[Cite as State v. Irwin,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108099 v. :

JEFFREY IRWIN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 31, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628638-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Fallon Radigan, Assistant Prosecuting Attorney, for appellee.

Mark A. Stanton, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant.

EILEEN A. GALLAGHER, J.:

Defendant-appellant Jeffrey Irwin appeals his 25-year sentence after

he pleaded guilty to committing multiple sexual crimes against his daughter when

she was between 9 and 13 years old. We affirm. Irwin was originally charged in an 11-count indictment that consisted

of four counts of rape, four counts of kidnapping, two counts of gross sexual

imposition and one count of endangering children. Irwin pleaded guilty to two

amended counts of rape, two counts of gross sexual imposition and the count of

endangering children. The trial court imposed an aggregate 25-year sentence. This

appeal follows.

Irwin challenges his sentence in two interrelated assignments of

error:

1. The trial court imposed a sentence contrary to law on Mr. Irwin, a first time offender, when it applied incorrect assumptions about recidivism and failed to apply the factors weighing heavily against recidivism.

2. Jeffrey Irwin was denied his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 10 and 16 of the Ohio Constitution when the judge imposed his sentence based on improper considerations.

We address these assignments of error together.

Relevant Factual and Procedural Background

Before Irwin pleaded guilty, the court informed him of the degrees of

the offenses to which he would be pleading guilty as well as the possible penalties

for each. The rape counts, both felonies of the first degree, would each subject Irwin

to a prison term between 3 and 11 years. Irwin’s gross sexual imposition counts were

“high-tier” felonies of the third degree, each exposing him to a prison sentence

between 12 and 60 months. The endangering children count, a felony of the second

degree, would further subject Irwin to a prison term between two and eight years. The court explained that it could impose consecutive sentences. Irwin confirmed

that he understood the potential penalties and that he had no questions.

The court sentenced Irwin to ten years for each count of rape, five

years for each count of gross sexual imposition and six years for the count of

endangering children. It ordered consecutive sentences for the counts of rape as

well as one count of gross sexual imposition. For the remaining count of gross sexual

imposition as well as the child endangering count, the court ordered those sentences

to run concurrent.

Law and Analysis

A trial court must do two things before it imposes a felony sentence:

(1) it must ensure that the sentence falls within the statutory range prescribed by the

degree of the felony and (2) it must consider the purposes of felony sentences as

contained in R.C. 2929.11 as well as the applicable seriousness and recidivism

factors outlined in R.C. 2929.12. State v. Lariche, 8th Dist. Cuyahoga No. 106106,

, ¶ 14-16.

An appellate court reviews a felony sentence pursuant to R.C.

2953.08(G)(2). State v. Marcum,

,

,

, ¶ 1, 21-23. Where a trial court imposes a sentence “solely after consideration

of the factors in R.C. 2929.11 and 2929.12,” an appellate court may disturb a

sentence “that is not clearly and convincingly contrary to law only if the appellate

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

sentence.” State v. Ware, 8th Dist. Cuyahoga No. 106176,

, quoting Marcum at ¶ 23. Because appellate courts do not review a felony sentence

for abuse of discretion, we are prohibited from substituting our judgment for that of

the trial court. State v. Taylor, 8th Dist. Cuyahoga No. 107881,

.

Although a trial court must comply with R.C. 2929.11 and 2929.12

when it imposes sentence on a particular felony, it is under no obligation to use

particular language or to make specific finding on the record to demonstrate this

compliance. State v. Gaines, 8th Dist. Cuyahoga No. 103476,

.

Even where a trial court does not reference its consideration of R.C. 2929.11 and

2929.12 at the sentencing hearing or in its sentencing journal entry, this court has

held that such compliance can be presumed unless the defendant shows otherwise.

See, e.g., State v. Jones, 8th Dist. Cuyahoga No. 99759,

.

As stated, each of Irwin’s felony sentences fall within the applicable

sentencing ranges. Moreover, the trial court confirmed in its sentencing journal

entry that it “considered all required factors of the law” and found that “prison is

consistent with the purpose of R.C. 2929.11.” The court thus complied with its

statutory obligations when sentencing Irwin.

Irwin nevertheless argues that the trial court erred because his

“lengthy 25-year sentence is not supported by the record and is, in fact, contrary to

law as it does not meet the purposes of felony sentencing.” We do not construe Irwin’s claims as challenging consecutive sentences.1 Irwin does not challenge the

sentence for any particular count but, instead, challenges his aggregate sentence, on

the basis that the court failed to comply with R.C. 2929.11 and 2929.12.

As discussed, R.C. 2929.11 and 2929.12 relate to the particular

sentence that a court imposes relative to an individual count. See State v. Saxon,

,

,

, ¶ 8 (“Ohio’s felony-

sentencing scheme is clearly designed to focus the judge’s attention on one offense

at a time.”). These statutes do not otherwise provide a basis to challenge an

aggregate sentence. See State v. Choate, 9th Dist. Summit No. 27612, 2015-Ohio-

4972, ¶ 27 (“R.C. 2929.11 clearly is aimed at the sentence for each individual offense,

not the sentences in the aggregate * * *.”); see State v. Kirkman, 8th Dist. Cuyahoga

No. 103683,

(“R.C. 2929.12 guides a sentencing judge’s

discretion only on individual counts * * *”). Accordingly, Irwin’s challenge to his

aggregate sentence on the basis of the court’s R.C. 2929.11 and 2929.12 compliance

necessarily fails.

Even if we were to interpret Irwin’s claims on appeal as challenging a

particular felony sentence rather than his entire 25-year sentence, his arguments

would still fail.

1 We note that a consecutive sentence challenge in this case would fail. Review of the record indicates the court imposed consecutive sentences in compliance with R.C. 2929.14(C)(4) by making the requisite findings at the sentencing hearing and by reflecting that it did so in its journal. See State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019- Ohio-1529, ¶ 17-18. Irwin claims the trial court determined his sentence based “upon its

erroneous belief that [he] was more likely to commit future sexual offenses” based

on evidence that “[he] was himself a victim of childhood sexual abuse,” and because

his crimes were crimes of incest. Irwin offers that the trial court should have instead

concluded that his status as a victim of sexual abuse himself, “alone[,] does not make

him more likely to offend,” and further, that the incestuous nature of his crimes

“make him less likely to reoffend than any other sexual offender.” We find no

support in the record for Irwin’s claim that the trial court impermissibly used his

status as a victim of sexual abuse against him.2

Additionally, Irwin claims that the record does not support his

sentence to the extent that: (1) he had no criminal history, (2) he was “extremely

emotional and crying the majority of the interview” for his presentence investigation

report, (3) his drug and alcohol addiction played a role the crimes and (4) he was

“candid and remorseful.” Assuming that the above is true, we find no basis to

conclude that the trial court did not consider it.

By asserting that the trial court “rested its sentencing decision upon”

on inappropriate conclusions, Irwin’s claims amount to an argument that the trial

court incorrectly considered R.C. 2929.11 and 2929.12 and that this court should,

therefore, evaluate them differently. In essence, Irwin asks us to do something we

2 To the contrary, the court recognized that there was “no information to suggest” that Irwin would reoffend on the basis that he was himself abused. The court did recognize that the presentence investigation report found Irwin to be at a “high risk” of reoffending. are not empowered to do, namely substitute our judgment for the trial court and re-

weigh the sentencing factors. See State v. Franklin, 8th Dist. Cuyahoga No. 107482,

(an appellate court may not substitute its judgment for the

trial court); see Taylor,

(an appellate court may not

independently weigh the sentencing factors).

Accordingly, we are unable to conclude by clear and convincing

evidence that the trial court’s R.C. 2929.11 and 2929.12 considerations are not

supported by the record or that Irwin’s sentences are contrary to law. We overrule

the assignments of error.

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 out this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. 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.

EILEEN A. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR