[Cite as State v. Reid,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103186

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

BRANDON J. REID DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-594449-A

BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: October 27, 2016 ATTORNEY FOR APPELLANT

Christopher R. Fortunato 13363 Madison Avenue Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Kerry A. Sowul Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:

{¶1} Defendant-appellant, Brandon Reid (“Reid”), appeals from the trial court’s

imposition of a prison term on his third-degree felony drug trafficking conviction. He

raises one assignment of error for our review:

1. The trial court erred when it failed to find that a community control sanction would suffice rather than impose a term of incarceration especially where the trial court failed to make sufficient findings under R.C. 2929.13.

{¶2} After careful review of the record and relevant case law, we affirm in part,

reverse in part, and remand for proceedings consistent with this opinion.

I. Procedural History

{¶3} In April 2015, Reid was named in a five-count indictment charging him with

drug trafficking in violation of R.C. 2925.03(A)(2), with a one-year firearm specification

and a schoolyard specification; drug possession in violation of R.C. 2925.11(A), with a

one-year firearm specification; unlawful possession of a dangerous ordinance in violation

of R.C. 2923.17(A); having a weapon while under disability in violation of R.C.

2923.13(A)(3); and possession of criminal tools in violation of R.C. 2923.24(A). Each

count also contained forfeiture specifications.

{¶4} In May 2015, Reid entered into a plea agreement with the state, wherein he

pleaded guilty to amended Count 1, drug trafficking, with a schoolyard specification and

forfeiture specifications; and Count 4, having a weapon while under disability, with

forfeiture specifications. The court accepted Reid’s plea and set the matter for sentencing after ordering a presentence investigation report (“PSI”), a Treatment

Alternatives to Street Crime (“TASC”) evaluation, and an interview for entry into the

Cuyahoga County Community Based Correctional Facility (“CBCF”).

{¶5} At sentencing, the prosecutor set forth the facts supporting Reid’s indictment.

As stated by the prosecutor, the Lakewood Police Department obtained a search warrant

following the execution of five controlled drug buys at Reid’s residence in Cleveland,

Ohio. Once inside Reid’s home, the police recovered heroin, firearms, cash, and a cell

phone.

{¶6} After consideration of Reid’s PSI and the TASC assessment, the trial court

imposed an 18-month prison term on Count 1. On Count 4, the trial court imposed a

three-year period of community control sanctions, including a six-month term of

confinement in a CBCF once his prison term is completed.

{¶7} Reid now appeals from the imposition of a prison term on his drug trafficking

conviction.

II. Law and Analysis

{¶8} In his sole assignment of error, Reid argues the trial court erred in finding

that the presumption of a prison term on his drug-trafficking conviction was not

overcome, “especially where the court failed to make sufficient findings under R.C.

2929.13.”

{¶9} When reviewing felony sentences, the appellate court’s standard for review is

not whether the sentencing court abused its discretion. R.C. 2953.08(G)(2). Rather, if this court “clearly and convincingly” finds that (1) “the record does not support the

sentencing court’s findings under R.C. 2929.14(C)(4),” or that (2) “the sentence is

otherwise contrary to law,” then we “may increase, reduce, or otherwise modify a

sentence * * * or [a reviewing court] may vacate the sentence and remand the matter to

the sentencing court for re-sentencing.”

{¶10} 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,

, citing State v. Kalish,

,

,

.

{¶11} R.C. 2929.11(A) provides that 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.” R.C. 2929.11(B) requires that, in addition to achieving these goals, a

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

offender’s conduct and its impact upon the victim.”

{¶12} R.C. 2929.12 provides a non-exhaustive list of factors the court must

consider in determining the relative seriousness of the underlying crime and the

likelihood that the defendant will commit another offense in the future. State v.

Townsend, 8th Dist. Cuyahoga No. 99896,

, citing State v. Arnett,

,

,

. The factors include (1) the

physical, psychological, and economic harm suffered by the victim; (2) the defendant’s

prior criminal record; (3) whether the defendant shows any remorse; and (4) any other

relevant factors. R.C. 2929.12(B) and (D).

{¶13} In this case, Reid was convicted of trafficking in heroin in an amount equal

to or exceeding one gram but less than five grams, in violation of R.C. 2925.03(A)(2).

Pursuant to R.C. 2925.03(C)(6)(c):

(6) If the drug involved in the violation is heroin or a compound, mixture, preparation, or substance containing heroin, whoever violates division (A) of this section is guilty of trafficking in heroin. The penalty for the offense shall be determined as follows:

***

(c) Except as otherwise provided in this division, if the amount of the drug involved * * * equals or exceeds one gram but is less than five grams, trafficking in heroin is a felony of the fourth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term for the offense. If the amount of the drug involved is within that range and if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in heroin is a felony of the third degree, and there is a presumption for a prison term for the offense.

{¶14} Reid concedes that his trafficking offense was committed in the vicinity of a school, and

therefore, carried a presumption of a prison term. Under R.C. 2929.13(D)(1):

any felony drug offense that is a violation of any provision of Chapter 2925 * * * of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, * * * it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code.

{¶15} However, under certain circumstances, a trial court may depart from that presumption.

R.C. 2929.13(D)(2) offers guidance to the sentencing court: [T]he sentencing court may impose a community control sanction or a combination of community control sanctions instead of a prison term on an offender * * * for a felony drug offense that is a violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison term is specified as being applicable if it makes both of the following findings:

(a) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism.

(b) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under section 2929.12 of the Revised Code that indicate that the offender’s conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender’s conduct was more serious than conduct normally constituting the offense.

A trial court must make both of the above findings in order to overcome the presumption of prison.

State v. Mathis,

,

,

, paragraph one of the syllabus.

{¶16} Relying on R.C. 2929.13(D)(2), Reid argues the trial court failed to state sufficient

findings on the record to warrant the imposition of a prison term on his drug trafficking conviction.

However, the finding requirements of R.C. 2929.13(D)(2) are only implicated where the court

concludes that the presumption of prison has been rebutted by the relevant seriousness and recidivism

factors of R.C. 2929.12. In this case, the trial court determined that Reid did not overcome the

presumption of a prison term, stating:

Okay. Well, my ruling is that even if there had not been a presumption in this case, I think confinement is — prison confinement is warranted under these circumstances. And based on the understanding that there is a presumption I think that just furthers my view. And if the presumption is there I don’t think the circumstances that you’ve indicated to me, defeat that presumption. {¶17} Accordingly, under the circumstances of this case, the trial court had no obligation to

support its enforcement of the presumption of a prison term with findings on the record.

{¶18} Moreover, we find no merit to Reid’s position that the trial court failed to

sufficiently weigh the relevant sentencing factors on the record. Contrary to Reid’s

contention, while the trial court was obligated to “consider” the purposes and principles

of felony sentencing, it was not required to engage in any factual findings under R.C.

2929.11 or 2929.12. State v. Combs, 8th Dist. Cuyahoga No. 99852,

; State v. Bement, 8th Dist. Cuyahoga No. 99914,

. “While trial

courts must carefully consider the statutes that apply to every felony case, it is not

necessary for the trial court to articulate its consideration of each individual factor as long

as it is evident from the record that the principles of sentencing were considered.” State

v. Gonzalez, 8th Dist. Cuyahoga No. 102579,

, citing State v.

Roberts, 8th Dist. Cuyahoga No. 89236,

. This court has held that

a trial court’s statement in its sentencing entry that it considered the required statutory

factors, without more, is sufficient to fulfill a sentencing court’s obligations under R.C.

2929.11 and 2929.12. State v. Ziska, 8th Dist. Cuyahoga No. 102798,

, citing Gonzalez at ¶ 7.

{¶19} In the instant case, the trial court imposed a prison term within the statutory

range for a third-degree felony, and the court’s sentencing entry states that it considered

“all required factors of the law” and concluded that “prison is consistent with the purpose

of R.C. 2929.11.” In addition, the sentencing transcript reveals that the trial court considered the statutory criteria set forth in R.C. 2929.11 and 2929.12 and gave full

consideration to the principles and purposes of sentencing, as well as the seriousness of

the offense and the risk of recidivism. Specifically, the trial court discussed the

seriousness of crimes involving heroin and indicated that it carefully considered Reid’s

PSI and TASC reports, which contained information indicating a high likelihood of

recidivism under R.C. 2929.12(D), including Reid’s extensive criminal history and

pattern of substance abuse.

{¶20} Further, the record reflects that before imposing sentence, the trial court

considered relevant mitigating factors, including Reid’s acknowledgment of his drug

addiction and his willingness to participate in drug treatment. Ultimately, however, the

trial court determined that these mitigating factors did not rebut the presumption of a

prison term. Based on the record before this court, we cannot say the trial court’s

determination is clearly and convincingly unsupported. See State v. Friday, 8th Dist.

Cuyahoga No. 102774,

.

{¶21} In light of the forgoing, it is evident from the record that the trial court

considered the purposes and principles of sentencing, the seriousness and recidivism

factors, and all relevant sentencing factors prior to the imposition of sentence. With

respect to his 18-month prison sentence, the trial court had no obligation to make findings

in support of its determination that the presumption of a prison term was not overcome in

this case. Accordingly, we find the imposition of a prison term on Reid’s drug

trafficking charge was not contrary to law. {¶22} However, we find the trial court’s decision to run the three-year term of

community control sanctions imposed on Reid’s having a weapon while under disability

charge consecutive to the prison term imposed on his drug trafficking charge was contrary

to law. Recently, this court concluded that because there was “no statutory authority for

the imposition of community control sanctions to be served consecutive to, or following

the completion of, a prison or jail term or other sentence of imprisonment, the trial court

was without authority to impose the same.” State v. Anderson, 8th Dist. Cuyahoga No.

102427,

.

{¶23} Therefore, following the analysis and reasoning set forth in this court’s en

banc majority in Anderson, the sentence imposed on the having a weapon while under

disability charge is void and must be vacated. Id. at ¶ 31. Accordingly, we reverse

Reid’s sentence on the having a weapon while under disability charge and remand for

resentencing solely on that count. Reid’s conviction for drug trafficking is otherwise

affirmed. Id. at ¶ 32.

{¶24} Judgment affirmed in part, reversed in part, and remanded for proceedings

consistent with this opinion.

It is ordered that appellee and appellant share 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and FRANK D. CELEBREZZE, JR., J., CONCUR