COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68024 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DWAYNE ROGERS : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 8, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-308269. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: James A. Jenkins, Esq. 800 Standard Building Cleveland, OH 44113 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Dwayne Rogers, defendant-appellant, appeals from his sentence in the Cuyahoga County Court of Common Pleas for the offense of rape in violation of R.C. 2907.02. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On June 9, 1994 defendant-appellant was indicted by the Cuyahoga County Grand Jury for two counts of rape with the element of force in violation of R.C. 2907.02. The victims, two female minors, were approximately six and seven years of age respectively at the time of the incident which occurred on December 24, 1993. On June 24, 1994 defendant-appellant entered a plea of not guilty to the charges contained in the indictment. On August 22, 1994 the indictment was amended upon recommendation of the prosecuting attorney to rape without the element of force, an aggravated felony of the first degree. Defendant-appellant then retracted his former plea of not guilty and entered a plea of guilty to the amended indictment. Even though the offense constituted a non-probationable offense pursuant to R.C. 2951.02(F)(4), the trial court referred defendant-appellant to the Cuyahoga County Probation Department for a presentence -3- investigation and report in order to obtain the victim's impact in the case. On September 14, 1994 the trial court sentenced defendant- appellant to the Lorain Correctional Institution for a term of 10 to 25 years on each count. The trial court ordered that the sentence on each count be served concurrently. On September 16, 1994 defendant-appellant filed a motion to modify sentence. The trial court denied defendant-appellant's motion to modify on September 20, 1994. Defendant-appellant filed a timely notice of appeal from the judgment of the trial court on October 13, 1994. II. ASSIGNMENT OF ERROR Defendant-appellant's sole assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A MAXIMUM SENTENCE BASED ON FACTORS OUTSIDE THE CODIFIED CONSIDERATIONS AND BASED, INSTEAD, ON PERSONAL FEELINGS TOWARD THE NATURE OF THE OFFENSES. Defendant-appellant argues that the court's imposition of the maximum sentence constitutes unusual punishment under the Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution. Specifically, defendant- appellant maintains that the trial court did not fully consider the statutory criteria set forth in R.C. 2929.12 but imposed its own value judgment based upon personal feelings. Defendant- appellant bases his assertion on the following statement of the trial court at the sentencing hearing: -4- THE COURT: Even though you say you were drunk and not able to remember all the events of this night, I find that this conduct is reprehensible, and you're going to go to jail. And I suggest that you do get your act together and get yourself some help. Because, you know, I have two young girls, too, and this offends me beyond any other cases that I could possibly have, where children are involved. So, I'm going to sentence accordingly. Defendant-appellant pleaded guilty to two counts of rape in violation of R.C. 2907.02 which provides in pertinent part: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: * * * (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. * * * R.C. 2951.02(F)(4) states: (F) An offender shall not be placed on probation, and shall not otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following applies: * * * (4) The offense involved is a violation of section 2907.02 or 2907.12 of the Revised Code. The trial court, when sentencing on a felony charge, must follow the mandates and guidelines of R.C. 2929.12 which provides in part: -5- (A) In determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed, the court shall consider the risk that the offender will commit another crime and the need for protecting the public from the risk; the nature and circumstances of the offense; the victim impact statement prepared pursuant to Section 2947.051 [2947.05.1] of the Revised Code, if a victim impact statement is required by that section; and the history, character, and condition of the offender and his need for correctional or rehabilitative treatment. (B) The following do not control the court's discretion, but shall be considered in favor of imposing a longer term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: (1) The offender is a repeat or dangerous offender; (2) Regardless of whether the offender knew the age of the victim, the victim of the offense was sixty-five years of age or older, permanently and totally disabled, or less than eighteen years of age at the time of the commission of the offense; (3) The victim of the offense has suffered severe social, psychological, physical, or economic injury as a result of the offense. * * * In State v. Adams (1988), 37 Ohio St.3d 259 the Ohio Supreme Court held that a silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12. In State v. Cyrus (1992), 63 Ohio St.3d 164, 166 the Ohio Supreme Court stated: Nothing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning. The burden is on the defendant to come forward with evidence to rebut the presumption that the -6- trial court considered the sentencing criteria. Generally, an appellate court will not review the trial court's exercise of discretion in sentencing where the sentence falls within the statutory limits. State v. Burge (1992), 82 Ohio App.3d 244; Toledo v. Reasonover (1965), 5 Ohio St.2d 22. Similarly, the Ohio Supreme Court has held that, generally, if a sentence falls within the terms of a valid statute, it cannot amount to cruel and unusual punishment. State v. Gladding (1990), 66 Ohio App.3d 502; McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69. In State v. Chaffin (1972), the Ohio Supreme Court stated: *** a punishment does not violate the constitutional prohibition against cruel and unusual punishment, if it be not so greatly disproportionate to the offense as to shock the sense of justice of the community. Id. at paragraph three of the syllabus. Here, defendant-appellant claims the trial court's statement at the sentencing hearing that rape of a minor is reprehensible and offensive affirmatively demonstrates that the trial court did not consider the factors set forth in the statute. A review of the sentencing proceeding in its entirety fails to support defendant-appellant's assertion. The trial court, before sentencing defendant-appellant, considered statements from the parents of one of the victims, a lengthy statement from defendant-appellant in which he expressed remorse over the incident and made reference to family history, alcohol abuse and -7- lack of a criminal record as well as his alleged cooperation with the authorities. Additionally, the trial judge, in her remarks prior to sentencing, discussed the specific nature and circumstances of the case as well as defendant-appellant's central mitigating factor, alcohol abuse. Accordingly, this court cannot now conclude that the trial court's decision to impose concurrent 10 to 25 year sentences was so arbitrary or unreasonable as to connote an abuse of discretion. See Blakemore v. Blakemore (1983), 5 Ohio St.2d 217. This is particularly true in light of the fact that the trial court did not impose the maximum sentence allowed by law. The trial court had the option of ordering defendant-appellant's sentences to be served consecutively or she could have imposed actual time, both of which would have greatly increased the time defendant-appellant must serve. Considering the nature of the offense of raping two underage children on Christmas Eve, the trial court did not abuse its discretion nor did defendant-appellant's sentence amount to cruel and unusual punishment as prohibited by the United States and Ohio constitutions. Lastly, defendant-appellant claims that the trial court's failure to wait for the completion of the presentence investigation and report before proceeding with the sentencing hearing demonstrates the trial court's disregard for the statutory criteria. This court does not agree. Crim.R. 32.2 provides that: "*** In felony cases the court shall *** order a presentence investigation and report before granting probation." -8- If probation is not an option, the rule does not apply. In this case, defendant-appellant pleaded guilty to rape, a non- probationable offense pursuant to R.C. 2951.02(F)(4). Therefore the trial court was not required to order or wait for completion of the presentence investigation and report before proceeding with the sentencing. See State v. Cyrus (1992), 63 Ohio St.3d 164. For the foregoing reasons, this court finds defendant- appellant's first and only assignment of error is not well taken. Judgment of the trial court is affirmed. -9- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .