2014 Ohio 310
Ohio Ct. App.2014Background
- State appeals Franklin County Common Pleas' 48-month community control sentence for Milhoan, replacing prison time.
- Milhoan previously remanded after this court’s Milhoan I for failure to make required R.C. 2929.13(D)(2) findings.
- Milhoan pled guilty to eight counts (four second-degree, four fourth-degree) involving pandering sexually oriented material with a minor; the State agreed to drop counts 5–20 and not pursue federal charges.
- Original sentence included four years of community control, intensive supervision, employment, urine screens, internet restrictions; Milhoan was classified as a Tier II sex offender.
- Post-H.B. No. 86, the court re-sentenced on December 20, 2012 to 48 months of community control with intensive supervision via Jefferson County and a required Tri-County Health Center program; the State again appeals arguing improper findings and contrary law.
- Court held the HB 86 changes did not require express 2929.12 factor-by-factor findings, but required express 2929.13(D)(2) findings, which the court made, and the record supported them; the sentence was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court made proper R.C. 2929.13(D)(2) findings. | State argues no valid findings to overcome presumption of prison. | Milhoan contends findings were made and supported by the record. | Yes; findings were made and supported by clear and convincing evidence. |
| Whether the downward-departure to community control was legally permissible given the offense and recidivism factors. | State argues the record lacks legitimate ‘less serious’ factors and overstates others. | Milhoan asserts the record supports balancing and risk-reduction through treatment and supervision. | Yes; the court properly weighed R.C. 2929.12 factors and concluded community control would lessen recidivism without demeaning the offense. |
Key Cases Cited
- Milhoan I, 2012-Ohio-4507 (10th Dist. No. 12AP-61 (Ohio)) (remand for proper R.C. 2929.13(D) findings after initial failure)
- State v. Fisher, 2013-Ohio-4063 (10th Dist. No. 13AP-236 (Ohio)) (post-H.B.86 framework for 2929.13(D) findings; weighing of 2929.12 factors)
- State v. Arnett, 88 Ohio St.3d 208 (2000) (R.C. 2929.12 factors not strict factual findings but must be considered)
- State v. Kalish, 2008-Ohio-4912 (Ohio Supreme Court) (reaffirmed that 2929.11/2929.12 are considerations, not numerical findings)
- State v. Foster, 2006-Ohio-856 (Supreme Court) (structural changes to sentencing; not controlling for 2929.12 parity in post-HB86 era)
- State v. Saur, 2011-Ohio-6662 (10th Dist. No. 10AP-1195 (Ohio)) (noted that 2929.11/2929.12 are not fact-finding statutes; require consideration)