[Cite as State v. Luce,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CHRISTOPHER LUCE : Case No. 19-COA-001 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 17-CRI-025

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 15, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

COLE F. OBERLI RUTH R. FISCHBEIN-COHEN VICTOR R. PEREZ 3552 Severn Road 110 Cottage Street Cleveland, OH 44118 Ashland, OH 44805 Ashland County, Case No. 19-COA-001 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Christopher Luce, appeals his December 27, 2018

resentence by the Court of Common Pleas of Ashland County, Ohio. Plaintiff-Appellee

is state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On March 9, 2017, the Ashland County Grand Jury indicted appellant on

one count of involuntary manslaughter in violation of R.C. 2903.04, one count of

corrupting another with drugs in violation of R.C. 2925.02, two counts of aggravated

trafficking in drugs in violation of R.C. 2925.03, two counts of aggravated possession of

drugs in violation of R.C. 2925.11, two counts of possessing drug abuse instruments in

violation of R.C. 2925.12(A), one count of illegal use or possession of drug paraphernalia

in violation of R.C. 2925.14(C)(1), one count of illegal use or possession of marijuana

drug paraphernalia in violation of R.C. 2925.141, and one count of possession of drugs

in violation of R.C. 2925.11.

{¶ 3} On August 1, 2017, appellant pled guilty to three of the counts: one of the

aggravated possession of drugs counts, one of the possessing drug abuse instruments

counts, and the possession of drugs count. A jury trial then commenced on the remaining

eight counts. The jury found appellant guilty on all tried counts. The trial court merged

the involuntary manslaughter and corrupting another with drugs convictions. The state

elected to have appellant sentenced on the involuntary manslaughter conviction. By

judgment entry filed October 3, 2017, the trial court sentenced appellant to an aggregate

term of ten years in prison, with the ten year prison term for the involuntary manslaughter

conviction being mandatory time. Ashland County, Case No. 19-COA-001 3

{¶ 4} Appellant appealed his convictions and sentence. By opinion and judgment

entry filed October 31, 2018, this court affirmed in part, vacated in part, and remanded

the matter for resentencing, finding the trial court erred in pronouncing the ten year term

on the involuntary manslaughter conviction to be mandatory. State v. Luce, 5th Dist.

Ashland No. 17-COA-037,

. The trial court was ordered to resentence

appellant on that count only. A resentencing hearing was held on December 27, 2018.

By judgment entry filed same date, the trial court resentenced appellant to the original

term of ten years, without the mandatory language.

{¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 6} "THE TRIAL COURT ERRED TO CHRISTOPHER LUCE'S DETRIMENT

WHEN IN THE SENTENCING FINDINGS, IT DID NOT INCLUDE FACTORS UNDER

R.C. 2929.12, WHICH WERE SUPPORTED BY THE RECORD, THEREBY THE

SENTENCE WAS RENDERED CONTRARY TO LAW."

II

{¶ 7} "THE TRIAL COURT ERRED TO CHRISTOPHER LUCE'S DETRIMENT

WHEN HE WAS GIVEN A HEAVY INCONSISTENT SENTENCE WHILE OTHER

SENTENCES, WITH SIMILAR CRIMES WERE OF SHORTER DURATION."

I

{¶ 8} In his first assignment of error, appellant claims the trial court erred in

sentencing him because it did not include R.C. 2929.12 factors. We disagree. Ashland County, Case No. 19-COA-001 4

{¶ 9} This court reviews felony sentences using the standard of review set forth

in R.C. 2953.08. State v. Marcum,

,

,

,

¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004,

. R.C.

2953.08(G)(2) states we may either increase, reduce, modify, or vacate a sentence and

remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

{¶ 10} "Clear and convincing evidence is that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such certainty

as is required 'beyond a reasonable doubt' in criminal cases, and 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.

{¶ 11} There is no dispute that the ten year sentence is within the statutory range.

R.C. 2929.14(A)(1). Appellant argues the trial court failed to include seriousness and

recidivism factors under R.C. 2929.12.

{¶ 12} In fashioning a sentence, trial courts must consider factors under R.C.

2929.12. State v. Kalish,

,

,

;

. However, as this court stated in State v. Moyer, 5th Dist. Licking No. 18

CA 0065,

,

, ¶ 26:

There is no requirement in R.C. § 2929.12 that the trial court states

on the record that it has considered the statutory criteria concerning Ashland County, Case No. 19-COA-001 5

seriousness and recidivism or even discussed them. State v. Polick,

(4th Dist. 1995); State v. Gant, 7th Dist. No. 04 MA

252,

(nothing in R.C. § 2929.12 or the decisions

of the Ohio Supreme Court imposes any duty on the trial court to set forth

its findings), citing State v. Cyrus,

,

(1992); State v. Hughes, 6th Dist. No. WD-05-024,

, ¶ 10

(trial court was not required to address each R.C. § 2929.12 factor

individually and make a finding as to whether it was applicable in this case),

State v. Woods, 5th Dist. No. 05 CA 46,

("... R.C.

2929.12 does not require specific language or specific findings on the

record in order to show that the trial court considered the applicable

seriousness and recidivism factors"). (Citations omitted.)

{¶ 13} The trial judge who resentenced appellant was the same trial judge who

imposed the original sentence. During the resentencing hearing, the trial court stated the

following: "And of course in this case, an involuntary manslaughter charge reflects the

fact that the victim died in this matter, an individual lost their life, and I've considered and

weighed the various sentencing factors that the Court must consider and weigh as well

as the additional information that was presented to me today." December 27, 2018 T. at

7. The trial court clearly considered R.C. 2929.12(B)(2): "The victim of the offense

suffered serious physical, psychological, or economic harm as a result of the offense."

{¶ 14} The trial court further stated at 7-8: Ashland County, Case No. 19-COA-001 6

I find nothing today that changes the situation as it was presented to

me at the time of the original sentencing, and I draw the same conclusions

and inferences, and upon consideration of the statutory sentencing factors

and the information of the victim impact statements, the statements made

to the Court by the victims, * * * so all of those things collectively, and I am

finding that a ten-year prison sentence remains appropriate and consistent

with the purpose and principles of Ohio Sentencing Statutes, and the only

difference is that this is not a mandatory term.

{¶ 15} During the original sentencing hearing, the trial court found appellant has a

"high ORAS Score, high risk of recidivism, prior prison having been served, and of course

supervision history." October 2, 2017 T. at 26. The trial court clearly considered R.C.

2929.12(D)(2): "[T]he offender has a history of criminal convictions."

{¶ 16} In its December 27, 2018 judgment entry, the trial court noted "it is taking

into consideration everything previously considered by the Court at the original

sentencing hearing. The Court is also taking into consideration the letters recently sent

by the victims in this case." The trial court stated it reviewed the purposes and principles

of sentencing under R.C. 2929.11, and "considered the provisions of O.R.C. Chapter

2929, the circumstances of the offense, the information contained in the pre-sentence

investigation and the information furnished by the parties to this case." The trial court

stated it fashioned its sentence upon the purposes and principles of the felony sentencing

law and the statutory sentencing factors. Ashland County, Case No. 19-COA-001 7

{¶ 17} Upon review, we find the trial court considered the R.C. 2929.12 factors and

the sentence is not clearly and convincingly contrary to law.

{¶ 18} Assignment of Error I is denied.

II

{¶ 19} In his second assignment of error, appellant claims he was given a heavy

inconsistent sentence of ten years. We disagree.

{¶ 20} In State v. Frank, 5th Dist. Muskingum No. CT2017-0102,

, this court stated the following:

In regard to the consistency-in-sentencing argument, appellant bears

a significant burden and must provide us with the detail necessary to

establish that the sentence is inconsistent with other relevant sentences.

Thadur, supra,

,

at ¶ 19, citing State v.

Friesen, 3rd Dist. Crawford No. 3-05-06,

,

, ¶ 16-19. Ohio courts have recognized that consistency in

sentencing does not necessarily mean uniformity. See State v. Ryan, 1st

Dist. Hamilton No. C-020283,

,

, ¶ 10

(addressing felony sentencing). As an appellate court, we may decline to

compare a particular defendant's sentences with similar crimes in this or

other jurisdictions unless there is an inference of gross disproportionality.

,

at ¶ 20, citing State v. King, Ashland County, Case No. 19-COA-001 8

5th Dist. Muskingum No. CT06-0020,

,

,

¶ 26 (addressing felony sentencing).

{¶ 21} Appellant cites to five case, all of which are from other appellate districts

other than the case of his co-defendant who happened to be his wife. The co-defendant

was similarly convicted and received a sentence of eight years.

{¶ 22} As stated above, during the original sentencing hearing, the trial court found

appellant has a "high ORAS Score, high risk of recidivism, prior prison having been

served, and of course supervision history." October 2, 2017 T. at 26. A review of

appellant's presentence investigation report filed under seal supports the trial court's

findings. The trial court also found the co-defendant has a "low to moderate ORAS Score,

no prior felony history." October 2, 2017 T. at 26. As explained by our colleagues from

the Eighth District in State v. Ware, 8th Dist. Cuyahoga No. 106176,

, ¶

17:

The fact that a defendant receives a longer prison sentence than a

codefendant does not, in and of itself establish a violation of the consistency

requirement. State v. Cargill, 8th Dist. Cuyahoga No. 103902, 2016-Ohio-

5932, ¶ 13; see also Moore,

,

, at ¶ 17 ("[A]

sentence is not contrary to law because the trial court failed to impose a

sentence that is the same as [that imposed on] another offender who

committed similar conduct.' "), quoting State v. Graham, 12th Dist. Warren

No. CA3013-07-066,

; State v. Blacked, 8th Dist. Ashland County, Case No. 19-COA-001 9

Cuyahoga No. 100574,

(Although "[t]here is a

statutory mandate for consistency in sentencing," consistency does not

require "identical sentences" for codefendants.).

{¶ 23} During the resentencing hearing, the trial court noted appellant's sentence

"should be consistent for sentences for similar crimes by similar situated offenders."

December 27, 2018 T. at 6. The record reflects that the trial court properly considered

the statutory sentencing factors, weighed them, and applied them accordingly.

{¶ 24} Upon review, we do not find the trial court imposed an inconsistent sentence

or that the sentence is contrary to law.

{¶ 25} Assignment of Error II is denied.

{¶ 26} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Wise, John, J. concur.

EEW/db 625