[Cite as State v. Small, 2022-Ohio-636.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-30 : v. : Trial Court Case No. 2021-CR-1 : ABBY SMALL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 4th day of March, 2022.
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
HILARY J. LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409 Attorney for Defendant-Appellant
.............
WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Abby Small, appeals from her conviction in the Clark
County Court of Common Pleas after she pled guilty to one count of failure to comply with
the order or signal of a police officer. Specifically, she challenges her 30-month prison
sentence. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On January 5, 2021, a Clark County grand jury returned an indictment
charging Small with one count of failure to comply with the order or signal of a police
officer in violation of R.C. 2921.331(B) and 2921.331(C)(5), a felony of the third degree.
The charge stemmed from Small’s fleeing the scene of a traffic stop after a trooper with
the Ohio State Highway Patrol pulled her over for speeding. As the trooper approached
Small’s vehicle, Small sped away and drove over 100 miles per hour while weaving in
and out of traffic. The trooper terminated the pursuit of Small due to safety concerns;
however, a short time later, Small crashed her vehicle into an embankment on the side
of the roadway. No other vehicles were involved in the accident, but the collision did
cause Small to sustain injuries that required her hospitalization.
{¶ 3} Small pled guilty to the indicted charge in exchange for the State
recommendation that the trial court sentence her to a term of community control
sanctions. The trial court accepted Small’s guilty plea and ordered the preparation of a
presentence investigation report for sentencing. Small’s sentencing hearing then took
place on May 6, 2021.
{¶ 4} During the sentencing hearing, the trial court expressed its concern with -3-
Small’s response to law enforcement when she was stopped. Before imposing a
sentence, the trial court noted that Small had admitted to driving 130 miles per hour during
the offense. The trial court also considered Small’s criminal history, which included two
misdemeanor offenses in 2018 for failure to comply with the order and signal of a police
officer and falsification, and two misdemeanor offenses in 2020 for resisting arrest and
child endangering. The trial court further considered the fact that Small was “essentially
on probation” at the time she committed the offense in question. Specifically, Small’s jail
term for child endangering had been suspended on the condition that she not violate any
laws for two years, and the instant offense occurred before the two-year period had
expired.
{¶ 5} After the foregoing considerations, the trial court sentenced Small to 30
months in prison and suspended Small’s driver’s license for 10 years. Small now
appeals, raising two assignments of error for review.
First and Second Assignments of Error
{¶ 6} Under her first assignment of error, Small claims that the trial court abused
its discretion by sentencing her to 30 months in prison. Under her second assignment
of error, Small claims that the 30-month prison sentence was against the manifest weight
of the evidence. Neither of Small’s arguments reflect the appropriate appellate standard
of review for felony sentences.
{¶ 7} When reviewing felony sentences, appellate courts must apply the standard
of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may increase, -4-
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
only if it clearly and convincingly finds either: (1) the record does not support the
sentencing court’s findings under certain enumerated statutes, or (2) the sentence is
otherwise contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).
{¶ 8} Here, the trial court was not required to make any findings under the relevant
statutes enumerated in R.C. 2953.08(G)(2). Therefore, Small’s sentence may be
modified or vacated on appeal only if the sentence is clearly and convincingly contrary to
law. “ ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an issue
or factor which a statute requires a court to consider.” (Citation omitted.) State v.
Lofton, 2d Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. For example, “[a]
sentence is contrary to law when it does not fall within the statutory range for the offense
or if the trial court fails to consider the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.” (Citation
omitted.) State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.).
{¶ 9} “The trial court [however] has full discretion to impose any sentence within
the authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing maximum or more than minimum sentences.” (Citation omitted.)
State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). Therefore, “when
making a felony sentencing decision, a trial court must consider the R.C. 2929.11
purposes of felony sentencing and the R.C. 2929.12 felony sentencing factors, but there
is no requirement for the trial court to make any on-the-record findings regarding R.C.
2929.11 and R.C. 2929.12.” State v. Benedict, 2d Dist. Greene No. 2020-CA-25, 2021-
Ohio-966, ¶ 8. -5-
{¶ 10} As a further matter, R.C. 2953.08(G)(2)(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.” State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. Therefore, “[w]hen reviewing felony
sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C.
2929.12, we do not analyze whether those sentences are unsupported by the record.”
State v. McDaniel, 2d Dist. Darke No. 2020-CA-3, 2021-Ohio-1519, ¶ 11, citing State v.
Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18; Jones at ¶ 26-29. Instead,
“[w]e simply must determine whether those sentences are contrary to law,” Dorsey at
¶ 18, as we are “preclude[ed from] second-guessing a sentence imposed by a trial court
based on its weighing of the considerations in R.C. 2929.11 and 2929.12.” State v.
Toles, Ohio Slip Opinion No. 2021-Ohio-3531, __ N.E.3d __, ¶ 10.
{¶ 11} In this case, the record establishes that Small’s 30-month prison sentence
is not contrary to law; the sentence is within the authorized statutory range for third degree
felonies, see R.C. 2929.14(A)(3)(b), and the record establishes that the trial court
considered the factors under R.C. 2929.11 and R.C. 2929.12 before imposing its
sentence. See Judgment Entry of Conviction (May 6, 2021), p.1.
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[Cite as State v. Small, 2022-Ohio-636.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-30 : v. : Trial Court Case No. 2021-CR-1 : ABBY SMALL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 4th day of March, 2022.
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
HILARY J. LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409 Attorney for Defendant-Appellant
.............
WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Abby Small, appeals from her conviction in the Clark
County Court of Common Pleas after she pled guilty to one count of failure to comply with
the order or signal of a police officer. Specifically, she challenges her 30-month prison
sentence. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On January 5, 2021, a Clark County grand jury returned an indictment
charging Small with one count of failure to comply with the order or signal of a police
officer in violation of R.C. 2921.331(B) and 2921.331(C)(5), a felony of the third degree.
The charge stemmed from Small’s fleeing the scene of a traffic stop after a trooper with
the Ohio State Highway Patrol pulled her over for speeding. As the trooper approached
Small’s vehicle, Small sped away and drove over 100 miles per hour while weaving in
and out of traffic. The trooper terminated the pursuit of Small due to safety concerns;
however, a short time later, Small crashed her vehicle into an embankment on the side
of the roadway. No other vehicles were involved in the accident, but the collision did
cause Small to sustain injuries that required her hospitalization.
{¶ 3} Small pled guilty to the indicted charge in exchange for the State
recommendation that the trial court sentence her to a term of community control
sanctions. The trial court accepted Small’s guilty plea and ordered the preparation of a
presentence investigation report for sentencing. Small’s sentencing hearing then took
place on May 6, 2021.
{¶ 4} During the sentencing hearing, the trial court expressed its concern with -3-
Small’s response to law enforcement when she was stopped. Before imposing a
sentence, the trial court noted that Small had admitted to driving 130 miles per hour during
the offense. The trial court also considered Small’s criminal history, which included two
misdemeanor offenses in 2018 for failure to comply with the order and signal of a police
officer and falsification, and two misdemeanor offenses in 2020 for resisting arrest and
child endangering. The trial court further considered the fact that Small was “essentially
on probation” at the time she committed the offense in question. Specifically, Small’s jail
term for child endangering had been suspended on the condition that she not violate any
laws for two years, and the instant offense occurred before the two-year period had
expired.
{¶ 5} After the foregoing considerations, the trial court sentenced Small to 30
months in prison and suspended Small’s driver’s license for 10 years. Small now
appeals, raising two assignments of error for review.
First and Second Assignments of Error
{¶ 6} Under her first assignment of error, Small claims that the trial court abused
its discretion by sentencing her to 30 months in prison. Under her second assignment
of error, Small claims that the 30-month prison sentence was against the manifest weight
of the evidence. Neither of Small’s arguments reflect the appropriate appellate standard
of review for felony sentences.
{¶ 7} When reviewing felony sentences, appellate courts must apply the standard
of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may increase, -4-
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
only if it clearly and convincingly finds either: (1) the record does not support the
sentencing court’s findings under certain enumerated statutes, or (2) the sentence is
otherwise contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).
{¶ 8} Here, the trial court was not required to make any findings under the relevant
statutes enumerated in R.C. 2953.08(G)(2). Therefore, Small’s sentence may be
modified or vacated on appeal only if the sentence is clearly and convincingly contrary to
law. “ ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an issue
or factor which a statute requires a court to consider.” (Citation omitted.) State v.
Lofton, 2d Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. For example, “[a]
sentence is contrary to law when it does not fall within the statutory range for the offense
or if the trial court fails to consider the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.” (Citation
omitted.) State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.).
{¶ 9} “The trial court [however] has full discretion to impose any sentence within
the authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing maximum or more than minimum sentences.” (Citation omitted.)
State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). Therefore, “when
making a felony sentencing decision, a trial court must consider the R.C. 2929.11
purposes of felony sentencing and the R.C. 2929.12 felony sentencing factors, but there
is no requirement for the trial court to make any on-the-record findings regarding R.C.
2929.11 and R.C. 2929.12.” State v. Benedict, 2d Dist. Greene No. 2020-CA-25, 2021-
Ohio-966, ¶ 8. -5-
{¶ 10} As a further matter, R.C. 2953.08(G)(2)(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.” State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. Therefore, “[w]hen reviewing felony
sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C.
2929.12, we do not analyze whether those sentences are unsupported by the record.”
State v. McDaniel, 2d Dist. Darke No. 2020-CA-3, 2021-Ohio-1519, ¶ 11, citing State v.
Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18; Jones at ¶ 26-29. Instead,
“[w]e simply must determine whether those sentences are contrary to law,” Dorsey at
¶ 18, as we are “preclude[ed from] second-guessing a sentence imposed by a trial court
based on its weighing of the considerations in R.C. 2929.11 and 2929.12.” State v.
Toles, Ohio Slip Opinion No. 2021-Ohio-3531, __ N.E.3d __, ¶ 10.
{¶ 11} In this case, the record establishes that Small’s 30-month prison sentence
is not contrary to law; the sentence is within the authorized statutory range for third degree
felonies, see R.C. 2929.14(A)(3)(b), and the record establishes that the trial court
considered the factors under R.C. 2929.11 and R.C. 2929.12 before imposing its
sentence. See Judgment Entry of Conviction (May 6, 2021), p.1. There is simply
nothing in the record indicating that the trial court manifestly ignored an issue or factor
that it was statutorily required to consider before sentencing Small.
{¶ 12} This holds true even though the trial court did not mention its considerations
under R.C. 2929.11 and R.C. 2929.12 at the sentencing hearing. It is well established
that “[a] defendant’s sentence is not contrary to law when the trial court expressly states
in its sentencing entry that it has considered the principles and purposes of sentencing in -6-
R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12, but neglects to
mention those statutes at the sentencing hearing.” State v. Anderson, 2d Dist. Clark No.
2019-CA-80, 2020-Ohio-4083, ¶ 21, citing State v. Battle, 2d Dist. Clark No. 2014-CA-5,
2014-Ohio-4502, ¶ 15, citing State v. Miller, 2d Dist. Clark No. 09-CA-28, 2010-Ohio-
2138, ¶ 43. “It is enough that the record demonstrates that the trial court considered
R.C. 2929.11 and R.C. 2929.12 prior to imposing its sentence.” State v. Trent, 2d Dist.
Clark No. 2020-CA-61, 2021-Ohio-3698, ¶ 15. As previously discussed, the record of
the sentencing entry establishes that the trial court made all the required considerations.
{¶ 13} Because the trial court did not manifestly ignore an issue or factor that it
was statutorily required to consider at sentencing, the 30 month-prison sentence imposed
by the trial court is not clearly and convincingly contrary to law. Therefore, for the
reasons outlined above, Small’s 30-month prison sentence may not be disturbed by this
court on appeal. Accordingly, Small’s first and second assignments of error lack merit
and are overruled.
Conclusion
{¶ 14} Having overruled all of Small’s assignments of error, the judgment of the
trial court is affirmed.
TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Ian A. Richardson Hilary J. Lerman -7-
Hon. Douglas M. Rastatter