[Cite as State v. Aburas,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2017-10-054

: OPINION - vs - 5/21/2018 :

WILSON MUSA ABURAS, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2016-CR-00456

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, Wilson Aburas, appeals his 60-month sentence from the

Clermont County Court of Common Pleas after pleading guilty to sexual battery.

{¶ 2} Aburas was charged with one count of first-degree felony rape after he forced

his close friend to have sexual intercourse with him against her will. Aburas later agreed to

plead guilty to a third-degree felony charge of sexual battery. The trial court then sentenced Clermont CA2017-10-054

Aburas to 60 months in prison after considering information from a presentence investigation

report ("PSI"), which included information about Aburas' military history. Aburas now appeals

his sentence, raising the following assignments of error. We will address the assignments of

error together, as they are interrelated.

{¶ 3} Assignment of Error No. 1:

{¶ 4} THE TRIAL COURT'S 60-MONTH PRISON SENTENCE IS NOT SUPPORTED

BY THE RECORD.

{¶ 5} Assignment of Error No. 2:

{¶ 6} THE TRIAL COURT FAILED TO CONSIDER WHETHER MR. ABURAS HAD

AN EMOTIONAL, MENTAL, OR PHYSICAL CONDITION THAT IS TRACEABLE TO HIS

SERVICE IN THE ARMED FORCES.

{¶ 7} Aburas argues in his assignments of error that the trial court erred in imposing

the 60-month sentence.

{¶ 8} An appellate court reviews the imposed sentence according to R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum,

,

. Pursuant to that statute, an appellate court does not review the

sentencing court's decision for an abuse of discretion. Id. at ¶ 10. Rather, R.C.

2953.08(G)(2) provides that an appellate court can modify or vacate a sentence only if the

appellate court finds by clear and convincing evidence that the record does not support the

trial court's findings under relevant statutes or that the sentence is otherwise contrary to law.

{¶ 9} A sentence is not clearly and convincingly contrary to law where the trial court

"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8. Thus, this court may increase, reduce, or otherwise modify a sentence only -2- Clermont CA2017-10-054

when it clearly and convincingly finds that the sentence is either contrary to law or

unsupported by the record.

.

{¶ 10} After reviewing the record, we find that Aburas' sentence was not contrary to

law. Aburas was convicted of a third-degree felony, which according to R.C.

2929.14(A)(3)(a), is subject to a sentencing range of 12 to 60 months. The trial court's 60-

month sentence was therefore within the statutory range. Moreover, the trial court addressed

the purposes and principles of sentencing according to R.C. 2929.11 and R.C. 2929.12 at

both the sentencing hearing and within the trial court's sentencing entry. The trial court also

informed Aburas of the pertinent postrelease control sanctions. As such, Aburas' sentence

was not contrary to law.

{¶ 11} The record also supports the 60-month sentence. The trial court considered

the information contained in the PSI, statements from the state advocating for a prison

sentence, and statements from the defense in mitigation. These considerations included that

Aburas sexually battered his best friend, even after knowing her history of sexual abuse and

that previous instances of sexual abuse had left her scarred. Aburas did not contest the

state's presentation of facts during the plea hearing, including that Aburas went into the

victim's bedroom while she was asleep, moved her from lying on her stomach to her back,

removed her pants and panties, pinned her down, and engaged in sexual intercourse with

her while the victim repeatedly told Aburas to stop and tried to push Aburas off her.

{¶ 12} The court considered that Aburas took advantage of his relationship with the

victim, and engaged in an act of sexual violence against her. The court also questioned

whether Aburas was remorseful, as Aburas' statement within the PSI contended that the

sexual act was consensual and that the victim accused him of rape and was only angry with

him because he fell asleep during intercourse.

{¶ 13} Despite Aburas' argument that the trial court did not give proper consideration -3- Clermont CA2017-10-054

to his experiences in the military, the record indicates otherwise. According to R.C.

2929.12(F), "the sentencing court shall consider the offender's military service record and

whether the offender has an emotional, mental, or physical condition that is traceable to the

offender's service in the armed forces of the United States and that was a contributing factor

in the offender's commission of the offense or offenses." However, the statute does not

require a particular outcome or that the trial court do anything other than consider the

defendant's military service record and any contributing factors to the offense that can be

traced back to such service. State v. Mitchell, 4th Dist. Meigs No. 13CA13,

;

see also State v. Napier, 12th Dist. Clermont No. CA2016-04-022,

(finding the trial court properly considered R.C. 2929.12[F] where "the record clearly

demonstrate[d] the trial court considered [appellant's] prior military service by thanking him

for his service, while also stating that such service did not excuse the offense of violence that

occurred").

{¶ 14} The PSI clearly indicates that Aburas suffered from PTSD, anxiety, and

depression after one of his friends in the military was killed during combat. Aburas' defense

counsel offered this information during mitigation, and the trial court was provided all

applicable information in the PSI regarding Aburas' experiences in the military that may have

contributed to his criminal conviction. However, the record also indicates that Aburas was

discharged from the military after he was charged with larceny.

{¶ 15} The trial court made specific mention of Aburas' military experiences during

sentencing, even thanking Aburas for his service. "I appreciate the fact that you were willing

to serve in the military. That's a very honorable thing to do * * * your service, in that regard, is

appreciated." Despite Aburas' argument to the contrary, the record clearly shows that the

trial court considered Aburas' military history and all pertinent information regarding his

medical conditions once he was discharged. -4- Clermont CA2017-10-054

{¶ 16} After reviewing the record, we find that the trial court's sentence was not

contrary to law and was otherwise supported by the record. As such, Aburas' two

assignments of error are overruled.

{¶ 17} Judgment affirmed.

RINGLAND, P.J., and M. POWELL, J., concur.

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