Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas. Case
No. 2015 CR 00827.
Watkins, Trumbull County Prosecutor, and Ashleigh Musick,
Assistant Prosecutor, Administration Building, Fourth Floor,
F. Borkowski, Jr., (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, Anthony Michael Delmont, entered pleas of guilty
to one count of Attempted Burglary and one count of Burglary,
felonies of the third degree. Appellant now appeals from the
December 13, 2016 judgment of sentence entered by the
Trumbull County Court of Common Pleas. At issue is whether
the trial court erred when it imposed two 12-month concurrent
sentences. The trial court's judgment is affirmed.
On July 13, 2015, Charles Gardner and his wife were awoken
when they heard appellant, whom they did not know, kicking
and banging in an attempt to open a sliding glass door to
their home. Mr. Gardner got into a verbal altercation with
appellant and chased appellant until he ran out of sight. Mr.
Gardner then observed that his motor home, located next to
the garage, had been forced open and ransacked. The inside of
the motor home was damaged. Mr. Gardner reported thousands of
dollars in damages to his insurance company, for which he
paid a $500.00 deductible. Police were able to recover blood
samples from various items in the motor home. DNA analysis
revealed the blood was from appellant.
On November 10, 2015, appellant was indicted on four counts:
Count 1, Attempted Burglary (F3), in violation of R.C.
2923.02 and R.C. 2911.12(A)(1)&(D); Count 2, Burglary
(F3), in violation of R.C. 2911.12(A)(3)&(D); Count 3,
Breaking & Entering (F5), in violation of R.C.
2911.13(A)&(C); and Count 4, Vandalism (F4), in violation
of R.C. 2909.05(A)&(E).
In December 2015, appellant entered a residential drug
treatment facility, known as Lia House, in Cleveland. He was
given a bed at the facility and eventually transitioned into
independent sober living. Appellant worked with a counselor,
attended seven meetings per week, and participated in various
classes and programming. He also maintained employment.
On August 22, 2016, appellant pled guilty to Count 1 and
Count 2 (as stated above, but referred to as an "amended
indictment"). Appellee, the state of Ohio, dismissed
Count 3 and Count 4. The trial court ordered a presentence
investigation report ("PSI").
A sentencing hearing was held on December 12, 2016. The trial
court sentenced appellant to 12 months in prison on each
count, to be served concurrently, for a total 12-month term
of imprisonment. The court also ordered appellant to pay
restitution in the amount of $500.00.
Appellant raises one assignment of error for our review:
"The sentence imposed by the trial court is contrary to
law as a result of the court's failure to properly
consider and weight [sic] the purposes and principles of
felony sentencing (R.C. 2929.11) and the factors relating to
the seriousness of the offense and recidivism (R.C.
Felony sentences are governed primarily by R.C.
2953.08(G)(2). "[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. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶1, citing R.C. 2953.08(G)(2). A felony
sentence is not contrary to law when it is within the
statutory range and the trial court has complied with all
applicable rules and statutes, including R.C. 2929.11 and
R.C. 2929.12. State v. Tate, 11th Dist. Lake No.
2015-L-038, 2016-Ohio-8421, ¶17 (citation omitted).
State v. Withrow, 2d Dist. Clark No. 2015-CA-24,
2016-Ohio-2884, ¶21 (citation omitted).
Appellant concedes his sentence is within the applicable
statutory range. He challenges the trial court's
consideration of the statutory seriousness and recidivism
To ensure the sentence complies with the overriding
principles of felony sentencing as stated in R.C. 2929.11, a
court imposing a felony sentence is required to consider the
seriousness and recidivism factors found in R.C. 2929.12. The
trial court, however, "is not required to 'use
specific language or make specific findings on the record in
order to evince the requisite consideration of the applicable
seriousness and recidivism factors (of R.C.
2929.12.)'" State v. Webb, 11th Dist. Lake
No. 2003-L-078, 2004-Ohio-4198, ¶10, quoting State
v. Arnett,88 Ohio St.3d 208, 215 (2000); see also
State v. O'Neil, 11th Dist. Portage No. 2010-P-0041,
2011-Ohio-2202, ¶34. Further, the "trial court is
not required to give ...