[Cite as State v. Anderson,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190588 TRIAL NO. B-1207139 Plaintiff-Appellee, : O P I N I O N. vs. :

JUSTIN ANDERSON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 3, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Defendant-appellant Justin Anderson appeals his conviction for

trafficking in cocaine, arguing in a single assignment of error that the sentence

imposed was contrary to law. Finding his assignment of error to be without merit,

we affirm the trial court’s judgment.

Plea and Sentencing

{¶2} Anderson pled guilty on March 23, 2015, to trafficking in cocaine, a

felony of the second degree in violation of R.C. 2925.03(A). After accepting

Anderson’s plea, the trial court stayed sentencing for 60 days at Anderson’s request

and released him pending sentencing. The court indicated that it intended to impose

a sentence of three years in prison, but informed Anderson that:

I’ll give you 60 days [until sentencing], but here’s the deal. I don’t

think it’s a problem because you have not gotten in any trouble since

you have been out. You have been acting appropriate, very polite to

me and the staff, but if you don’t show up or embarrass me and my

picture appears in the paper, you know: Guy is out on bond with a 60-

day stay and commits some major crime, then you’re going to get eight

years on this consecutively to the new case, okay?

{¶3} Anderson failed to appear for sentencing and a capias was issued. He

was arrested in 2018 and returned to court for sentencing on September 16, 2019. At

the sentencing hearing, the trial court reminded Anderson that he had been

informed at the plea hearing that his failure to appear for sentencing would result in

a sentence of eight years of imprisonment. Defense counsel expressed concern with

2 OHIO FIRST DISTRICT COURT OF APPEALS

an eight-year sentence, stating that it was too extreme for the offense involved. The

following discussion took place:

Trial Court: Well, he was on probation for a gun charge. He had a

year and half hanging over his head, and I’m going to drop that as part

of the deal.

Defense counsel: But, at any rate, I just wanted you to know that my

position is that this—the eight years is sort of automatic by virtue of

your discussions that occurred.

Trial Court: It was a real serious case, and they were willing to go with

the three years because he cooperated. But he clearly—it was a serious

case, clearly deserved eight years, because he was on probation when

he did it for a gun charge and committed a major drug trafficking

charge.

{¶4} The court ultimately sentenced Anderson to eight years of

imprisonment.

Sentencing

{¶5} In his sole assignment of error, Anderson argues that the sentence

imposed was contrary to law.

{¶6} Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a

defendant’s sentence only if we clearly and convincingly find that the record does not

support the trial court’s findings under relevant statutes (specifically

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14,

or division (I) of section 2929.20 of the Revised Code) or that the sentence is

3 OHIO FIRST DISTRICT COURT OF APPEALS

contrary to law. State v. Marcum,

,

,

, ¶ 22-23; State v. White,

,

, ¶ 5 (1st Dist.).

{¶7} Anderson contends that the imposed sentence was contrary to law

because the trial court failed to consider the purposes and principles of sentencing

under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12.

{¶8} With respect to R.C. 2929.11 and 2929.12, this court has long held that

these are not fact-finding statutes, and that, absent an affirmative demonstration to

the contrary, we will presume that the trial court considered them. State v. Ingels,

1st Dist. Hamilton Nos. C-180469, C-180470 and C-180471,

.

{¶9} In State v. Jones, Slip Opinion No.

, the Ohio

Supreme Court recently held that “R.C. 2953.08(G)(2)(a) clearly does not provide a

basis for an appellate court to modify or vacate a sentence if it concludes that the

record does not support the sentence under R.C. 2929.11 and 2929.12 because * *

* R.C. 2929.11 and 2929.12 are not among the statutes listed in the provision.” Id. at

¶ 31. The court further held that a trial court’s findings under R.C. 2929.11 and

2929.12 were not reviewable under R.C. 2953.08(G)(2)(b) because “an appellate

court’s conclusion that the record does not support a sentence under R.C.

2929.11 or 2929.12 is not the equivalent of a conclusion that the sentence is

‘otherwise contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 34.

The court concluded that “[n]othing in R.C. 2953.08(G)(2) permits an appellate

court to independently weigh the evidence in the record and substitute its judgment

for that of the trial court concerning the sentence that best reflects compliance

with R.C. 2929.11 and 2929.12.” Id. at ¶ 42.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} Anderson argues the record demonstrates that the trial court failed to

consider R.C. 2929.11 and 2929.12 because the court automatically imposed the

eight-year sentence that it had informed Anderson would be imposed if he failed to

appear for sentencing. The trial court was entitled to consider Anderson’s failure to

appear at sentencing, as “[a] defendant’s failure to appear is an appropriate

recidivism factor for the trial court to consider when determining whether to impose

a maximum sentence.” State v. Chandler, 1st Dist. Hamilton No. C-190153, 2020-

Ohio-164, ¶ 7; State v. Cherry,

,

,

(1st Dist.) (a defendant’s failure to appear at sentencing may be used as a

sentence enhancing factor).

{¶11} Further, the record indicates that that the trial court based the eight-

year sentence on additional factors and not solely on Anderson’s failure to appear for

sentencing. When questioned by defense counsel about the appropriateness of an

eight-year sentence, the trial court indicated that an eight-year sentence was

warranted because Anderson had been on probation when he committed the offense

and because he had committed a major drug-trafficking offense. Anderson has not

affirmatively demonstrated that the trial court failed to consider R.C. 2929.11 and

2929.12. And pursuant to Jones, this court is clearly not permitted to independently

weigh the factors in R.C. 2929.11 and 2929.12 and substitute our judgment for that of

the trial court “concerning the sentence that best reflects compliance with R.C.

2929.11 and 2929.12.” Jones, Slip Opinion No.

.

{¶12} The sentence imposed was not contrary to law. Anderson’s

assignment of error is overruled, and the judgment of the trial court is affirmed.

Judgment affirmed.

5 OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, P.J., and BERGERON, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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