State v. Perry , 2019 Ohio 3550 ( 2019 )

[Cite as State v. Perry, 2019-Ohio-3550.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-T-0010
- vs - :
DAJAUN RESHAWN PERRY, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2018 CR 00791.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, 25-year-old Dajaun Reshawn Perry, appeals from the entry on
sentence, issued by the Trumbull County Court of Common Pleas on January 29, 2019,
on the basis that his sentence is contrary to law. The judgment is affirmed.
{¶2} In September 2018, Perry was charged with one count of aggravated
burglary after entering by deception, with purpose to commit a theft offense, the residence
of an 81-year-old man, upon whom Perry inflicted bodily harm and stole $161.00.
{¶3} On November 15, 2018, pursuant to a plea agreement, Perry pled guilty to
the charge, a first-degree felony, in violation of R.C. 2911.11(A)(1) & (B).
{¶4} The trial court ordered a pre-sentence investigation.
{¶5} Perry’s sentencing hearing was held on January 17, 2019. He was
sentenced to ten years in prison.
{¶6} Perry noticed an appeal from the January 29, 2019 entry on sentence and
raises the following assignment of error for our review:
{¶7} “The trial court erred by sentencing the appellant to a term of 10 years
incarceration as the record does not support such a sentence.”
{¶8} Perry asserts that, beyond the trial court’s consideration of his prior criminal
history, the record is unclear as to why the trial court imposed a ten-year sentence, nearly
the maximum penalty available.
{¶9} We review felony sentences under the standard of review set forth in R.C.
2953.08(G), which provides, in pertinent part:
(2) 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 sentencing court.
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.
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{¶10} When a sentence does not require the findings specifically addressed in
R.C. 2953.08(G), “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.” State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, ¶23. In other words, an appellate court may vacate or modify
any sentence that is not clearly and convincingly contrary to law only if it clearly and
convincingly finds that the record does not support the sentence. Id.
{¶11} Here, the trial court was not required to make any findings under the
statutes referenced in R.C. 2953.08(G). See R.C. 2929.13(B) (fourth- and fifth-degree
felonies); R.C. 2929.13(D) (felony drug offenses); R.C. 2929.14(B)(2)(e) (repeat violent
offenders convicted of aggravated murder); R.C. 2929.14(C)(4) (consecutive sentences);
R.C. 2929.20(I) (judicial release).
{¶12} Further, Perry’s ten-year sentence is within the statutory range. See R.C.
2929.14(A)(1) (effective Oct. 31, 2018) (“For a felony of the first degree, the prison term
shall be three, four, five, six, seven, eight, nine, ten, or eleven years.”).
{¶13} Finally, the trial court considered the purposes and principles of felony
sentencing found in R.C. 2929.11 (“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”). In doing so, the trial court reviewed the sentencing factors found in R.C.
2929.12 relating to the seriousness of the conduct and the likelihood of the offender’s
recidivism. See R.C. 2929.12(A) (“a court that imposes a sentence under this chapter
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upon an offender for a felony has discretion to determine the most effective way to comply
with the purposes and principles of sentencing”).
{¶14} The trial court reflected upon Perry’s juvenile adjudications, which include
burglary, grand theft, resisting arrest, and robbery with a firearm; and Perry’s adult
convictions, which include aggravated battery with a deadly weapon, burglary,
possession of drugs, and possession of cocaine. Perry conceded to the trial court that
he has been to prison four times. The trial court further found that Perry showed no
genuine remorse for the case, that it was a violent crime, that Perry does not appear able
to be rehabilitated, and that Perry “failed a probation evaluation miserably.” These
findings, as they relate to the seriousness of Perry’s conduct and the likelihood of his
recidivism, are supported by the record.
{¶15} Accordingly, we do not clearly and convincingly find that Perry’s sentence
is contrary to law or unsupported by the record.
{¶16} Perry’s sole assignment of error is without merit.
{¶17} The judgment of the Trumbull County Court of Common Pleas is hereby
affirmed.
THOMAS R. WRIGHT, P.J.,
MATT LYNCH, J.,
concur.
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