State v. Mofford

[Cite as State v. Mofford, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 3-22-04

        v.

ROBERT MOFFORD,                                           OPINION

        DEFENDANT-APPELLANT.




                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 21-CR-0145

                                      Judgment Affirmed

                            Date of Decision: October 11, 2022




APPEARANCES:

        Howard A. Elliott for Appellant

        Bailey Higgins for Appellee
Case No. 3-22-04


MILLER, J.

       {¶1} Defendant-appellant, Robert Mofford, appeals the January 27, 2022

judgment of sentence of the Crawford County Court of Common Pleas. For the

reasons that follow, we affirm.

                                    Background

       {¶2} On May 11, 2021, the Crawford County Grand Jury indicted Mofford

on one count of aggravated possession of drugs in violation of R.C. 2925.11(A), a

fifth-degree felony, and one count of possession of marihuana in violation of R.C.

2925.11(A), a minor misdemeanor. At arraignment on June 1, 2021, Mofford

pleaded not guilty to the counts of the indictment.

       {¶3} A change-of-plea hearing was held on December 15, 2021. At the

hearing, Mofford pleaded guilty to aggravated possession of drugs as charged in the

indictment.   The trial court accepted Mofford’s plea, found him guilty, and

continued sentencing pending preparation of a presentence investigation report. In

addition, the trial court dismissed the single count of possession of marihuana

charged in the indictment.

       {¶4} Mofford’s sentencing hearing was held on January 26, 2022. At the

hearing, the trial court sentenced Mofford to six months in prison. The trial court

filed its judgment entry of sentence on January 27, 2022.




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       {¶5} On February 25, 2022, Mofford filed a notice of appeal. He raises one

assignment of error for our review.

                                 Assignment of Error

       The imposition of a prison sentence by the trial court upon the
       defendant/appellant was clearly and convincingly contrary to law
       in that the trial court had failed at the sentencing to give due
       consideration to Ohio Revised Code § 2929.11 concerning the
       principles and purposes of sentencing and did not apply Ohio
       Revised Code § 2929.12, and the less serious factors when
       imposing a sentence.

       {¶6} In his assignment of error, Mofford argues that the trial court erred by

sentencing him to six months in prison.

                                  Standard of Review

       {¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“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, 

, 

. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 

 (1954), paragraph three of the

syllabus.




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                                 Relevant Authority

       {¶8} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 

, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 

, citing

State v. Saldana, 3d Dist. Putnam No. 12-12-09, 

. A sentence

imposed within the statutory range is generally valid so long as the trial court

considered the applicable statutory policies that apply to every felony sentencing,

including those contained in R.C. 2929.11, and the sentencing factors of 2929.12.

See State v. Watts, 3d Dist. Auglaize No. 2-20-10, 

; State

v. Maggette, 3d Dist. Seneca No. 13-16-06, 

.

       {¶9} R.C. 2929.11 provides, in pertinent part, that 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 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).     To achieve the overriding purposes of felony

sentencing, R.C. 2929.11 directs courts to “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.”

 In addition, R.C. 2929.11(B) instructs that a sentence imposed for a felony “shall


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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.”

       {¶10} “In accordance with these principles, the trial court must consider the

factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s

conduct and the likelihood of the offender’s recidivism.” Smith at ¶ 10, citing R.C.

2929.12(A). In addition, the trial court must consider “the factors set forth in [R.C.

2929.12(F)] pertaining to the offender’s service in the armed forces of the United

States.” R.C. 2929.12(A). “‘A sentencing court has broad discretion to determine

the relative weight to assign the sentencing factors in R.C. 2929.12.’” Smith at ¶

15, quoting State v. Brimacombe, 

, 

, ¶ 18 (6th

Dist.), citing State v. Arnett, 

 (2000).

                                      Analysis

       {¶11} In the instant case, Mofford was sentenced for one count of aggravated

possession of drugs in violation of R.C. 2925.11(A), a fifth-degree felony. For fifth-

degree felony aggravated possession of drugs, “the prison term shall be a definite

term of six, seven, eight, nine, ten, eleven, or twelve months.” R.C. 2929.14(A)(5).

The trial court sentenced Mofford to six months in prison, which is within the

statutory range.


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       {¶12} Furthermore, the record reflects that the trial court considered R.C.

2929.11 and 2929.12 when it sentenced Mofford. At various points during the

January 26, 2022 sentencing hearing, the trial court stated that it was “looking at”

or “going to consider” R.C. 2929.11 and 2929.12. (Jan. 26, 2022 Tr. at 10, 13). The

trial court also specifically mentioned some of the principles of felony sentencing

contained in R.C. 2929.11, and it discussed the extent to which several of the R.C.

2929.12 factors were applicable. (Jan. 26, 2022 Tr. at 11-12). Furthermore, in its

judgment entry of sentence, the trial court indicated that it had considered “the

principles and purposes of sentencing under Ohio Revised Code section 2929.11,

and … balanced the seriousness and recidivism factors under Ohio Revised Code

section[s] 2929.12 and 2929.14.” (Doc. No. 31). While the trial court did not

discuss its consideration of R.C. 2929.11 and 2929.12 in exhaustive detail or

specifically mention each of the R.C. 2929.12 factors, “[a] trial court’s statement

that it considered the required statutory factors … is sufficient to fulfill its

obligations under the sentencing statutes.” Maggette, 

,

citing State v. Abrams, 8th Dist. Cuyahoga No. 103786, 

, citing

State v. Payne, 

, 

, ¶ 18. Therefore, because

Mofford’s sentence is within the statutory range and the record supports that the

trial court fulfilled its obligation of considering R.C. 2929.11 and 2929.12,

Mofford’s sentence is valid. See Watts, 

.


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       {¶13} Nevertheless, Mofford argues that his sentence is contrary to law

because the trial court “ignor[ed] the principles and purposes of sentencing” set

forth in R.C. 2929.11 by improperly balancing the R.C. 2929.12 factors. He also

claims that the record does not support some of the trial court’s findings under R.C.

2929.12.   Mofford notes that the trial court found the R.C. 2929.12(B)-(C)

seriousness factors to be inapplicable. He claims that this finding was at least

partially erroneous as “the court ignored the factors under [R.C. 2929.12(C)] that

there really was no victim to the offense[,] … that there was [no] strong

provocation of this particular offense[,] [and that] … there was no physical harm

threatened or caused to a person or property.” He further maintains that the trial

court’s findings under R.C. 2929.12(D)-(E), relating to his likelihood of recidivism,

were “inconsistent with the rest of the record.”

       {¶14} Although “R.C. 2953.08(G)(2)(a) permits an appellate court to modify

or vacate a sentence if it clearly and convincingly finds that ‘the record does not

support the sentencing court’s findings under’ certain specified statutory

provisions[,] … R.C. 2929.11 and 2929.12 are not among the statutory provisions

listed in R.C. 2953.08(G)(2)(a).” State v. Jones, 

, 2020-Ohio-

6729, ¶ 28. Furthermore, “an appellate court’s determination that the record does

not support a sentence does not equate to a determination that the sentence is

‘otherwise contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” 

 at ¶


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32. Thus, R.C. 2953.08(G)(2) “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.” Id. at ¶ 39. “[A]n appellate court errs

if it … modifies or vacates a sentence ‘based on the lack of support in the record

for the trial court’s findings under R.C. 2929.11 and R.C. 2929.12.’” State v.

Dorsey, 2d Dist. Montgomery No. 28747, 

, quoting 

.

       {¶15} Accordingly, even if we were to agree with Mofford that his sentence

is not supported by the record under R.C. 2929.11 and 2929.12, we could not vacate

or modify his sentence on that basis. As discussed above, Mofford’s sentence is

within the statutory range and it is clear that the trial court considered R.C. 2929.11

and 2929.12. Hence, Mofford’s sentence is not clearly and convincingly contrary

to law, and it must therefore be affirmed. See State v. Slife, 3d Dist. Auglaize No.

2-20-17, 

.

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

       {¶17} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Crawford County

Court of Common Pleas.

                                                                 Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.


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