Timothy Young, Ohio State Public Defender, and Katherine R.
Ross-Kinzie, Assistant Ohio State Public Defender, Columbus,
Ohio, for Appellant.
Colleen S. Williams, Meigs County Prosecuting Attorney, and
James K. Stanley, Assistant Meigs County Prosecuting
Attorney, Pomeroy, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
Matthew W. McFarland, Judge.
Anthony A. Carpenter appeals the judgment entry of the Meigs
County Common Pleas Court, dated August 23, 2016. In June
2016, Carpenter entered a plea of guilty to one count of
Burglary, a violation of RC. 2911.12(A)(3) of the Ohio
Revised Code. On appeal, Carpenter asserts the trial court
erred by sentencing him to a maximum prison term. He also
asserts the trial court erred by its failure to properly
calculate the jail time credit to which he was entitled.
After carefully reviewing the record, we find no merit to
either assignment of error. Accordingly, we overrule both
assignments of error and affirm the judgment of the trial
On or about December 3, 2014, Anthony A. Carpenter
burglarized his father's home. Appellant was confined in
jail from December 2, 2014 through December 11, 2014. On
March 20, 2015, Appellant was indicted for one count of
burglary, R.C. 2911.12(A)(3), a felony of the third degree.
On April 15, 2015, Appellant was arraigned on the indictment
for burglary, case number 14CR231.
The trial court held pretrials on November 9, 2015 and
November 23, 2015. Appellant failed to appear for the
November 9, 2015 pretrial. On November 23, 2015, Appellant
was scheduled for a change of plea hearing, which was to take
place on December 21, 2015.
The matter was continued several times for reasons which are
not completely clear. On March 2, 2016, Appellant again
failed to appear for a pretrial hearing and a warrant for
arrest was issued. Appellant was again confined in jail on
April 19, 2016. On April 25, 2016, Appellant was allowed a
recognizance bond with GPS.
On June 27, 2016, Appellant appeared for a settlement
conference. The State and Appellant reached an agreed
resolution in the matter. Appellant changed his plea and
sentencing was continued in order to obtain a pre-sentence
investigation report. However, instead of receiving the
sentence to which the parties had agreed, at the sentencing
hearing on August 22, 2016, Appellant was sentenced to a
maximum prison term, thirty-six months. He was also given 9
days of jail-time credit.
This timely appeal followed. Where pertinent, we set forth
additional facts below.
ASSIGNMENTS OF ERROR
"I. ANTHONY CARPENTER'S MAXIMUM PRISON SENTENCE IS
NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD.
II. THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY
CALCULATE, NOTIFY THE DEFENDANT AT THE SENTENCING HEARING,
AND INCLUDE IN ITS SENTENCING ENTRY THE NUMBER OF DAYS OF
CREDIT TO WHICH ANTHONY CARPENTER WAS ENTITLED UNDER R.C.
R.C. 2953.08(G)(2) defines appellate review of felony
sentences and provides, in relevant part, as follows:
"The court hearing an appeal under division (A), (B), or
(C) of this section shall review the record, including the
findings underlying the sentence or modification given by the
The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court
for resentencing. The appellate court's standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action
authorized by this division if it clearly and convincingly
finds either of the following: (a) That 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; (b) That the
sentence is otherwise contrary to law."
"[A]n appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and
convincing evidence that the record does not support the
trial court's findings under relevant statutes or that
the sentence is otherwise contrary to law." State v.
Bass, 4th Dist. Washington No. 16CA32, 2017-Ohio-7059,
¶ 6, quoting State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. This is a
deferential standard. Id. at ¶ 23. Furthermore,
"appellate courts may not apply the abuse-of-discretion
standard in sentencing-term challenges." Id. at
¶ 10. Additionally, although R.C. 2953.08(G) does not
mention R.C. 2929.11 or 2929.12, the Supreme Court of Ohio
has determined that the same standard of review applies to
findings made under those statutes. Id. at ¶ 23
(stating that "it is fully consistent for appellate
courts to review those sentences that are imposed solely
after consideration of the factors in R.C. 2929.11 and
2929.12 under a standard that is equally deferential to the
sentencing court, " meaning that "an appellate
court may vacate or modify any 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").
"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.' " Bass, supra, at 6,
quoting Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus;
Id. at ¶ 22.
Further, as noted by the Eighth District Court of Appeals:
"It is important to understand that the 'clear and
convincing' standard applied in R.C. 2953.08(G)(2) is not
discretionary. In fact, R.C. 2953.08(G)(2) makes it clear
that '[t]he appellate court's standard for review is
not whether the sentencing court abused its discretion.'
As a practical consideration, this means that appellate
courts are prohibited from substituting their judgment for
that of the trial judge. It is also important to understand
that the clear and convincing standard used by R.C.
2953.08(G)(2) is written in the negative. It does not say
that the trial judge must have clear and convincing evidence
to support its findings. Instead, it is the court of appeals
that must clearly and convincingly find that the record does
not support the court's findings. In other words, the
restriction is on the appellate court, not the trial judge.
This is an extremely deferential standard of review."
Bass supra, at 7, quoting State v. Venes,
8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 20-21,
992 N.E.2d 453.
Assignment of Error One-Maximum Sentence
Appellant contends his maximum sentence of 36 months as to
one count of burglary is not clearly and convincingly
supported by the record. Appellant argues, given the record
in this case, the 36-month maximum prison sentence pursuant
to R.C. 2929.11 is not guided by the overriding principles of
felony sentencing. Appellant requests this court, pursuant to
the authority of R.C. 2953.08(G)(2), to reduce his sentence
to community control. Appellant emphasizes these facts in
1) The underlying cause of Appellant's offense was his
2) The victim suffered no harm and explicitly requested
treatment and rehabilitation as the punishment;
3) The State recommended community control; and,
4) The court found Appellant amenable to community control at
the same hearing for a different offense.
Although trial courts have full discretion to impose any term
of imprisonment within the statutory range, they must
consider the sentencing purposes in R.C. 2929.11 and the
guidelines contained in R.C. 2929.12. State v.
Sawyer, 4th Dist. Meigs No. 16CA2, 2017-Ohio-1433,
¶ 16; State v.Lister, ...