Court of Appeals of Ohio, Twelfth District, Butler
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case Nos.
CR2014-06-0953 and CR2014-11-1718
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina
N. Alkamhawi, Government Services Center, for
Charles M. Conliff, P.O., for defendant-appellant
1} Defendant-appellant, Richard Harris, appeals the
sentence imposed by the Butler County Court of Common Pleas
after he was convicted of multiple felonies.
2} Harris was charged with crimes in two separate
indictments. In the first indictment, Harris was charged with
having weapons under disability, carrying concealed weapons,
obstructing official business, and receiving stolen property.
In the second indictment, Harris was charged with seven
counts of trafficking in heroin and seven counts of
possessing heroin. Harris pled guilty to having weapons under
disability and four counts related to the possession and
trafficking of heroin, and the remaining counts were
3} The trial court accepted Harris' pleas, and
sentenced him to community control. As a term of community
control, the trial court ordered Harris to complete the
Substance Abuse Mental Illness program (SAMI). The court also
expressed that if Harris violated the terms of his community
control sanctions, the sentence imposed for having weapons
under disability would be 36 months, as well as an aggregate
sentence of 18 months on the heroin-related convictions. The
18-month sentence was ordered consecutive to the 36-month
sentence for having weapons under disability.
4} After completing approximately two years of
community control successfully, Harris violated the terms of
his community control by being terminated from SAMI and being
charged with a new felony drug-related offense. Harris
admitted his violations during a hearing on revocation of
community control. The trial court then ordered Harris to
serve the sentence as previously announced, for an aggregate
sentence of 54 months in prison. Harris now appeals his
sentence, raising the following assignment of error.
5} THE TRIAL COURT ERRED TO THE APPELLANT'S
PREJUDICE BY IMPOSING A PRISON SENTENCE.
6} Harris argues in his assignment of error that the
trial court erred in sentencing him to prison.
7} We review the imposed sentence under the standard
of review set forth in R.C. 2953.08(G)(2), which governs all
felony sentences. State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, ¶ 1; State v. Crawford,
12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶
6. Pursuant to that statute, an appellate court does not
review the sentencing court's decision for an abuse of
discretion. Marcum at ¶ 10. Rather, R.C.
2953.08(G)(2) compels an appellate court to modify or vacate
a sentence only if the appellate court finds 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."
Id. at ¶ 1.
8} A sentence is not clearly and convincingly
contrary to law where the trial court "considers the
principles and purposes of R.C. 2929.11, as well as the
factors listed in R.C. 2929.12, properly imposes postrelease
control, and sentences the defendant within the permissible
statutory range." State v. Ahlers, 12th Dist.
Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. Thus,
this court may "increase, reduce, or otherwise modify a
sentence only when it clearly and convincingly finds that the
sentence is (1) contrary to law or (2) unsupported by the
record." State v. Brandenburg, 146 Ohio St.3d
221, 2016-Ohio-2970, ¶ 1.
9} After reviewing the record, we first find that
the trial court's sentence was not contrary to law.
Harris was convicted of having weapons under disability, a
felony of the third degree, and possession of heroin, a
fourth-degree felony. According to R.C. 2929.14(A)(3)(b),
"for a felony of the third degree * * * the prison term
shall be nine, twelve, eighteen, twenty-four, thirty, or
thirty-six months." "For a felony of the fourth
degree, the prison term shall be six, seven, eight, nine,
ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,
seventeen, or eighteen months." R.C. 2929.14(A)(4). As
such, the trial court sentenced Harris within the statutory
range for his convictions where the court imposed a 36-month
sentence for the third-degree felony and an 18-month sentence
for the fourth-degree felony.
10} The trial court also considered the statutory
factors before sentencing Harris. The trial court
specifically stated during the sentencing hearing, "the
Court's had an opportunity to consider this matter in
conjunction with the purposes and the princip[les] [of]
sentencing set forth in Ohio Revised Code Section 2929.11 and
to consider the seriousness and recidivism factors set forth
in Ohio Revised Code Section 2929.12." The trial court
further noted its consideration of the ...