2019 Ohio 1278
Ohio Ct. App.2019Background
- On Dec. 11, 2017 Linda S. Osting shot her husband, Mitchell, causing life‑threatening injuries requiring multiple surgeries and ongoing care.
- A Defiance County grand jury indicted Osting on attempted aggravated murder (Count I) and felonious assault (Count II), each with a three‑year firearm specification.
- Pursuant to a plea agreement, Osting pleaded guilty to Count II (felonious assault) and the firearm specification; Count I and its specification were dismissed by the State.
- The trial court sentenced Osting to 8 years for felonious assault plus a mandatory consecutive 3 years for the firearm specification, an aggregate 11‑year sentence.
- Osting appealed, raising three assignments of error: (1) the trial court imposed a maximum sentence without properly considering statutory sentencing factors; (2) the court failed to make findings under R.C. 2951.03(B)(5) after she disputed a PSI statement; (3) the court relied on an incomplete presentence investigation (PSI).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the maximum sentence was improper for failing to consider R.C. 2929.12 factors | State: trial court considered statutory factors and may impose any sentence within the statutory range | Osting: court failed to properly consider mitigating factors in R.C. 2929.12(C) and (E) and erred in imposing maximum term | Court affirmed: sentence within statutory range; record shows court considered R.C. 2929.11/2929.12 and its credibility findings and aggravating facts supported the sentence |
| Whether R.C. 2951.03(B)(5) findings were required after Osting disputed a PSI statement | State: no finding required because disputed statement did not appear in PSI | Osting: she challenged a statement in the PSI and the court had to either find as to accuracy or state finding unnecessary | Court affirmed: disputed statement was not in the PSI, so R.C. 2951.03(B)(5) did not apply |
| Whether sentencing on an incomplete PSI violated R.C. 2929.19(B)(1) | State: PSI was complete and court inquired as to completeness before proceeding | Osting: PSI was not fully completed (she had not finished filling it out in custody) and court relied on incomplete report | Court affirmed: court confirmed PSI completeness with ISP officer before hearing; defendant did not timely object; PSI contained defendant’s lengthy statement and appeared complete |
| Whether dismissed charges improperly influenced sentence | State: court may consider dismissed charges among other factors but cannot base maximum solely on them | Osting: sentence improperly influenced by belief she committed dismissed attempted aggravated murder | Court affirmed: court did not rely solely on dismissed charges; it considered severity of injury, circumstances, and credibility issues in support of the sentence |
Key Cases Cited
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (appellate review of felony sentences requires clear‑and‑convincing showing that record does not support trial court findings or sentence is contrary to law)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition of clear and convincing evidence)
- State v. Arnett, 88 Ohio St.3d 208 (Ohio 2000) (trial court has broad discretion in weighting R.C. 2929.12 sentencing factors)
- State v. Payne, 114 Ohio St.3d 502 (Ohio 2007) (a trial court’s statement that it considered statutory sentencing criteria is sufficient)