[Cite as State v. Penn,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY

State of Ohio Court of Appeals No. F-20-004

Appellee Trial Court No. 19CR18

v.

Marcus L. M. Penn DECISION AND JUDGMENT

Appellant Decided: May 21, 2021

*****

Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.

Clayton M. Gerbitz, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Appellant, Marcus Penn, appeals both the judgment entry of sentence

journalized by the Fulton County Court of Common Pleas on April 10, 2020, and the

judgment entry nunc pro tunc journalized by the same court on April 14, 2020,

sentencing him to prison for attempted murder. For the reasons that follow, we affirm the

judgments of the trial court. {¶ 2} Appellant sets forth the following assignments of error:

I. The trial court erred in finding that Appellant voluntarily,

knowingly, and intelligently waived his Miranda rights.

II. Appellant’s sentence is contrary to law and not supported by the

record.

Statement of the Case

{¶ 3} On February 11, 2019, appellant was indicted one count of attempted murder

in violation of R.C. 2903.02(A) and 2923.02(A), a felony of the first degree (Count 1);

one count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second

degree (Count 2); one count of felonious assault in violation of R.C. 2903.11(A)(1), a

felony of the second degree (Count 3); and one count of domestic violence in violation of

R.C. 2919.25(A) with a specification of a prior conviction, a felony of the fourth degree

(Count 4). Each of the four counts included a three-year firearm specification pursuant to

R.C. 2941.145(A) and 2929.14(B)(1)(a)(ii).

{¶ 4} Appellant was arraigned on February 19, 2019. The court advised appellant

of the charges and penalties, appointed counsel to represent him, and set bond at $2

million. Appellant, through counsel, entered pleas of not guilty and not guilty by reason

of insanity (“NGRI”). Further, appellant requested a competency evaluation, which the

court ordered to be conducted by the Court Diagnostic and Treatment Center.

{¶ 5} On July 2, 2019, the court conducted a competency hearing pursuant to R.C.

2945.37. The Court Diagnostic and Treatment Center NGRI and competency evaluations

2. were admitted with the consent of both parties. Upon consideration of the evaluations,

the court found that appellant was sane at the time of the alleged offenses and was

competent to stand trial.

{¶ 6} Appellant filed a motion to suppress his statements to law enforcement. On

October 1, 2019, the court conducted an evidentiary hearing on the matter. After

considering the testimony adduced and the arguments of counsel, the court denied the

motion in a judgment entry dated October 10, 2019.

{¶ 7} On January 24, 2020, appellant entered a plea of no contest to Count 1 of the

indictment (attempted murder, with the firearm specification) and to Count 4 of the

indictment (domestic violence, with the prior conviction specification). The court

ordered a presentence report and continued bond. On April 2, 2020, the court merged the

two counts and sentenced appellant to a term of 11 years in prison on the charge of

attempted murder, together with a term of 3 years in prison for the firearm specification.

The terms were ordered to be served consecutively. On April 14, 2020, the court filed a

judgment entry nunc pro tunc, correcting paragraph three of the original sentencing

judgment entry that was filed on April 10, 2020. Appellant timely appealed these entries.

Statement of the Facts

{¶ 8} Evidence of the following was adduced at the October 1, 2019 suppression

hearing. On January 26, 2019, Benigno Salazar, an officer with the Toledo Police

Department, came into contact with appellant. Salazar was dispatched when appellant’s

family reported that appellant was intoxicated and waving a gun around.

3. {¶ 9} As Salazar arrived on the scene, but was still approximately 50 yards from

the house, appellant came around the side of the house, threw down the gun, and laid

down in the snow as if he was giving himself up. Salazar believed that appellant threw

down the gun in the manner that he did in order to make it clear to the officer that

appellant no longer possessed the gun. Appellant undertook all of these actions while

Salazar was still in his vehicle.

{¶ 10} Appellant appeared disheveled and was heavily intoxicated, with Salazar

able to smell the alcohol. Salazar handcuffed appellant and placed him in the back of his

patrol car, as appellant was going to be taken to jail and charged with possession of a

firearm while intoxicated. Salazar also spoke with appellant’s sister, who had called the

police when she thought that he might have been suicidal. Once in the patrol car,

appellant indicated that he needed some medication and requested to go to St. Charles

Hospital. Salazar told him, “[N]o, you are going to jail.”

{¶ 11} Salazar did not read appellant his Miranda rights, because it is the Toledo

Police Department’s policy that patrolmen do not question suspects. Instead, the Toledo

Police Department’s policy is to have detectives Mirandize suspects just prior to, and in

connection with, their formal questioning. Given this policy, Salazar did not interview,

interrogate, or question appellant as Salazar was driving appellant to jail. At one point,

while Salazar was discussing with appellant the charges that would be filed against him,

appellant became irritated and volunteered a statement to the effect that he had killed a

female, and that such was the only offense for which he would be charged. He further

4. volunteered words to the effect that the devil made him do it, or that the devil told

appellant to set her free. Following appellant’s statement that he had killed someone,

Salazar asked appellant why he had plastic gloves on his hands, but thereafter Salazar

refrained from asking any further questions.

{¶ 12} Given appellant’s statement, Salazar decided not to drive appellant to the

jail, and, instead, took him to speak with Detective Jeff Quigley. As they were driving,

appellant asked Salazar if he wanted to “know”—a statement that Salazar took to mean

that appellant was asking Salazar if he wanted appellant to keep talking. Salazar did not

respond, stating only that they were going to talk with someone else. During the drive,

Salazar noticed appellant mumbling in the back seat of the patrol car, as if he were

talking to somebody who was not there.

{¶ 13} Once appellant was brought to Quigley for questioning, and prior to his

being questioned, appellant’s handcuffs were removed. Appellant, who was 30 years old,

was read his Miranda rights, he acknowledged that he understood those rights, and he

affirmatively waived them. Although the questioning only lasted about 45 minutes (and

for much of that time Quigley was out of the room), appellant was provided with

cigarettes, food, and water. Appellant refused a bag of candy that was provided, stating

that he was allergic to chocolate.

{¶ 14} According to Quigley, although appellant was emotional, crying, and upset,

it appeared that he understood what Quigley was saying, never giving any indication to

the contrary. Supporting Quigley’s testimony was the video of the interview, which

5. showed appellant begin to orally articulate his Miranda rights along with Quigley as

Quigley read them aloud. When Quigley was speaking with appellant, appellant engaged

directly with him and did not appear disoriented or confused, although Quigley

acknowledged that appellant had indicated something to the effect that the devil made

him do it. When Quigley left the room, appellant would talk to himself and, further,

indicated that he was hearing voices. Appellant told Quigley that he suffered from

schizophrenia/bipolar and rage disorder and that he had not slept in nine days. He also

told Quigley that he wanted to go to St. Charles Hospital so he could get his medication.

{¶ 15} During the interview, appellant stated that he had shot his “wife” in

Swanton and he provided Quigley with his wife’s name and address.1 Appellant also

stated that there was a two-month-old baby in the home. Quigley passed this information

along to the Fulton County sheriff’s office so that they could check on the wife’s safety.

As a result of the safety check, it was discovered that the victim described by appellant

had, in fact, been shot at the address appellant had provided.

{¶ 16} Approximately five and one-half hours after Quigley’s interview ended,

Lieutenant Chris Blosser of the Swanton Police Department reported to the Toledo Police

Department to conduct a follow-up interview of appellant. Blosser confirmed that

appellant had been Mirandized and informed appellant that those rights were still in

effect. Blosser then asked appellant if he was willing to speak with Blosser, and

1 During the interview process, appellant variously referred to the victim as his wife, fiancée, and as the mother of his youngest child.

6. appellant stated that he was willing to do so. During this second interview, appellant’s

handcuffs were again removed, and appellant was provided with cigarettes and water.

{¶ 17} According to Blosser, appellant did not appear to be confused. This

testimony was supported by video of the interview, which showed that appellant was

much less emotional and distraught than he had been while being questioned by Quigley.

Blosser believed that appellant knew what was occurring and testified that appellant had

been able to effectively communicate with him.

{¶ 18} During the course of the interview, appellant acknowledged that he and the

victim had moved to Swanton a few months earlier. Appellant told Blosser that he had

shot his girlfriend in Swanton. Appellant knew that the gun that was used to shoot the

victim was a .380. Further, appellant was able to provide Blosser with the code to the

victim’s cell phone so that law enforcement personnel could contact the victim’s family,

and he specifically identified who the officers should contact. Appellant stated that he

knew he would be going to jail and he asked Blosser if he could be segregated while at

the Corrections Center of Northwest Ohio, rather than being put in with other inmates, as

he feared repercussions from his prior life as a gang member. Appellant reiterated that

the devil had made him shoot his girlfriend, in order to set her free. The interview was

roughly 22 minutes in length.

{¶ 19} Based on the evidence presented, the trial court, in overruling appellant’s

motion to suppress, made the following findings of fact and conclusions of law. Salazar

did not Mirandize appellant, but because appellant’s statement to Salazar that appellant

7. had killed someone was made spontaneously, and was not made in response to

questioning, there was no violation of appellant’s Miranda rights.

{¶ 20} With respect to appellant’s interaction with Quigley, the trial court stated:

* * * Detective Quigley refused to allow the Defendant to make any

statements until the Defendant was mirandized. The Defendant indicated

before the Miranda warnings were given, that he understood his rights. In

the video which was presented, the Defendant began stating the rights

simultaneously with Detective Quigley. The Defendant indicated he

understood his rights. The Defendant then stated that he thought he had

killed his fiancée.

***

During the period while the detective was not in the office, the

Defendant appeared to have a running conversation with the voice in his

head. However, the Defendant had no trouble responding to the detective’s

questions. The Defendant frequently asked what was going to happen to him;

what charges he was going to receive; and if he could be taken to St. Charles

Hospital. The Defendant was also cognizant of the fact that he was allergic

to chocolate and could not eat the M&M’s that had been provided by

Detective Quigley.

***

8. In reviewing the totality of the circumstances, the Court notes the

Defendant was aware of his constitutional rights and in fact began quoting

them along with Detective Quigley. The Defendant indicated that he was

suffering from mental illness, had not taken his meds, had not slept, and

was concerned for his fiancée’s well-being because there was one less

bullet in the chamber of the gun. The Defendant knew that it was possible

he might be incarcerated and indicated to the detective he preferred to go to

St. Charles Hospital to get his medication. The Defendant repeatedly asked

what was going to happen to him as a result of what he did to his fiancée.

The Defendant repeatedly said [and the court is paraphrasing here] that he

had made a terrible mistake and people don’t do this sort of thing to people

they care for. All this indicates the Defendant was cognizant of his

surroundings, the seriousness of what may have happened and the jeopardy

into which he had placed himself.

The Defendant had no problem responding to Detective Quigley’s

questions. He was aware of the potential consequences for his actions.

He never claimed the voices in his head were telling him to confess.

He simply indicated the voices in his head were the reason he shot his

fiancée -- to set her free.

9. Based on the totality of the circumstances, this Court believes the

Defendant’s confession was knowingly and voluntarily given after

surrendering his constitutional rights as contained in the Miranda warning.

{¶ 21} Finally, with respect to appellant’s interaction with Blosser, the trial court

recognized that: (1) Blosser had asked appellant if he remembered the Miranda warnings

that he had been given previously; (2) appellant acknowledged that he did remember the

warnings; (3) Blosser reiterated that the warnings were still applicable to Blosser’s

questioning; and (4) appellant acknowledged that he understood. The trial court then

stated:

In this case, the lapse of time was not significant other than it

provided the Defendant an opportunity to compose himself. The

interrogations occurred in the same building although not in the same room.

The Defendant acknowledged he recalled his Miranda warnings and

understood they were applicable to the second interview. The statement the

Defendant made did not significantly differ from (in fact the second

statement was almost identical to) the first statement. The Defendant was

far less stressed than he was during the initial interview by Detective

Quigley.

{¶ 22} At the sentencing hearing, the trial court heard from counsel, appellant, and

the victim’s mother, who spoke on the victim’s behalf. The victim’s mother described

her family’s anguish, having been told by the doctors that they should “pull the plug” on

10. the victim, whose skull had been pierced by the bullet through her right eyebrow. The

victim’s mother described the extensive rehabilitation that her daughter has had to

undergo, which has allowed her daughter to speak again. Unfortunately, given the

damage that was done, the victim can still see out of only one eye. The victim’s mother

further described how her daughter had laid in the hospital for over one year, since “[s]he

can’t help herself at all,” and that “[w]ithout help she just lays there.” The victim’s

mother also made the trial court aware of the victim’s recollection of the incident,

describing how the victim was afraid as appellant placed the gun up to her head while she

was down on her knees trying to keep him from shooting their baby.

{¶ 23} When the trial court sentenced appellant, it expressly stated in its judgment

entry of sentence that it had considered “the record, oral statements, any victim impact

statement and presentence report prepared, as well as the principles and purposes of

sentencing under O.R.C. §2929.11,” and that it had “balanced the seriousness and

recidivism factors under O.R.C. § 2929.12.” At the sentencing hearing, the trial court

additionally provided:

The Court has considered the record, the oral statements, the victim

impact statement, presentence report, the purposes and principles of

sentencing under Revised Code Section 2929.11[,] [t]he seriousness and

recidivism factors relevant to the offense and the offender pursuant to

Revised Code Section 2929.12, and the need for deterrent, incapacitation

and rehabilitation. I’m always guided by the overriding purposes of felony

11. sentencing, including protection of the public from future crime by this

offender and others, while punishing the offender using the minimum

sanctions the Court determines it necessary to accomplish those purposes

without imposing an unnecessary burden on either State or local

government resources.

In reviewing this case, the Court would note the offender has a

history of some criminal convictions * * *. The offender clearly has not

been rehabilitated and has not responded favorably to sanctions previously

imposed. I would disagree with the other finding in this report however

that the offender shows no genuine remorse. I believe that he does. * * *.

* * * Those factors the Court is required to look at making the

offense more serious, it’s clear here that the victim suffered horrendous

physical injuries. The offender’s relationship with the victim facilitated the

offense. And this is essentially an act of domestic violence, aggravated

assault, so felonious assault. I also agree with the Prosecutor, who

indicated he, at the time of sentencing that these two charges probably

merged and they do. There isn’t any doubt in my mind and the Prosecutor

has elected to move forward on the charges of attempted murder.

The Court finds having considered the factors set forth in Revised

Code Section 2929.12, that a prison term is consistent with the principles

and purposes of sentencing set forth in Revised Code Section 2929.11, and

12. that the Defendant is not amenable to an available community control

sanction. The Court further finds that a combination of community control

sanctions would demean the serious [sic] of the Defendant’s conduct and

that conduct’s impact on the victim, and that a sentence of imprisonment is

commensurate with the seriousness of the Defendant’s conduct and its

impact on the victim. And that a prison sentence does not place an

unnecessary burden on State government resources.

That having been said the Defendant is hereby sentenced to a term of

eleven years to be served at the Department of Rehabilitation and

Correction. The Defendant is further ordered to serve three years for the

firearm specification attached to Count I, to which the Defendant has pled

in addition to the eleven years.

Analysis

{¶ 24} Appellant argues in his first assignment of error that the trial court erred in

finding that appellant voluntarily, knowingly, and intelligently waived his Miranda

rights. This court, in State v. Ruffer, 6th Dist. Fulton No. F-11-007,

,

articulated the applicable standard of review for a trial court’s denial of a motion to

suppress, as follows:

Review of a trial court’s denial of a motion to suppress presents mixed

questions of law and fact. State v. Burnside,

, 2003-

Ohio-5372,

. “When considering a motion to suppress,

13. the trial court assumes the role of trier of fact and is therefore in the best

position to resolve factual questions and evaluate the credibility of

witnesses. State v. Mills (1992),

,

.”

An appellate court defers to a trial court’s factual findings made

with respect to its ruling on a motion to suppress where the findings are

supported by competent, credible evidence. Id.; State v. Brooks,

,

(1996). “[T]he appellate court must then

independently determine, without deference to the conclusion of the trial

court, whether the facts satisfy the applicable legal standard. State v.

McNamara (1997),

,

.” State v.

.

Id. at ¶ 5.

{¶ 25} The law is clear that “the requirement that police officers administer

Miranda warnings applies only when a suspect is subject to both custody and

interrogation.” State v. Neyland,

,

,

. “An unsolicited and spontaneous statement * * * is not the product of

interrogation, so Miranda does not apply. Id.; see also State v. Beightler, 3d Dist. Hardin

No. 6-18-11,

. In the instant case, the trial court specifically

held, on the basis of competent, credible evidence, that appellant’s statements to Salazar

were spontaneously made, and therefore were not subject to Miranda. We agree with this

conclusion.

14. {¶ 26} Next, we consider appellant’s statements to Quigley and Blosser, all of

which were clearly made within the context of a custodial interrogation. “Prior to a

custodial interrogation, the Fifth Amendment requires that a suspect receive Miranda

warnings to protect against self-incrimination.” State v. Velliquette, 6th Dist. Lucas No.

L-19-1232,

,

, ¶ 13 (citations omitted) (quotations

omitted). Thus, “the prosecution may not use statements obtained through a custodial

interrogation that lacked the requisite Miranda safeguards.”

(Citations omitted.)

Where, as here, a suspect proceeds to answer questions after having received Miranda

warnings and then later challenges incriminating statements as involuntary, “the state

must prove by a preponderance of the evidence that the defendant made a knowing,

intelligent, and voluntary waiver of his Miranda rights.” State v. Reynolds, 6th Dist.

Lucas No. L-16-1021,

,

.

{¶ 27} To be a valid waiver, two conditions must be satisfied:

First, the relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have been

made with a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it. Only if the “totality of

the circumstances surrounding the interrogation” reveal both an uncoerced

choice and the requisite level of comprehension may a court properly

conclude that the Miranda rights have been waived.

15. Moran v. Burbine,

,

,

(1986) (citations

omitted). Factors to consider when evaluating the totality of the circumstances include

“the age, mentality, and prior criminal experience of the accused; the length, intensity,

and frequency of interrogation; the existence of physical deprivation or mistreatment; and

the existence of threat or inducement.” State v. Dixon,

, 2004-Ohio-

1585,

, ¶ 25. “By definition of ‘totality,’ a court is to look to all of the

evidence to determine a suspect’s understanding, which can be implied by his conduct

and the situation.” Reynolds at ¶ 65.

{¶ 28} In the instant case, appellant does not argue that the police engaged in any

coercion or other misconduct during his interrogations; instead, he argues that his

statements were not voluntary based solely on his “mental defects/distress.” In

evaluating this argument, we are mindful that “the touchstone of an involuntary

confession is police misconduct and the defendant’s mental condition is merely one

factor in the totality of the circumstances to be considered in determining constitutional

voluntariness.” Reynolds at ¶ 69. Stated otherwise, “the voluntariness of a defendant’s

waiver of Miranda rights -- as well as the voluntariness of any resulting confession --

‘depend[s] on the absence of police overreaching, not on “free choice” in any broader

sense of the word.’” Id. at ¶ 68, quoting Colorado v. Connelly,

,

,

(1986); see also State v. Hughbanks,

, 2003-

Ohio-4121,

(“The voluntariness of [a defendant’s] statement

depends on whether the police engaged in coercion and misconduct and not whether [the

16. defendant] was mentally ill.”). Thus, “a suspect’s mental illness, standing alone, is

insufficient to render either a Miranda waiver or subsequent confession involuntary.”

Reynolds at ¶ 71.

{¶ 29} Our review of the record reveals no evidence of police coercion or

overreaching. The Quigley interview of the then 30-year-old appellant was not

confrontational in any way, and it lasted for only 45 minutes. During Quigley’s

questioning, appellant was not handcuffed and he was provided with cigarettes, food, and

water. While appellant was emotional and upset, he indicated that he understood his

rights, he answered Quigley’s questions appropriately, and he appeared to understand

what was happening.

{¶ 30} The Blosser interview, which took place roughly five and one-half hours

after Quigley’s interview ended, was likewise not confrontational in any way, and it

lasted only about 22 minutes. During Blosser’s questioning, appellant was not

handcuffed and he was provided with cigarettes and water. Appellant, who was much

less emotional than during his interview with Quigley, indicated that he understood his

rights, he answered Blosser’s questions appropriately, and he appeared to understand

what was happening.

{¶ 31} Considering the totality of the circumstances, we find that appellant’s

waiver of his Miranda rights and his subsequent confessions to the police were

constitutionally voluntary. Accordingly, appellant’s first assignment of error is found not

well-taken.

17. {¶ 32} Appellant argues in his second assignment of error that his sentence is

contrary to law and is not supported by the record, because the trial court only expressly

acknowledged two of the three overriding purposes of felony sentencing that are set forth

in R.C. 2929.11.

{¶ 33} R.C. 2953.08(G)(2) allows an appellate court to “increase, reduce, or

otherwise modify a sentence” or “vacate the sentence and remand the matter to the

sentencing court for resentencing” if it clearly and convincingly finds “(a) [t]hat the

record does not support the sentencing court’s findings under 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, whichever, if any, is relevant,” or “(b) [t]hat the sentence is

otherwise contrary to law.”

{¶ 34} There is no question that the first prong, under R.C. 2953.08(G)(2)(a), is

inapplicable to the analysis at hand. Therefore, we are left to examine whether the

sentences are clearly and convincingly “otherwise contrary to law” as provided for in

R.C. 2953.08(G)(3)(b).

{¶ 35} R.C. 2929.11, which addresses the overriding purposes of felony

sentencing, relevantly provides:

(A) A court that sentences an offender for a felony shall be guided

by the overriding purposes of felony sentencing. The overriding purposes

of felony sentencing are to protect the public from future crime by the

offender and others, to punish the offender, and to promote the effective

18. rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary

burden on state or local government resources. To achieve those purposes,

the sentencing court shall consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or

both.

(B) A sentence imposed for a felony shall be reasonably calculated

to achieve the three overriding purposes of felony sentencing set forth in

division (A) of this section, commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders.

(Emphasis added).

{¶ 36} According to appellant, the court, in expressly addressing the purposes of

(1) protecting the public from future crime by the offender, and (2) punishing the

offender, “specifically omit[ted]” the third factor of promoting the effective rehabilitation

of the offender, and, therefore “could not have considered the effective rehabilitation of

[appellant] when ordering that he serve the maximum sentence of 14 years in prison.”

{¶ 37} This court has previously recognized that where a trial court has considered

the purposes and principles of sentencing in R.C. 2929.11, has considered the sentencing

19. factors listed in R.C. 2929.12, has properly applied postrelease control, and has sentenced

the defendant within the statutorily permissible range, the sentence was not clearly and

convincingly contrary to law. See State v. Tammerine, 6th Dist. Lucas No. L-13-1081,

, ¶ 15, citing State v. Kalish,

,

,

. “A trial court’s statement that it has considered R.C. 2929.11 and

2929.12 in determining a sentence is sufficient to show the court’s compliance.” State v.

Acosta, 6th Dist. Lucas Nos. L-20-1068, L-20-1069,

. Further,

“[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.” State v. Jones,

Slip Opinion No.

.

{¶ 38} First, we note that the permissible statutory sentencing range for a felony of

the first degree such as the conviction underlying this case is between 3 and 11 years, and

the mandatory, consecutive, sentence for the gun specification is 3 years. See R.C.

2929.14(A)(1)(b); R.C. 2941.145(A); R.C. 2929.14(B)(1)(a)(ii); R.C. 2929.14(C). Thus,

we find that the term of incarceration imposed in this case falls within the statutorily

permissible range. The record also shows that the trial court properly applied postrelease

control. Finally, the trial court expressly stated that it considered the purposes and

principles of sentencing in R.C. 2929.11, and considered the sentencing factors listed in

R.C. 2929.12. That the trial court specifically mentioned and discussed two of the three

overriding purposes of felony sentencing—namely, punishment and protection of the

20. public—is reasonable, given the horrific nature of the crime and the injuries sustained by

the victim. In no way does the court’s mention of those two purposes signify or

otherwise imply a lack of consideration of the third. Based on the foregoing, we find that

appellant’s sentence was not clearly and convincingly contrary to law. Therefore,

appellant’s second assignment of error is found not well-taken.

{¶ 39} We affirm the judgments of the Fulton County Court of Common Pleas.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgments affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Christine E. Mayle, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

21.