COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72648/72649 STATE OF OHIO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ABDUL ASSAD : and : MOHAMAD ABDELHADY : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 11, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-345,700 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor RONNI DUCOFF, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendants-appellees: JOHN J. RICOTTA JOHN A. GHAZOUL Attorneys at Law 425 Lakeside Avenue, 1st Floor Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- Appellant, the State of Ohio, asks this court to vacate the community control sanctions imposed on appellees and to determine that a period of incarceration be imposed on them. Because we cannot clearly and convincingly find either that the trial court did not follow the procedures set forth in R.C. 2929.13(D) or that those procedures were followed, but that there was an insufficient basis for overriding the presumption in favor of a prison term in sentencing the appellees, we affirm the sentences below. R.C. 2953.08(G)(1)(c). THE BROKEN WINDOW On November 19, 1996, one member of a group of teenagers picked up a brick and threw it through the window of a USA Gastown service station on Scranton Avenue in Cleveland. As the children scattered and ran, defendant-appellee Abdul Assad, age 22, defendant-appellee Mohamad Abdelhady, age 24, and Abdelhady's brother, a juvenile, ran out of the station and began chasing the boys. Although, as it turns out, they did not catch the child who actually threw the brick, they did find two members of the group, David Diaz, aged 12, and Justino Agosto, Jr., aged 12, hiding under some porches in the neighborhood nearby. The appellees and Abdelhady's juvenile brother dragged Diaz and Agostino out from under the porches and forced them back to the gas station. Appellant claims that, along the way, Diaz and Agostino were pummeled by the men. The boys, meanwhile, protested their innocence. Appellant claims that the children were placed in -3- the back office at the gas station and beaten again. The boys were allegedly threatened with a box cutter and were told that they would be drowned in Lake Erie. They were forced to empty out their pockets, and their belongings were thrown on the floor. The complaint for robbery alleged that Agosto's property consisted of a lighter, Chapstick, and two cassette tapes. R. at 1. No specific belongings of Diaz are mentioned in the record. Meanwhile, the boy who admittedly had broken the window notified the mother of one of the two boys as to what was occur- ring. The mother went to USA Gastown but initially was told that her son was not there. Consequently, the mother went to a pay phone nearby and called 9-1-1 to summon assistance. After the police and EMS arrived, both boys were taken to the hospital. They were treated and released with what appellees characterize as minor scrapes and abrasions. Appellees' Brief at 1. As no record was developed at trial, we have only the parties' briefs and unsworn statements made at the sentencing hearings upon which to rely for the factual background of this case. INDICTMENT AND SENTENCING Defendants-appellees Abdul Assad and Mohamad Abdelhady were arrested and charged in an eight-count indictment on December 10, 1996. Both were charged with two counts of Robbery (R.C. 2911.02), two counts of Felonious Assault (R.C. 2903.11), two counts of Kidnapping (R.C. 2905.01), and two counts of Child Endangerment (R.C. 2919.22). -4- On April 21, 1997, following plea negotiations, the felonious assault charges were dismissed, as was the robbery charge involving Diaz. The kidnapping counts were amended to Abduction (R.C. 2905.02[A]). Appellees pleaded guilty to one count of robbery, a second degree felony, two counts of abduction, a third degree felony, and two counts of endangering children, a third degree felony. Sentencing hearings for both appellees were held on May 12, 1997. At appellee Assad's sentencing, the trial court acknowledged that [c]learly the parties overreacted and were totally out of control. Assad R. at 6. However, the court went on to state that the degree of culpability is somewhat questionable in this case. Id.at 6-7. The court noted that the appellee had minimal contact with the criminal justice system. Although physical harm was done to the boys, the court found that the appellee was amenable to a community controlled sanction. Id. at 7. In the sentencing of appellee Abdelhady, the judge specifi- cally stated that he had occasion to thoroughly review the pre- sentence investigation report submitted on behalf of the defen- dant. Abdelhady R. at 12. The court noted that the appellee had minimal contact with the criminal justice system and found that he did not cause physical damage to a person. Id. In imposing sentence on both appellees, the court stated that it was applying the sentencing criteria as set forth in R.C. 2929. Assad R. at 6; Abdelhady R. at 12. The court sentenced both appellees to five years on the robbery count, a second degree -5- felony, three years on each of the two counts of abduction, a third degree felony, and another three years on the two counts of endangering children, a third degree felony; all sentences to be served concurrently. Assad R. at 7; Abdelhady R. at 12-13. The imposition of these sentences was suspended, and each appellee was given two years probation, plus two hundred hours of community service. In addition, the appellees were ordered to pay restitu- tion, if sought, and to seek anger-management counseling. Assad R. at 7-8; Abdelhady R. at 13. The prosecution filed a timely appeal to this court. ASSIGNMENT OF ERROR Appellant's sole assignment of error is that: THE COURT FAILED TO PROPERLY ELUCIDATE THE NECESSARY FINDING OF LAW REQUIRED PURSUANT TO R.C. S2929.13(D) IN ORDER TO REBUT THE PRE- SUMPTION IN FAVOR OF A PRISON TERM FOR A SECOND DEGREE FELONY. Appellant argues that the trial court erred in failing to elucidate reasons that would rebut the presumption in favor of incarcerationand that the issuance of community control sanctions demeaned the seriousness of the crimes. App. Brief at 5. Appellant appears before this court under authority of R.C. 2953.08(B)(1), which permits an appeal as of right to a prosecuting attorney on the grounds that a defendant's sentence did not include a prison term despite a provision favoring a prison term for the offense for which it was imposed, as set forth in section -6- 2929.13 ***. R.C. 2953.08(B)(1). For a second-degree felony con- viction for robbery, the revised code states that it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under section 2929.11. R.C. 2929.13(D). This court, in hearing an appeal under R.C. 2953.08(B)(1), has discretionary power to modify or vacate the lower court's sentence. The revised code states that a court hearing such an appeal *** 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 trial court for resentencing if the court clearly and convincingly finds any of the following: (a) That the record does not support the sentence; * * * (c) That the sentence did not include a prison term, that the offense for which it was imposed is a felony of the first or second degree *** for which a presump- tion in favor of a prison term is speci- fied as being applicable, and either that the procedures set forth in division (D) of section 2929.13 of the Revised Code that set forth the only circumstances in which the presumption may be overridden and a sanction other than a prison term may be imposed *** were not followed or that those procedures were followed but there is an insufficient basis for over- riding the presumption and imposing a sanction other than a prison term for the offense; (d) That the sentence is otherwise con- trary to law. R.C. 2953.08(G)(1). (Emphasis added). -7- Appellant's assignment of error suggests that appellant seeks to have this court vacate the sentence below under R.C. 2953.08(G)(1)(c). The statute clearly indicates that the decision as to whether to modify or vacate a trial court's sentence is discretionary with the court of appeals. It states that a court of appeals may modify the sentence, or may vacate the sentence, if it clearly and convincingly finds any of the circumstances set forth in R.C. 2953.08(G)(1)(a)-(d). As the statute does not direct that an appellate court shall modify or vacate a sentence, the court of appeals retains the discretion to affirm the lower court's sentence, even if it finds the specified circumstances to exist. The First District Court of Appeals recently stated that an appellate court no longer review[s] sentencing under an abuse-of- discretion standard. State v. Sheppard (Nov. 7, 1997), Hamilton App. No. 961083, 1997 Ohio App. LEXIS 4876, at *2. However, with all due deference, that interpretation overstates the reach of the statute. In Sheppard, the court modified the appellant's sentence for arson, reducing it from the maximum of five years to a sentence of one year. Id. at *6. The court found, clearly and convinc- ingly, that the trial court's finding of likely recidivism was not supported by the record. Id. at *4. The Sheppard court therefore properly applied R.C. 2953.08(G)(1) to modify an appealed sentence. However, R.C. 2953.08(G) only provides authority for a court of appeals to modify or vacate the felony sentence of a lower court. The statute states that an appellate court may increase, -8- reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter ***. R.C. 2953.08(G)(1). The statute, as it is written, does not pro- vide a general appellate standard of review governing review of sentencing. The statute does not compel an appellate court to modify or vacate the felony sentence of the court below nor does it specify what criteria the court should use in declining to modify or vacate a trial court's sentence. By requiring a clear and convincing standard for modifying or vacating a lower court's felony sentencing determination, the legislature changed the standard of review for those appeals from the deferential abuse-of-discretion standard that courts of appeals had previously applied. This standard continues to implicitly buttress the general presumption of the regularity of the proceed- ings below. We find the statute's requirement of a clear and convincing finding of error below to be consonant with the presumption of regularity which adheres to all judicial proceed- ings. Coleman v. McGittrick (1965), 2 Ohio St.2d 177, 180, cert. denied, 382 U.S. 834. The Ohio Revised Code at Chapter 2929 outlines the range of penalties that a trial court may assess against a convicted defendant, as well as guidelines for choosing the penalty to be imposed. R.C. 2929. The code provides that for a felony of the second degree, such as robbery in the case sub judice, it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under section 2929.11. -9- R.C. 2929.13(D). Similar provisions for certain third-degree felonies are outlined in R.C. 2929.13(E). The revised code states in R.C. 2929.11 that the overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. R.C. 2929.11(A). To achieve those purposes, a sentencing court is directed to consider the need for incapacitating the offender, deterring the offender and others from future crime, [and] rehabilitating the offender ***. Id. Notwithstanding the presumption in favor of a prison term established in R.C. 2929.13(D), a court may impose a community control sanction instead of a prison term if the court makes two findings: (1) A community control sanction *** would adequately punish the offender and protect the public from future crime, because the applica- ble factors under section 2929.12 *** indicat- ing a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism. (2) A community control sanction *** would not demean the seriousness of the offense, because one or more factors under section 2929.12 *** that indicate that the offender's conduct was less serious than conduct normally constitut- ing the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender's conduct was more serious than conduct normally constituting the offense. R.C. 2929.13(D)(1)-(2). Although the trial court did not specifi- cally set forth its findings, it did make reference to the recidivism factor as to appellee Abdelhady in stating that he had minimal conduct [sic contact?] with the criminal justice system -10- and that it is not likely to occur. Abdelhady R. at 12. As to the seriousness of the offenses, the court mentioned in sentencing appellee Assad that, while the appellees clearly overreacted, the degree of culpability is somewhat questionable in this case. Assad R. at 6-7. Appellant would have us find error because the court failed to elucidate reasons to rebut the presumption in favor of incarcer- ation for both defendants. App. Brief at 5. Appellant argues that the two findings required pursuant to R.C. 2929.13(D) were not made and that, therefore, the trial court erred as a matter of law. Id. Appellant appears to argue that the findings were not made because specific findings as to each factor were not apparent in the record. A trial court has broad discretion in sentencing a defendant. State v. Yontz (1986), 33 Ohio App.3d 342 (syllabus); State v. Scovil(Apr. 23, 1998), Cuyahoga App. No. 72897, unreported, at 8. Generally, there is no abuse of discretion in sentencing when the sentence is authorized by statute. State v. Cassidy (1984), 21 Ohio App.3d 100, 102. As outlined earlier, a sentence of community control sanctions is permissible for the offenses in this case, in certain circumstances, under R.C. 2929.13(D). Appellant argues, however, that because the court failed to elucidate reasons to rebut the presumption in favor of incarceration, the two findings required pursuant to R.C. 2929.13(D) were not made. As stated earlier, a trial court does have broad discretion in sentencing a defendant, and traditionally, a reviewing court would -11- not interfere with the sentence unless the trial court abused its discretion. Yontz, supra, at 342. Under R.C. 2953.08, as we have discussed, a trial court's felony sentencing determination continues to receive a certain amount of deference. An appellate court may only modify or vacate a lower court's felony sentence if it clearly and convincingly finds the sentence to be unsupported in the record, contrary to the guidelines in R.C. 2929.13, or otherwise contrary to law. R.C. 2953.08(G)(1). However, in exercising its felony sentencing discretion, a trial court is required to consider the seriousness and recidivism factors set forth in R.C. 2929.12. Yontz, supra, at 342. This court has held in State v. Turner, (1987), 37 Ohio App.3d 38, at 40, that [w]hile a court's sentencing discretion is broad, the record must indicate that the court considered the statutory [sentencing] criteria. In Turner, we found that requirement satisfied where the record revealed that the trial court had reviewed a pre-sentence report before imposing sentence. Id. In sentencing appellee Abdelhady, the trial judge specifically stated that he thoroughly review[ed] the pre-sentence investigation re- port submitted on behalf of the defendant. Abdelhady R. at 12. Under Turner, then, the trial court's sentencing of appellee Abdelhady would satisfy R.C. 2929.12. Id. at 40. However, after this court decided Turner, the Supreme Court of Ohio stated that a silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12. State v. Adams (1988), 37 Ohio St.3d 295, 297. See, also, State v. -12- Brown (1995), 108 Ohio App.3d 489, 499. The court has since pointed out that [n]othing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning in sentencing. State v. Cyrus (1992), 63 Ohio St.3d 164, 166. The court in Cyrus held that a trial court is not required to make a statement that it has considered the sentencing factors contained in R.C. 2929.12. Id. See, also, Brown, supra, at 499; State v. Banks (Nov. 20, 1997), Cuyahoga App. No. 72121, unreported, at 8 (statute merely requires court to consider R.C. 2929.12, not to make specific findings). The burden is on the challenger to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria. Cyrus, supra at 166. If it can be demon- strated that the court did not consider the statutory sentencing criteria, a reversal would be required. State v. Bivens (1988), 49 Ohio App.3d 75, 77. R.C. 2953.08(G) is in accord with the decisions in Cyrus and Bivens. In order for this court to modify or vacate the lower court's sentence under R.C. 2953.08(G)(1)(c), we must clearly and convincingly find either that the court did not follow the procedures set forth in 2929.13(D) or that those procedures were followed but that there was an insufficient basis for overriding the presumption in favor of a prison term. R.C. 2953.08(G)(1)(c). Appellant here has not demonstrated that the court did not consider the statutory sentencing criteria. On the contrary, the record reflects that in imposing sentence on both appellees, the -13- court specifically stated that it was applying the sentencing criteria as set forth in R.C. 2929. Assad R. at 6 ( As we apply the criteria for sentencing set forth in those statutes ***. ); Abdelhady R. at 12 ( Therefore, in compliance with the criteria for sentencing as set forth in those statutes, I'm sentencing you ***. ). Therefore, we cannot clearly and convincingly find that the court did not follow the procedures set forth in R.C. 2929.13(D). Nor can we clearly and convincingly find that there was an insufficient basis for overriding the presumption in favor of a prison term in sentencing the appellees to community control sanctions. We do not have the appellees' pre-sentencing reports before us. We do not have the photographs referred to in appel- lant's brief, App. Brief at 2, or other evidence which the trial court had before it, of the gravity of the injuries to Diaz and Agosto. We cannot, therefore, clearly and convincingly determine whether the trial court's assessment of the seriousness and recidivism factors under R.C. 2929.12, as required by 2929.13(D), is in error. We do, however, have the trial court's assessment that in the circumstances of this case, the appellees were amenable to community controlled sanctions, as permitted by law. Assad R. at 7; Abdelhady R. at 13. Appellees were also ordered to pay resti- tution, if sought, and to seek anger-management counseling. In the absence of demonstrated errors, we defer to the presumption of regularity that adheres to all judicial proceedings. -14- Coleman, supra, at 180. In light of the facts of the case, as presented to us, we cannot say that the trial court's sentencing determinations did not achieve the overriding purposes and principles of felony sentencing. Because we cannot clearly and convincingly find either that the trial court did not follow the procedures set forth in R.C. 2929.13(D) or that those procedures were followed, but that there was an insufficient basis for overriding the presumption in favor of a prison term in sentencing the appellees, we affirm the sentences below. R.C. 2953.08(G)(1)(c). -15- It is ordered that appellees recover of appellant their 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 Cuyahoga County Court of Common Pleas 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. TIMOTHY E. McMONAGLE, P.J. and JOHN T. PATTON, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .