[Cite as State v. Davis,
2025-Ohio-421.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-24-13
PLAINTIFF-APPELLEE,
v.
BRANDY N. DAVIS, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
General Division
Trial Court No. 22-CR-386
Judgment Affirmed
Date of Decision: February 10, 2025
APPEARANCES:
W. Joseph Edwards for Appellant
Allison M. Kesler for Appellee
Case No. 9-24-13
MILLER, J.
{¶1} Defendant-Appellant, Brandy N. Davis (“Davis”), appeals from the
March 25, 2024 judgment issued by the Marion County Court of Common Pleas.
In the judgment, the trial court resentenced Davis following a remand from this
court. Davis argues the trial court erred in imposing the “maximum” prison
sentence instead of a lesser sentence upon resentencing her. For the reasons that
follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On July 6, 2022, Davis was indicted on two counts. The first was
Trafficking in a Fentanyl-Related Compound, in violation of R.C. 2925.03(A)(2),
(C)(9)(g), a first-degree felony. The second was Possession of a Fentanyl-Related
Compound, in violation of R.C. 2925.11(A), (C)(11)(f), also a first-degree felony.
A jury found Davis guilty of both offenses and that the amount of the drug involved
was greater than or equal to 20 grams but less than 50 grams. The trial court
subsequently merged the two offenses at sentencing, the State elected to proceed on
the trafficking charge, and the court sentenced Davis to a prison term of 10 to 15
years.
{¶3} Davis appealed. We issued a decision finding there was insufficient
evidence to support the trafficking conviction, but sufficient evidence to convict her
for the possession count that had been merged at sentencing. State v. Davis, 2024-
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Ohio-132 (3d Dist.). We therefore remanded the matter for the purpose of
sentencing Davis on the possession charge. Id. at ¶ 11.
{¶4} On March 22, 2024, the trial court held a resentencing hearing. Davis
made a brief statement, which included an apology directed specifically to the judge
himself and a list of items she had done or was doing in prison to improve herself
(e.g., attending Bible studies and relapse prevention). When asked by the trial court
whether there was anything she wanted to say about the crime the jury had found
her guilty of committing, Davis simply said she had lied to law enforcement about
her involvement and she “got punished, but [she] didn’t do it.” (Mar. 22, 2024 Tr.
at 6).
{¶5} The trial court stated that it had considered the purposes and principles
of sentencing under R.C. 2929.11 and the seriousness and recidivism factors under
R.C. 2929.12(B) through (E). It highlighted a few considerations, including Davis’
criminal record and a lack of genuine remorse for the offense. After noting the
sentencing range and various other aspects of sentencing, it sentenced Davis to an
indefinite prison term of 10 to 15 years and imposed a mandatory drug fine of
$10,000. This appeal followed.
II. ASSIGNMENT OF ERROR
Davis raises a single assignment of error for our review:
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Assignment of Error
The trial court erred when it sentenced Appellant to the maximum
prison sentence instead of a lesser sentence based on the circumstances
surrounding the offense.
III. DISCUSSION
{¶6} In the assignment of error, Davis argues the trial court erred in
sentencing her to the indefinite prison term of 10 to 15 years upon resentencing,
instead of a lesser sentence.1 According to Davis, the trial court imposed its
sentence because of the amount of drugs found, her alleged failure to show remorse,
and her past record. She asserts that she was “working on herself to be a better
person,” “apologized to the Court for her actions,” and “did not have any tickets or
infractions” during her time in prison. (Appellant’s Brief at 2). She claims that,
“due to the life changes [she] has made, she should receive a lesser sentence” and
asks that we remand this matter for another resentencing. (Id. at 3).
A. Standard of Review and Applicable Law
{¶7} The statute governing appeals based on felony sentencing guidelines,
R.C. 2953.08, “defines the parameters and standards—including the standard of
1
Although Davis’ assignment of error asserts the trial court sentenced her “to the maximum prison sentence,”
it appears the sentence imposed actually was not the “maximum” possible sentence. See R.C.
2925.11(C)(11)(e) (if amount of the fentanyl-related compound involved equals or exceeds 20 grams but is
less than 50 grams, then possession is a first-degree felony and “the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the first degree”); R.C. 2929.14(A)(1)(a) (generally,
the prison term for a first-degree felony “shall be an indefinite prison term with a stated minimum term
selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that
is determined pursuant to” R.C. 2929.144 [emphasis added]).
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review—for felony-sentencing appeals.” State v. Marcum, 2016-Ohio-1002, ¶ 21.
“[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 statues [identified in R.C. 2953.08(G)(2)(A)] or
that the sentence is otherwise contrary to law” pursuant to R.C. 2953.08(G)(2)(B).
Id. at ¶ 1; see also R.C. 2953.08(G). “‘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.’”
Marcum at ¶ 22,
quoting Cross v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶8} R.C. 2929.11 sets forth the overriding purposes of felony sentencing
that the sentencing court must be guided by when sentencing an offender. R.C.
2929.12(B) through (F) list factors the sentencing court must consider, which
include factors relating to the seriousness of the conduct, the likelihood of the
offender’s recidivism, and the offender’s services in the armed forces. E.g., R.C.
2929.12(D)(2) (“the offender has a history of criminal convictions”); R.C.
2929.12(D)(5) (“[t]he offender shows no genuine remorse for the offense”). The
sentencing court also “may consider any other factors that are relevant to achieving
those purposes and principles of sentencing.” R.C. 2929.12(A). Neither statute
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“requires a trial court to make any specific factual findings on the record.” State v.
Jones, 2020-Ohio-6729, ¶ 20; see also R.C. 2929.11 and 2929.12.
{¶9} In considering R.C. 2929.11 and 2929.12 as they relate to felony-
sentencing appeals, the Supreme Court of Ohio has further limited appellate review
by holding that “R.C. 2953.08(G)(2)(a) clearly does not provide a basis for an
appellate court to modify or vacate a sentence if it concludes that the record does
not support the sentence under R.C. 2929.11 and 2929.12,” and subdivision (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.” Jones at ¶ 31, 34, 39 (“an appellate court’s conclusion that the record
does not support a sentence under R.C. 2929.11 or 2929.12 is not the equivalent of
a conclusion that the sentence is ‘otherwise contrary to law’ as that term is used in
R.C. 2953.08(G)(2)(b)”). Thus, R.C. 2953.08(G)(2) does not allow “an appellate
court to independently weigh the evidence in the record and substitute its judgment
for that of the trial court concerning the sentence that best reflects compliance with
R.C. 2929.11 and 2929.12.” Id. at ¶ 42; see also State v. Bryant,
2022-Ohio-1878,
¶ 22. However, “when a trial court imposes a sentence based on factors or
considerations that are extraneous to those that are permitted by R.C. 2929.11 and
2929.12, that sentence is contrary to law,” and claims that raise those “types of
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issues are therefore reviewable.” Bryant at ¶ 22 (finding the trial court increased
the sentence based on an impermissible consideration).
B. Analysis
{¶10} Davis does not attack any of the procedural aspects in the trial court’s
resentencing and cites no authority apart from a general citation to R.C. 2953.08 as
providing her with the right to appeal. She has not argued that the case involves any
findings under the statutes identified in R.C. 2953.08(G)(2)(A), and she has not
argued that the sentence is outside the statutory range. She also has not specifically
argued that the sentence was based on factors or considerations extraneous to those
permitted by R.C. 2929.11 or 2929.12.
{¶11} Instead, Davis essentially contends the trial court improperly
considered and applied the sentencing factors after she provided what she believed
to be mitigating circumstances that should have resulted in a lesser sentence. E.g.,
State v. Lambert, 2024-Ohio-2308, ¶ 5, 14 (3d Dist.). However, the record indicates
the trial court considered the overriding purposes of felony sentencing set forth in
R.C. 2929.11 and the statutory factors set forth in R.C. 2929.12. Both at the
resentencing hearing and in its judgment entry of sentencing, the trial court stated it
had considered the purposes and principles of sentencing under R.C. 2929.11 and
the seriousness and recidivism factors under R.C. 2929.12. As explained above, we
are not allowed to independently review the record to determine whether the trial
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court chose an appropriate sentence based on R.C. 2929.11 and the R.C. 2929.12
factors.
{¶12} Even assuming Davis is arguing that the trial court imposed the
sentence based on impermissible considerations, she has not shown it did so. See
State v. Sanon, 2023-Ohio-2742, ¶ 72-76 (1st Dist.). Additionally, the sentence
imposed was within the statutory range, and Davis does not argue otherwise. See
R.C. 2925.11(C)(11)(e); R.C. 2929.14(A)(1)(a); Bryant,
2022-Ohio-1878, at ¶ 22
(explaining that “otherwise contrary to law” under R.C. 2953.08(G)(2)(b) means “in
violation of statute or legal regulations at a given time”). Although Davis may
disagree with the weight given to the sentencing factors by the trial judge, there is
no basis to vacate or modify the sentence. State v. Webb,
2024-Ohio-4711, ¶ 27 (2d
Dist.); State v. Williams,
2024-Ohio-2078, ¶ 21-22 (5th Dist.) (where the trial court
considered R.C. 2929.11 and the R.C. 2929.12 factors, appellant did not show
consideration of any “extraneous” factors or considerations, and the sentence was
within the applicable statutory range, affirming sentence for possession of fentanyl-
related compound despite appellant’s argument “the trial court failed to recognize
he had ‘turned a corner’ in his life and was living lawfully and productively’”).
IV. CONCLUSION
{¶13} For the foregoing reasons, Appellant’s assignment of error is
overruled. Having found no error prejudicial to the appellant in the particulars
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assigned and argued, we affirm the judgment of the Marion County Court of
Common Pleas.
Judgment Affirmed
WALDICK, P.J. and ZIMMERMAN, J., concur.
/jlm
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