COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73680, 73681 and 73682 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ALEXANDER DAVIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 3, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-351870, CR-354109 and CR-355037. JUDGMENT: Affirmed and Remanded for Re-sentencing. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor James E. Valentine Assistant County Prosecutor 8th Floor, The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: James A. Draper Cuyahoga County Public Defender Robert M. Ingersoll Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1513 SWEENEY, JAMES D., J.: In this consolidated appeal, defendant-appellant Alexander Davis appeals from the trial court's decision convicting him of -2- attempted drug possession and two counts of drug possession. For the reasons set forth below, we affirm Davis' conviction and remand the case to the trial court for re-sentencing. Alexander Davis was indicted for possession of crack cocaine in each of three separate cases -- CR-355037, CR-354109, and CR- 351870. In CR-354109 and CR-351870, he was also charged with possession of criminal tools. On November 13, 1997, Davis pleaded guilty to possession of drugs in CR-355037 and CR-354109, and to attempted possession of drugs in CR-351870. At the time of the offenses, Davis was on probation for attempted receiving stolen property (motor vehicle) and attempted drug trafficking. Davis, through trial counsel, asked the court to consider him for an inpatient drug treatment program. Instead, the court sentenced Davis to one year in prison in CR-354109, a consecutive term of one year in CR-355037, and a concurrent term of six months in CR-351870. This appeal followed. Davis sets forth two assignments of error. I. ALEXANDER DAVIS WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW THEN (SIC) THE TRIAL COURT WENT AGAINST THE STATUTORY PRESUMPTION AND IMPOSED A PRISON SENTENCE INSTEAD OF A COMMUNITY CONTROLLED SANCTION ON A FIFTH-DEGREE FELONY, WITHOUT PROPERLY CONSIDERING ANY OF THE SENTENCING FACTORS OF R.C. 2929.13. In his first assignment of error, Davis argues the trial court erred in failing to consider the sentencing factors of R.C. -3- 2929.13(B) when determining his sentence. R.C. 2929.13(B) sets forth the factors for the court to consider when sentencing an offender for a fourth or fifth degree felony. None of the factors is applicable to Davis' case except R.C. 2929.13(B)(1)(h) -- the offender previously was subject to a community control sanction, and the offender committed another offense while under the sanction. Davis argues that R.C. 2929.13(B)(2)(b) creates a presumption against prison terms in favor of community controlled sanctions and since only one of the R.C. 2929.13 factors weighed in favor of incarceration, the court erred in sentencing him to prison instead of imposing a community control sanction. We disagree. Despite Davis' claims to the contrary, it has been determined that there is no statutory presumption that a fourth or fifth degree felon be sentenced to a community control sanction rather than prison. State v. Sutherland (Aug. 15, 1997), Greene County App. No. 97CA25, unreported. Although the Sentencing Commission recommended a straight presumption against imprisonment for fourth and fifth degree felonies unless one of the eight enumerated factors increasing the seriousness of the offense existed, the General Assembly was unwilling to accept a straight presumption. Rather, R.C. 2929.13(B) gives general guidance and a disposition against imprisonment for fourth and fifth degree felonies. Griffin and Katz, Ohio Felony Sentencing Law, 1996-97, pp. 61-62, 67. Id.Furthermore, where the record is silent, a reviewing court may presume that the trial court considered the statutory factors when imposing a sentence. State v. Davis (Nov. 1, 1993), Stark App. No. -4- CA-9153, unreported (citing State v. Adams (1988), 37 Ohio St.3d 295 at par. 3 of syllabus). Where the sentences are 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. Banks (Nov. 1, 1993), Greene App. No. 92CA112, unreported (citing State v. Krouse (1987), 39 Ohio St.3d 18, 20.) R.C. 2929.14(B)(2) does not require the trial court to state its reasons for imposing a prison term if its reasons are otherwise apparent in the record. State v. Phillips (June 18, 1997), Hamilton App. No. B-9606134, unreported; State v. White (Jan. 20, 1994), Cuyahoga App. No. 63879, unreported; State v. Taylor (Dec. 26, 1997), Hamilton App. No. C-961141, unreported. In this case, the record reveals that Davis had previously been placed on probation, but had failed to report to his probation officer as ordered and had lapsed into using drugs. The trial court could reasonably have determined that another community control sanction would not be warranted in Davis' case. Accordingly, we overrule Davis' first assignment of error. II. ALEXANDER DAVIS HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY THE MAXIMUM SENTENCES IMPOSED IN THE CASE AT BAR, BECAUSE THEY DO NOT COMPORT WITH OHIO'S NEW SENTENCING SCHEME. In his second assignment of error, Davis argues the trial court erred in sentencing him to the maximum possible sentence in CR-355037 and CR-354109 without complying with R.C. 2929.19(B)(2)(d) which requires the court to state its reasons for imposing the maximum prison term. The state concedes that the trial court failed to make the requisite findings in this case. [I]n the absence of either an oral or written finding that the accused satisfies one of the necessary preconditions of R.C. 2929.14(C), a court may not impose the maximum term of imprisonment available under R.C. 2929.14(A). *** Such a finding may be couched in terms of the direct language of R.C. 2929.14(C) or by specific reference to the code section provided there is a factual basis in the record to support the finding. State v. Boss (Sep. 15, 1997), Clermont App. No. CA96-12-107, unreported. R.C. 2929.14(C) provides that the maximum authorized term of imprisonment may only be imposed upon offenders who committed the worst form of the offense, offenders who posed the greatest likelihood of committing future crimes, certain major drug offenders, and certain repeat violent offenders. In this case, the trial court did not state which provision of R.C. 2929.14(C) it relied upon for imposing the maximum terms. Consequently, we remand this case to the trial court for re- sentencing. See State v. Mikol (Apr. 9, 1998), Cuyahoga App. No. 72447, unreported; State v. Banks (Nov. 20, 1997), Cuyahoga App. No. 72121, unreported. Davis' conviction is affirmed. We remand the sentence imposed by the trial court and remand this case for re-sentencing in compliance with R.C. 2929.19(B)(2)(d). Judgment affirmed and remanded for re-sentencing. 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. O'DONNELL, P.J., and ROCCO, J., CONCUR. JAMES D. SWEENEY 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 .