State v. Veley, 2016 Ohio 5545

Marcus Veley was indicted for one count of first-degree felony rape (R.C. 2907.02) after an incident at the victim’s mother’s apartment on or about March 13, 2015.
The victim (age 16) testified Veley pulled down her shorts and engaged in vaginal and anal sex despite her saying “no,” causing bruises and lacerations; a SANE exam found semen near the rectal opening and injuries to the cervix and rectal area.
Veley testified the sex was consensual, claiming the victim initiated kissing and did not resist; he admitted ejaculating on her buttocks.
A jury convicted Veley; the trial court sentenced him to 11 years’ imprisonment, noting the brutality of the offense and Veley’s criminal history and that he was on transitional control at the time.
On appeal Veley challenged the maximum sentence as an abuse of discretion, arguing the court failed to properly consider mitigating factors under R.C. 2929.12.
The appellate court affirmed the conviction and sentence (finding the court had considered R.C. 2929.11 and 2929.12), but remanded for a nunc pro tunc entry to remove erroneous statutory references in the sentencing entry.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by imposing the maximum permitted sentence	State: Sentence appropriate given brutality, victim injury, defendant’s record, and he was on transitional control	Veley: Court failed to properly consider mitigating R.C. 2929.12 factors (victim induced/offender did not expect physical harm) so max term is unjustified	Court: Not contrary to law; court expressly considered R.C. 2929.11 and 2929.12 and could weigh factors; sentence affirmed
Whether sentencing entry improperly referenced statutes mandating the sentence	State: none beyond using the entry language	Veley: challenged only excessiveness; state noted erroneous statutory references	Court: Entry erroneously referenced R.C. 2929.13(F), R.C. 2929.14(D)(3) (nonexistent), and Ch. 2925; remand for nunc pro tunc correction

State v. Kalish, 120 Ohio St.3d 23 (recognizes that an express statement that the court considered R.C. 2929.11 and 2929.12 and imposed a sentence within statutory range is not clearly and convincingly contrary to law)
State v. Arnett, 88 Ohio St.3d 208 (decisionmaker has discretion to assign weight to statutory sentencing factors)
State v. Brimacombe, 195 Ohio App.3d 524 (6th Dist.) (stating that merely stating the court considered statutory factors suffices; no detailed algebraic recitation required)