State v. Lofton

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[Cite as State v. Lofton, 2004-Ohio-169.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 19852 T.C. CASE NO. 02CR4091 LOVILL LOFTON : Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 16th day of January, 2004. . . . . . . . . . Mathias H. Heck, Jr., Pros. Attorney; Natalia S. Harris, Asst. Pros. Attorney, P.O. Box 972, Dayton, Ohio 45422, Atty. Reg. No. 0072431 Attorney for Plaintiff-Appellee Charles Bursey, II, 333 West First Street, Suite 445, Dayton, Ohio 45402, Atty. Reg. No. 0073962 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} Defendant, Lovill Lofton, appeals from his conviction and sentence for raping his daughter, L.B. {¶2} Defendant. On or about November 7, 2002, L.B. loaned her car to Following a night of heavy drinking, having consumed approximately twenty four beers, Defendant returned to L.B. s residence at around 3:00 a.m. Using L.B. s keys to enter her residence, Defendant entered L.B. s bedroom, got into bed with her, and proceeded to forcibly rape L.B. According to 2 Defendant, he did not realize the victim was not his girlfriend but his daughter due to his level of intoxication. {¶3} Defendant Burglary, R.C. 2907.02(A)(2). was indicted 2911.11(A)(1), on and one one count count of of Aggravated Rape, Following a jury trial Defendant was found not guilty of aggravated burglary but guilty of rape. court R.C. sentenced Defendant to eight years The trial imprisonment and designated him a sexually oriented offender. {¶4} Defendant has timely appealed to this court from his conviction and sentence. his sentence, not his On appeal Defendant challenges only conviction or his sexual offender classification. FIRST ASSIGNMENT OF ERROR {¶5} APPELLANT S SENTENCE IS CONTRARY TO THE LAW AND UNSUPPORTED BY THE RECORD. SECOND ASSIGNMENT OF ERROR {¶6} THE RECORD DOES NOT DEMONSTRATE THAT THE COURT GAVE ADEQUATE CONSIDERATION TO APPLICABLE STATUTORY GUIDELINES WHEN IMPOSING APPELLANT S SENTENCE. {¶7} Defendant was found guilty of rape in violation of R.C. 2907.02(A)(2). That offense is a felony of the first degree for which the trial court must impose a definite prison term of three, four, five, six, seven, eight, nine or ten years. 2929.13(D); Defendant to R.C. 2929.14(A)(1). eight years The imprisonment, permissible sentencing range. trial court which Before imposing is R.C. sentenced within the sentence the 3 trial court indicated on the record that it had considered the purposes and principles of felony sentencing in R.C. 2929.11, the presentence investigation report, and the seriousness and recidivism factors in R.C. 2929.12. {¶8} The appellate jurisdiction of the courts of appeals is determined by statute. Constitution. That Article jurisdiction IV, Section with respect (B)(2), to Ohio review of criminal sentences is set out in R.C. 2953.08. {¶9} R.C. 2953.08(A)(1)-(6) specifies the particular grounds on which a defendant may seek appellate review of his or her sentence. Paragraph (G)(1) of that section authorizes a remand when statutorily-required findings were not made by the trial court. Paragraph increase, appealed reduce, or otherwise section modify a that vacate court to that is sentence Id. provides [to] appellate remand the matter to the sentencing court for resentencing. further or the and section this authorizes sentence That under (G)(2) [t]he the appellate court s standard for review is not whether the sentencing court abused its discretion. In consequence of that, our review is limited to alleged errors in the procedures the trial court is required by statute to follow with respect to the offense, the defendant, and the sentence that was imposed. State v. Kennedy (Sept. 12, 2003), Montgomery App.No. 19635, 2003-Ohio-4844; State v. Alvarez (Sept. 26, 2003), Montgomery App. No. 19670, 2003-Ohio-5094. {¶10} R.C. 2953.08(G)(2) specifies that the appellate court can order the relief that section authorizes only if the appellate court clearly and convincingly finds one or both of 4 Subsection (a) the alternative grounds listed in (a) and (b). involves certain statutory prescriptions that are either not involved in this case or which Defendant s contentions don t implicate. Subsection (b) is that the sentence is contrary to law. {¶11} That a sentence is contrary to law is one of the grounds on which a defendant may seek appellate review of his or her sentence. of discretion R.C. 2953.08(A)(4). claims, however, That does not include abuse because R.C. 2953.08(G)(2) expressly deprives appellate courts of an abuse of discretion standard of review. means that Kennedy, supra. Rather, contrary to law a sentencing decision manifestly ignores an issue or factor which a statute requires a court to consider. Griffin and Katz, Ohio Felony Sentencing Law (2002 Ed.), § T 9.7 Where a sentencing court fails to make findings required in R.C. 2929.13 or R.C. 2929.14, fails to engage in the seriousness and recidivism analysis required under R.C. 2929.12, or fails to set forth reasons when reasons are required in R.C. 2929.19, the sentence is contrary to law. Id., at p. 779, citing State v. Edmonson, 86 Ohio St.3d 324, 1999-Ohio-110. Kennedy, supra. {¶12} Defendant s contentions involve none of those things. Neither does it involve any of the other grounds for appeal set out in R.C. 2953.08(A). Instead, Defendant argues that there were a number of factors in this case, including his age, his lack of previous mental illness, convictions for his remorsefulness, sexual offenses, his and lack the of fact any that Defendant did not use drugs or alcohol to impair the victim and 5 did not cause physical injury to the victim, that weigh against the lengthy sentence the trial court imposed. Defendant also argues that it would have been appropriate for the trial court to provide a more detailed account on the record of its analysis of the statutory sentencing factors. {¶13} Defendant does not argue that the trial court failed to make specific findings required by R.C. 2929.13 or R.C. 2929.14, or failed to consider the seriousness and recidivism factors or engage in the analysis required by R.C. 2929.12. Defendant points to no failure on the part of the trial court to comply with any specific procedure the court was required to follow in order to impose the sentence it selected. Defendant merely argues that the trial court was wrong in the conclusion that it reached, given the evidence in this case: in other words, that the sentence was too harsh and unsupported by the record. That is, essentially, an abuse of discretion claim which is not a proper ground for appeal, R.C. 2953.08(A), or a matter for which R.C. 2953.08(G) permits appellate review. Kennedy, supra; Alvarez, supra. {¶14} We are not disposed to review the other statutory requirements implicated by the Defendant s sentence in order to determine contention whether in that they were regard in satisfied, absent appellant s brief, some specific reasons in support of the contentions, and citations to the authorities, statues, and parts of the record on which appellant relies. App.R.16(A)(7). None are presented here. Alvarez, supra. {¶15} The assignments of error are overruled. The judgment 6 of the trial court will be affirmed. BROGAN, J. and WOLFF, J., concur. Copies mailed to: Natalia S. Harris, Esq. Charles Bursey, II, Esq. Hon. Patrick J. Foley

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