COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73303 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : ALFRED MATHEWS : OPINION : Defendant-Appellant : Date of Announcement of Decision: OCTOBER 15, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-328178 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor KESTRA SMITH, Asst. Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT M. INGERSOLL, Asst. Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, J.: Defendant-appellant Alfred Mathews appeals from his sentence following a guilty plea to robbery (R.C. 2011.02). Defendant contends the trial court abused its discretion in sentencing him to 4 to 15 years rather than granting probation. We find no error and affirm. In September 1995, defendant was indicted by a Cuyahoga County Grand Jury for one count of robbery with two specifications of prior theft convictions and one count of felonious assault with a violence specification, both aggravated felonies of the second degree. The crimes in question occurred on July 21, 1995. On February 2, 1996, defendant was arraigned and entered a plea of not guilty. On May 15, 1996, defendant retracted his not guilty plea and pled guilty to robbery. Count II was nolled. The trial court ordered a pre-sentence investigation report. On June 17, 1996, a sentencing hearing was held at which time he was sentenced to four to fifteen years incarceration. On July 1, 1996, the trial court overruled a motion to reconsider. On July 22, 1996, defendant filed a notice of appeal. On August 20, 1996, this Court dismissed the appeal. On January 8, 1997, defendant filed a motion for shock probation, which the court overruled on February 14, 1997. On October 7, 1997 this Court granted defendant's motion for a delayed appeal. Defendant's motion to withdraw his plea was denied on March 12, 1998. Defendant's sole assignment of error states as follows: -3- I. ALFRED MATHEWS WAS DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW, WHEN THE TRIAL COURT ARBITRARILY DENIED HIM PROBATION. Defendant contends that he should have been granted probation rather than sentenced to 4 to 15 years in prison. The colloquy between the court and defendant at his sentencing hearing indicate that the defendant had a history of prior offenses; that he admitted these were related to his drug addiction; that he claimed he had turned his life around by moving to Buffalo and being employed as a truck driver; and that he was drug free since September 1995. The trial court by cross-examination of the defendant brought out that defendant had lied about the length of time he was off drugs; that the evidence submitted by defendant was misleading; that if she put him on probation he could not drive a tractor-trailer because of his drug addiction; and that he could not obtain insurance for his truck driving. The trial court concluded by stating as follows: You haven't been off the drug wagon long enough for me to take a chance with letting you drive a tractor-trailer truck and you know that, don't you? APPELLANT: Well, I think I know myself and I haven't' -- I haven't used any drugs and I don't intend to use any drugs. COURT: Okay. Well, Mr. Mathews, I was giving you a chance but I'm -- you obviously don't' want the chance. I'm going to sentence you four to fifteen years at LCI. Good luck to you. MR. BUTLER: Judge -- COURT: That's it. I gave him every chance he could to tell the truth and tell me he wanted probation. Forget it. -4- (Tr. 19-20) Defendant argues that the court arbitrarily denied him probation, thereby violating his constitutional right of due process. The question presented here is whether his right to due process was violated because the court failed to consider appropriate factors when it imposed a term of incarceration rather than placing defendant on probation. The lawful minimum term of incarceration for robbery is three, four, five, six, seven, or eight years. The lawful maximum term of incarceration is fifteen. R.C. 2929.11(B)(2)(a). R.C. 2929.12 outlines factors courts must consider in imposing felony sentences and provides in pertinent part the following: (A) In determining whether 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; *** 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; * * * (C) The following do not control the court's discretion, but shall be considered in favor of imposing a shorter minimum term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: -5- (1) The offense neither caused nor threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so; (2) The offense was the result of circumstances unlikely to recur; (3) The victim of the offense induced or facilitated it; (4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense; (5) The offender acted under strong provocation; (6) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense; (7) The offender is likely to respond quickly to correctional or rehabilitative treatment. (D) The criteria listed in divisions (B) and (C) of this section do not limit the matters that may be considered in determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed. R.C. 2929.12, eff. 10-12-94. The general rule in Ohio is that a trial court has broad discretion in sentencing within statutory limits, and thus, unless the trial court abused its discretion in imposing a sentence on a defendant, a reviewing court will not overturn the sentence. Independence v. Tector (1996), 116 Ohio App.3d 359, 361. A court will not be found to have abused its discretion in sentencing if the sentence it imposes is within the statutory limits. Toledo v. Reasonover(1965), 5 Ohio St.2d 22, paragraph one of the syllabus. See, also, State v. Burge (1992), 82 Ohio App.3d 244, 249. -6- When considering whether a trial court has abused its discretion, more is involved than differences in opinion. Rather, [t]he term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an `abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. State v. Jenkins (1984), 15 Ohio St.3d 164, 222, citing Spalding v. Spalding (1959), 355 Mich. 382, 384-385. The trial court is not required to expressly state on the record that it considered statutorily enumerated sentencing factors. A silent record raises the presumption that the trial court considered the statutory factors. State v. Adams (1988), 37 Ohio St.3d 295, paragraph three of syllabus; State v. Hamann (1993), 90 Ohio App.3d 654, 661; State v. Bivens (1988), 49 Ohio App.3d 75, 77. Moreover, where a criminal sentence is within statutory limits, an appellate court should accord the trial court the presumption that it considered the statutory mitigating criteria in the absence of an affirmative showing that it failed to do so. State v. Taylor (1992), 76 Ohio App.3d 835, 839; State v. Crouse (1987), 39 Ohio App.3d 18, 20. Moreover, [a] reviewing court must presume that the trial court applied the law correctly. State v. Coombs (1985), 18 Ohio St.3d 123, 125, citing State v. Eubank (1979), 60 Ohio St.2d 183. -7- In other words, upon review, a trial court proceeding is afforded a presumption of regularity. And finally, the defendant bears the burden to show that the sentencing court failed to consider appropriate criteria. 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 trial court considered the sentencing criteria. In the instant case, we presume that the lower court considered the appropriate statutory factors. There are other factors present that indicate that incarceration was certainly within the trial court's discretion. Defendant was a repeat offender. By virtue of R.C. 2951.02(F)(2), a repeat offender shall not be placed on probation. R.C. 2929.01(A)(5) provides that it is prima-facie evidence that one is a repeat offender if: ***[h]aving been convicted of two or more felonies, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent offense. R.C. 2929.01(A)(5), eff. 10-12-94. The record before the trial court showed that after defendant had been convicted of two or more felonies and had been imprisoned pursuant to sentence, he committed a subsequent offense. As a repeat offender, he was ineligible for probation. Furthermore, while this case does not involve violation of the drug laws, defendant conceded that his criminal behavior was a -8- direct result of his use of illegal drugs. The court's inquiry of defendant as to when he stopped using illegal drugs was pertinent. Although the robbery in question occurred in July 1995, defendant represented that he had only quit using drugs in September 1995 and had been drug free for approximately three weeks before getting hired as a tractor-trailer driver. The court questioned defendant exhaustively as to why he felt at that point that he had the ability to remain drug free and law abiding. This indicated the court's consideration of the nature and circumstances of defendant's offense as well as factors present in his history, character and condition that indicated that defendant would offend again or whether correction or rehabilitation are appropriate. As the record reveals, the trial court apparently considered the relevant factors before imposing a term of incarceration and deciding that defendant was not a good risk for probation under the considerations of R.C. 2951.02. The record also reveals why probation was not a viable option in this case. Defendant was a repeat offender whom the court had a reasonable interest in protecting the public from future risk of harm. The nature of and circumstances of the offense in question, as well as the history, character and condition of defendant were adversely affected by defendant's addiction to illegal drugs. The offenses of robbery and felonious assault by their very nature indicate defendant's actions either caused harm or threatened harm to persons or property. There was no evidence of provocation which would mitigate the offenses. Based on the frequency of defendant's -9- criminal behavior, it was reasonable for the court to conclude he was unlikely to respond affirmatively to probation. The lower court was not convinced that the character and attitude of defendant was such that he was unlikely to commit another offense. Based on the foregoing, we find no indication of an abuse of discretion on the part of the trial court in choosing incarceration over probation. Defendant's sole assignment of error is overruled. Judgment affirmed. -10- 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 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. BLACKMON, A.J., CONCURS. TIMOTHY E. McMONAGLE, J., CONCURS IN JUDGMENT ONLY. JAMES M. PORTER JUDGE 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 .