[Cite as State v. Townsend,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99896

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LAWRENCE TOWNSEND DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-544910

BEFORE: Celebrezze, P.J., Keough, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: March 13, 2014 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender BY: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Stephanie Anderson Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, Lawrence Townsend, appeals his 18-month sentence for

aggravated assault. He claims this maximum sentence is clearly and convincingly

contrary to law. After a thorough review of the record and law, this court affirms

appellant’s sentence.

I. Factual and Procedural History

{¶2} In 2011, appellant was living in the apartment of his girlfriend, Wycenia

Dixon. Dixon also rented a room to Rosa Doss. On September 18, 2011, appellant and

Doss were involved in some sort of confrontation, and appellant picked up a hammer and

hit Doss several times in the head with it. He was subsequently arrested.

{¶3} Appellant was indicted by the Cuyahoga County Grand Jury on two counts of

felonious assault in violation of R.C. 2903.11(A)(1) and 2903.11(A)(2). He first entered

pleas of not guilty and was referred to the court psychiatric clinic for evaluation.

Appellant was found competent to stand trial in a report stipulated to by both sides and

adopted by the trial court on November 19, 2012. On March 12, 2013, appellant retracted

his former pleas of not guilty and, as part of an agreement with the state, pled guilty to

one fourth-degree-felony count of aggravated assault in violation of R.C. 2903.12(A)(2).

The trial court accepted appellant’s plea after a thorough colloquy. The court then

ordered a presentence investigation report and set a sentencing hearing for April 18, 2013. {¶4} At sentencing, the court heard from Doss, Dixon, and appellant. It

referenced numerous prior convictions dating back as far as the 1970s. The court

indicated its familiarity with appellant after having presided over another of appellant’s

recent unrelated criminal case. The court imposed an 18-month prison sentence and

informed appellant of postrelease control. This appeal followed where one assignment

of error is raised: “The trial court committed error when it imposed the maximum

sentence on appellant, Lawrence Townsend.”

II. Law and Analysis

{¶5} Appellant claims that the trial court erred when it imposed an 18-month

maximum prison sentence.

{¶6} R.C. 2953.08(A)(1) gives a defendant who receives a maximum sentence the

right to appeal such a decision in certain circumstances. In the instant case, appellant has

the right to appeal his sentence because it was not a mandatory maximum sentence

pursuant to R.C. Chapter 2950 et seq., and it was “imposed for only one offense.” R.C.

2953.08(A)(1)(a). Therefore, 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 that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2).

{¶7} This court must determine if the trial court’s findings under R.C. 2929.13(B)

are clearly and convincingly unsupported in the record. R.C. 2953.08(G)(2)(a). See

also State v. Venes,

,

(8th Dist.).

{¶8} If a given charge falls under R.C. 2929.13(B)(1)(b), a court has discretion to

impose a prison sentence for a fourth- or fifth-degree felony. This subsection as well as

R.C. 2929.13(B)(1)(a) excludes from mandatory imposition of community control

offenses of violence and certain “qualified offenses.” R.C. 2901.01(A)(9) provides that

aggravated assault is an offense of violence. A qualified offense, as defined by R.C.

2929.13(K)(2), is a “violation of section 2903.13 of the Revised Code [assault] for which

the penalty provision in division (C)(8)(b) [relating to hospital personnel] or (C)(9)(b)

[relating to court personnel] of that section applies.”

{¶9} Appellant’s conviction for aggravated assault under R.C. 2903.12(A)(2) is

not a “qualified offense” and does not otherwise meet any of the provisions that would

mandate community control. Therefore, appellant’s sentence is guided by R.C.

2929.13(B)(2), which provides in part that “in determining whether to impose a prison

term as a sanction for a felony of the fourth or fifth degree, the sentencing court shall

comply with the purposes and principles of sentencing under section 2929.11 of the

Revised Code and with section 2929.12 of the Revised Code.” Indeed, there are no longer any specific findings or reasons a court must give in order to impose maximum

sentences. State v. Calliens, 8th Dist. Cuyahoga No. 97034,

.

{¶10} The sentence imposed should fulfill the dual 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 accomplish

those purposes without imposing an unnecessary burden on state or local government

resources.” R.C. 2929.11(A). The sentence imposed should also 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 committed by similar

offenders.” R.C. 2929.11(B).

{¶11} To achieve those purposes, courts are directed by R.C. 2929.12 to consider a

non-exhaustive list of factors, including seriousness and recidivism factors, and determine

the most effective way to comply with the purposes and principles of sentencing set forth

above. State v. Arnett,

,

,

.

{¶12} Appellant asserts in his brief that the trial court did not thoroughly consider

R.C. 2929.11 and 2929.12 when imposing sentence because he is over 60 years of age

and is wheelchair-bound. Appellant complains that the court did not explain why the

sentence imposed was the minimum sanction that the court determined would accomplish

those purposes without imposing an unnecessary burden on the state or local government

resources. However, there is no requirement that the court state reasons in order to

demonstrate compliance with R.C. 2929.11 and 2929.12. State v. Corbett, 8th Dist. Cuyahoga No. 99649,

. These statutes are not fact-finding statutes like

R.C. 2929.14, which requires the court to make specific findings in order to impose a

certain penalty. State v. Kalish,

,

,

. We are only concerned with whether the trial court considered these statutes when

imposing sentence.

{¶13} Here, the trial court made several statements regarding appellant’s long

criminal history with numerous serious convictions dating back to the 1970s. The court

stated that appellant was a career criminal who needed to be separated from society for

the protection of its members. Appellant asserts that he is practically no danger to the

community. His victim, Ms. Doss, would disagree, as evidenced by the several blows to

the head she suffered from the hammer wielded by appellant.

{¶14} During the sentencing hearing, the trial court heard statements from the

victim, appellant, and Dixon. The court went further than necessary to understand the

case, appellant’s culpability, and the facts surrounding the assault. The court then

reviewed appellant’s significant criminal history contained within the presentence

investigation report. The court also heard statements regarding appellant’s medical

history, including medical conditions, illicit drug use, and psychiatric medications

prescribed and noncompliance. The court determined that a sentence of 18 months was

appropriate. The sentence imposed by the trial court in this case is within the statutory

range and is not clearly and convincingly contrary to law. In fact, the record supports the trial court’s consideration of the purposes and principles of felony sentencing as outlined

by R.C. 2929.11 and 2929.12. 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

KATHLEEN ANN KEOUGH, J., and EILEEN A. GALLAGHER, J., CONCUR