[Cite as State v. Smith,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-15-17

v.

TRENT W. SMITH, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Trial Court No. 14-CR-0244

Judgment Affirmed

Date of Decision: October 13, 2015

APPEARANCES:

James W. Fruth for Appellant

Stephanie J. Reed for Appellee Case No. 13-15-17

ROGERS, P.J.

{¶1} Defendant-Appellant, Trent Smith, appeals the decision of the Court

of Common Pleas of Seneca County convicting him of attempted illegal use of a

minor in nudity-oriented material and sentencing him to 36 months in prison. On

appeal, Smith argues that the trial court erred by imposing the maximum sentence.

For the reasons that follow, we affirm the judgment of the trial court.

{¶2} On October 8, 2014, the Seneca County Grand Jury returned a four

count indictment against Smith, charging him with two counts of illegal use of a

minor in a nudity-oriented material or performance in violation of R.C.

2907.323(A)(2), (B), felonies of the second degree; one count of pandering

sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(5),

(C), a felony of the fourth degree; and one count of illegal use of a minor in a

nudity-oriented material or performance in violation of R.C. 2907.323(A)(3), (B),

a felony of the fifth degree. Smith entered pleas of not guilty to all the charges on

November 6, 2014, which was later memorialized in a judgment entry dated

November 7, 2014.

{¶3} On April 9, 2015, the court held a hearing to discuss a potential

change of plea. At the hearing, it was announced that Smith had entered into a

plea agreement with the State. In the agreement, Smith agreed to enter a plea of

guilty to a lesser included offense in count one of attempted illegal use of a minor

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in a nudity-oriented material or performance in violation of R.C. 2923.02(A),

(E)(1) and 2907.323(A)(2), (B), a felony of the third degree. In exchange for this

admission, the State agreed to dismiss the remaining three counts. After engaging

in the required colloquy with Smith, the trial court accepted Smith’s change of

plea and found him guilty of the amended charge. This was memorialized in an

entry dated April 14, 2015. Additionally, the court dismissed the remaining

counts in a separate entry dated April 14, 2015.

{¶4} The matter proceeded immediately to sentencing. The State argued

that the court should impose a prison sentence of 36 months. The State supported

its argument by stating that the victim here was only nine years-old at the time of

the crime. Further, the State cited to a case with somewhat similar facts where the

defendant was sentenced to five years in prison. The State conceded that the

pictures involved in that case were more serious and graphic than the ones at issue

in the case sub judice. However, that person was convicted of a felony of the

second degree, whereas Smith was convicted of a felony of the third degree. In

addition to the State’s arguments, the trial court also read the contents of a victim

impact statement that was filed in the case.

{¶5} Smith’s counsel argued that Smith’s punishment should be mitigated

for several reasons. First, he stated that Smith had no prior criminal record

whatsoever. Further, Smith’s counsel argued that Smith’s family fully supported

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Smith throughout the whole ordeal. Finally, Smith’s counsel stated that Smith had

accepted responsibility for his actions.

{¶6} After considering all the relevant factors and presumptions under R.C.

2923.13(C), the trial court sentenced Smith to 36 months in prison with 20 days

being credited to Smith. In addition, Smith was classified as a Tier II sex

offender. Finally, the court sentenced Smith to a mandatory five year period of

post-release control to begin upon release from prison. The trial court

memorialized Smith’s sentence in an entry dated April 14, 2015.

{¶7} Smith filed this timely appeal, presenting the following assignment of

error for our review.

Assignment of Error

THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO THE MAXIMUM PRISON SENTENCE TERM FOR ONLY ONE FELONY OFFENSE.

{¶8} In his sole assignment of error, Smith argues that the trial court erred

by imposing a maximum prison sentence. Specifically, Smith argues that his

conduct did not constitute the worst form of the offense. We disagree.

{¶9} “Trial courts have full discretion to impose any sentence within the

statutory range.” State v. Noble, 3d Dist. Logan No. 8-14-06,

, citing State v. Saldana, 3d Dist. Putnam No. 12–12–09, 2013–Ohio–1122, ¶ 20.

“A trial court’s sentence will not be disturbed on appeal absent a defendant's

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showing by clear and convincing evidence that the sentence is unsupported by the

record or otherwise contrary to law.” State v. Barrera, 3d Dist. Putnam No. 12–

12–01, 2012–Ohio–3196, ¶ 20. 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,

(1954), paragraph

three of the syllabus. “An appellate court should not, however, substitute its

judgment for that of the trial court because the trial court is in a better position to

judge the defendant's chances of recidivism and determine the effects of the crime

on the victim.” Noble at ¶ 9, citing State v. Watkins, 3d Dist. Auglaize No. 2-04-

08, 2004–Ohio–4809, ¶ 16.

{¶10} R.C. Chapter 2929 governs sentencing. R.C. 2929.11 provides, in

pertinent part, that the “overriding purposes of felony sentencing are to protect the

public from future crime and to punish the offender.” R.C. 2929.11(A). In

advancing these purposes, sentencing courts are instructed to “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.”

Meanwhile, R.C. 2929.11(B) states that felony

sentences must be “commensurate with and not demeaning to the seriousness of

the offender’s conduct and its impact upon the victim” and also be consistent with

sentences imposed in similar cases. In accordance with these principles, the trial

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court must consider the factors set forth in R.C. 2929.12(B)-(E) relating to the

seriousness of the offender’s conduct and the likelihood of the offender’s

recidivism. R.C. 2929.12(A). However, the trial court is not required to make

specific findings of its consideration of the factors. State v. Kincade, 3d Dist.

Wyandot No. 16–09–20, 2010–Ohio–1497, ¶ 8.

{¶11} Since Smith was convicted of a felony of the third degree, the

relevant prison range is between 9 and 36 months. R.C. 2929.14(A)(3)(b). The

trial court sentenced Smith to 36 months in prison, which is within the statutory

guidelines. Upon review of the record, we cannot find that the trial court erred in

imposing this sentence.

{¶12} The record indicates that Smith’s conduct was more serious than

conduct normally constituting attempted illegal use of a minor in a nudity-oriented

material or performance. First, C.M., the victim in the case, was only eight or nine

years old when Smith videotaped her undressing and bathing in the bathroom.

R.C. 2929.12(B)(1). Further, C.M. was Smith’s stepdaughter, someone that Smith

was entrusted with protecting. R.C. 2929.12(B)(6).

{¶13} Also, the support of Smith’s family is troubling. Smith claims that

his family’s support is a mitigating factor in the case. We find the opposite to be

true. The victim here is a child that was living with Smith at the time the crime

was committed. Further, the fact that the family supported Smith leads one to

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believe that the family did not support the victim. This conclusion is more evident

after reading the victim impact statement filed by the grandmother of the victim.

The statement states that the victim’s mother blames the victim for Smith’s

actions. Further, the statement states that Smith is very controlling and has been

verbally cruel to both the victim and her mother in the past. This lack of

protection for the victim leads us to conclude that the family’s support is an

aggravating factor in this particular case.

{¶14} In support for the conclusion that Smith was not likely to commit

future crimes, Smith argued that he had no prior criminal record before

committing this offense and that he was remorseful. R.C. 2929.12(E)(2), (5). He

also argued that his offense was not the worst form of the offense because he was

only categorized as a Tier II sex offender. Regardless of what tier Smith was

categorized, this fact is not relevant to the issue of whether his offense is of the

worst kind. Pursuant to R.C. 2950.01(F)(1)(c), all people convicted of violating

R.C. 2907.323(A)(2) must be labeled Tier II sex offenders. The statute does not

leave the classification to the judge’s discretion. Thus, the fact that Smith was

labeled a Tier II sex offender is irrelevant.

{¶15} Although Smith presented two relevant mitigating factors, the record

also supports the conclusion that several aggravating factors were present. “A

sentencing court has broad discretion to determine the relative weight to assign the

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sentencing factors in R.C. 2929.12.” State v. Brimacombe,

,

, ¶ 18 (6th Dist.), citing State v. Arnett,

(2000). In the case sub judice, the trial court must have afforded more weight to

the aggravating factors presented than the mitigating factors. Therefore, we

cannot say that the trial court’s decision to impose the maximum sentence is

unsupported by the record. While Smith has argued that the trial court erred in

finding his to be the worst form of the offense, that finding is no longer a

necessary predicate to the court’s imposition of a maximum sentence, and

therefore immaterial to our decision.

{¶16} Accordingly, we overrule Smith’s sole assignment of error.

{¶17} Having found no error prejudicial to Smith, in the particulars

assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr

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