Count 1, sexual battery, in violation of R.C. 2907.03(A)(1), a felony of the third degree.
The remaining counts were nolled.
{¶4} On December 17, 2013, appellant received the maximum sentence of two
years on his sexual battery conviction. See former R.C. 2929.11(D)(1). Appellant now
brings this timely appeal raising one assignment of error for review.
II. Law and Analysis
{¶5} In his sole assignment of error, appellant argues that the trial court’s
imposition of a maximum sentence of two years is clearly and convincingly contrary to
law.
{¶6} We do not review felony sentences under an abuse-of-discretion standard.
State v. Kopilchak, 8th Dist. Cuyahoga No. 98984, 2013-Ohio-5016, ¶ 10, citing R.C.
2953.08(G)(2). Rather, this court “shall review the record, including the findings
underlying the sentence or modification given by the sentencing court” and may
“increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and
remand the matter to the sentencing court for resentencing” if we determine that “the
record clearly and convincingly * * * does not support the sentencing court’s findings
under [various provisions]; [or] [t]hat the sentence is otherwise contrary to law.” Id.
{¶7} A sentence is not clearly and convincingly contrary to law “where the trial
court considers the purposes and principles of sentencing under R.C. 2929.11 as well as
the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease
control, and sentences a defendant within the permissible statutory range.” State v. A.H.,
8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.
{¶8} R.C. 2929.11(A) provides that
[t]he 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.
{¶9} Under R.C. 2929.12(A), trial courts must consider a nonexhaustive list of
factors, including the seriousness of the defendant’s conduct, the likelihood of recidivism,
and “any other factors that are relevant to achieving those purposes and principles of
sentencing.”
{¶10} We note that while the court must consider the principles and purposes
outlined above, it is not required to use particular language or engage in any specific
findings of its consideration of these factors under R.C. 2929.11 or 2929.12. Kopilchak,
8th Dist. Cuyahoga No. 98984, 2013-Ohio-5016, at ¶ 14. In fact, consideration of the
appropriate factors set forth in R.C. 2929.11 and 2929.12 can be presumed unless the
defendant affirmatively shows to the contrary. State v. Jones, 8th Dist. Cuyahoga No.
99759, 2014-Ohio-29, ¶ 13; State v. Clayton, 8th Dist. Cuyahoga No. 99700,
2014-Ohio-112, ¶ 7.
{¶11} Based on the record before us, we find that appellant’s sentence is not
clearly and convincingly contrary to law. Here, the trial court imposed a sentence within
the sentencing range and adequately considered the purposes and principles of sentencing
under R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C.
2929.12. In doing so, the court expressly stated that “the purpose and principles of
felony sentencing are to protect the public and punish the offender.” Further, the court
considered appellant’s extensive criminal history, which included convictions for
attempted aggravated robbery, sexual battery, criminal trespass, attempted rape,
abduction, and various drug and alcohol-related offenses. The trial court then considered
the impact appellant’s actions had on the victim in this matter. It found that the victim
suffered serious psychological harm and that appellant used his relationship with the
victim to facilitate the sexual battery offense.
{¶12} Moreover, despite appellant’s position to the contrary, the record reflects
that the trial court carefully considered the relevant mitigating factors detailed in
appellant’s Mitigation of Penalty Report, but found that the aggravating factors weighed
more heavily in favor of a maximum sentence. Specifically, the court stated:
Based on the findings that the court has made with regard to the seriousness
and recidivism factors, the court finds that a sentence of community control
would demean the seriousness of this offense. And based upon this
defendant’s history and the risk of recidivism that is detailed in the
mitigation of penalty report, the court does find that prison is an appropriate
sentence, and that a maximum sentence in this case is appropriate based
upon the seriousness of the conduct and the length and nature of this
defendant’s criminal history.
{¶13} In light of the foregoing, we find that the trial court considered the purposes
and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism
factors listed in R.C. 2929.12, properly applied postrelease control, and sentenced
appellant within the permissible statutory range. Thus, the trial court’s imposition of a
maximum sentence is not clearly and convincingly contrary to law.
{¶14} Appellant’s sole assignment of error is overruled.
{¶15} Judgment affirmed.
It is ordered that appellee recover from 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. 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., PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR