[Cite as State v. Worthen,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29043 : v. : Trial Court Case No. 2020-CR-3213 : DIAMOND WORTHEN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 13th day of August, 2021.

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MATHIAS H. HECK, JR. by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant

............. -2-

EPLEY, J.

{¶ 1} Defendant-Appellant Diamond Worthen pled guilty to harassment by an

inmate (bodily substance) in violation of R.C. 2921.38(A), a felony of the fifth degree, and

was sentenced to 12 months in prison, to be served concurrently with a sentence in

another case. Worthen appeals from her conviction, claiming that the trial court abused

its discretion in imposing a 12-month sentence due to its failure to properly consider R.C.

2929.11 and R.C. 2929.12 at sentencing. For the following reasons, the trial court’s

judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} In September 2020, Worthen was incarcerated on her conviction for assault

on a peace officer in Montgomery C.P. No. 2020-CR-604. On September 29, she

engaged in criminal conduct toward a corrections officer that resulted in a charge of

harassment by an inmate (bodily substance). Worthen was indicted for that offense on

December 8, 2020, and initially pled not guilty to the charge. The trial court scheduled

status and scheduling conferences. After several continuances, the scheduling

conference was reset to February 12, 2021.

{¶ 3} On the date of the pretrial conference, Worthen changed her plea from not

guilty and entered a guilty plea to the charged offense. The trial court conducted a

Crim.R. 11 plea hearing, during which Worthen stated that she was 19 years old, had

attended school through 11th grade, and was neither under the influence of drugs or

alcohol nor had difficulty understanding the proceedings. Worthen indicated that she

was serving a prison sentence; she had completed her supervision in a separate juvenile

case. -3-

{¶ 4} The trial court informed Worthen of the maximum possible penalties for

harassment by an inmate, which included a prison sentence of 6, 7, 8, 9, 10, 11, or 12

months in prison. The court further told Worthen that she was eligible for community

control sanctions, but it was going to sentence her to 12 months in prison, concurrently

with the sentence she was then serving in Case No. 2020-CR-604. Worthen told the

court that she did not understand what that meant. The court explained, “You’re going

to do extra time. But between now and the time you finish your sentence that Judge

Dankof gave you on the assault on a peace officer case, you’ll be earning credit on both

cases.” When Worthen asked what her “out date” would be, the court responded, “I don’t

know what your out date will be because – I would suspect your out date would be a year

from now less one day [of jail time credit].” After initially expressing surprise at her

additional incarceration, Worthen stated that she wanted to proceed with her plea.

{¶ 5} The court then explained the effect of a guilty plea and the constitutional

rights that Worthen was waiving by her plea. Worthen expressed that she understood.

The prosecutor read the facts underlying the offense, as alleged in the indictment, and

Worthen, after first stating that she did not agree, indicated that they were true. Worthen

reiterated that she wanted to enter a plea of guilty, and the court accepted her plea as

knowing, intelligent, and voluntary.

{¶ 6} The trial court immediately proceeded to sentencing. Neither defense

counsel nor Worthen spoke on Worthen’s behalf. The court imposed sentence, stating

in part:

Ma’am, after considering the purposes and principles of sentencing, the

seriousness and recidivism factors, and I do have your pre-sentence -4-

investigation from the case I had with you previously in case number 19-

CR-3203, because that does give me your juvenile history in addition, I am

going to sentence you to 12 months at the Ohio Reformatory for Women.

You’ll be given all applicable jailtime credit which is one day. That will be

served concurrently with -- just a minute, let me get the case number. With

case number 20-CR-604. All costs will be waived.

The trial court’s judgment entry, which was filed on February 18, 2021, was consistent

with its oral pronouncement.

{¶ 7} Worthen appeals from the trial court’s judgment.

II. Review of Worthen’s Sentence

{¶ 8} In her sole assignment of error, Worthen claims that the trial court “failed to

adequately consider the sentencing statutes pursuant to ORC §§ 2929.11-2929.12,

abusing its discretion in sentencing Appellant.” Worthen argues that the trial court failed

to consider all of the relevant factors and, instead, considered only those factors that were

unfavorable to her. She asserts that the trial court should have indicated how it weighed

the sentencing factors, that her conduct was less serious than conduct normally

constituting the offense, and that there were mitigating circumstances, such as her age

and level of education. Upon review of the record, we find no error in the court’s

consideration of R.C. 2929.11 and R.C. 2929.12.

{¶ 9} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021,

, ¶ 45 (2d Dist.). In determining an appropriate sentence, the -5-

trial court may consider information beyond that strictly related to the conviction offense.

State v. Bowser,

,

,

(2d Dist.).

This is because the court is no longer concerned with the narrow issue of guilt. Bowser

at ¶ 14; State v. Wiles, 2d Dist. Clark No. 2017-CA-69,

. A court

may consider, for example, the circumstances underlying the offense, information

contained in a presentence investigation report, hearsay evidence, prior arrests, facts

supporting a charge that resulted in an acquittal, and facts related to a charge that was

dismissed under a plea agreement. E.g., State v. McNeil, 2d Dist. Clark No. 2019-CA-

51,

; State v. Bodkins, 2d Dist. Clark No. 2010-CA-38, 2011-Ohio-

1274, ¶ 43; Wiles at ¶ 19.

{¶ 10} However, in exercising its discretion, a trial court must consider the statutory

policies that apply to every felony offense, including those set out in R.C. 2929.11 and

R.C. 2929.12. State v. Leopard,

,

,

(2d Dist.), citing State v. Mathis,

,

,

.

{¶ 11} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others, to punish the offender, and to promote the effective 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.” R.C. 2929.11(A). The court must “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.”

R.C. -6-

2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably

calculated to achieve the three overriding purposes of felony sentencing * * *,

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.”

{¶ 12} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth

four factors indicating that an offender’s conduct is less serious than conduct normally

constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts

are to consider regarding the offender’s likelihood of committing future crimes. Finally,

R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service

record, if any.

{¶ 13} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum,

,

,

, ¶ 9. Under that

statute, an appellate court may increase, reduce, or modify a sentence, or it may vacate

the sentence and remand for resentencing, only if it “clearly and convincingly” finds either

(1) that the record does not support certain specified findings or (2) that the sentence

imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16, 2017-

Ohio-4097, ¶ 6.

{¶ 14} The Ohio Supreme Court recently stated that R.C. 2953.08(G)(2)(b) “does

not provide a basis for an appellate court to modify or vacate a sentence based on its

view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” -7-

State v. Jones,

,

,

. “When

reviewing felony sentences that are imposed solely after considering the factors in R.C.

2929.11 and R.C. 2929.12, we do not analyze whether those sentences are unsupported

by the record.” State v. McDaniel, 2d Dist. Darke No. 2020-CA-3,

,

citing State v. Dorsey, 2d Dist. Montgomery No. 28747,

;

. Instead, “[w]e simply must determine whether those sentences are contrary to

law.” Dorsey at ¶ 18. “A sentence is contrary to law when it does not fall within the

statutory range for the offense or if the trial court fails to consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set

forth in R.C. 2929.12.” (Citation omitted.) State v. Brown,

,

(2d Dist.).

{¶ 15} In this case, the trial court complied with its obligation to consider the

statutory policies that apply to every felony offense, including those set out in R.C.

2929.11 and R.C. 2929.12. The court expressly stated at sentencing that it had

considered the purposes and principles of sentencing and the seriousness and recidivism

factors. The court informed the parties that it had considered Worthen’s presentence

investigation report from a prior case, Case No. 2019-CR-3203. Although the court did

not make explicit findings regarding each of the sentencing factors, there is nothing in the

record to suggest that the court failed to consider each of them. To the extent that

Worthen claims that her 12-month sentence is not supported by the record under R.C.

2929.11 and R.C. 2929.12, that argument is precluded by Jones.

{¶ 16} Worthen’s assignment of error is overruled.

III. Conclusion -8-

{¶ 17} The trial court’s judgment will be affirmed.

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TUCKER, P. J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr. J. Joshua Rizzo Thomas M. Kollin Hon. Mary Katherine Huffman