State v. Sutton, 2012 Ohio 1054

Sutton was convicted in 2006 of attempted murder, felonious assault, attempted felonious assault, inducing panic, failure to comply, and resisting arrest (acquittal on firearm specs); sentenced originally to 41½ years.
On appeal, this court merged felonious assault and attempted murder for each victim, reversed inducing panic counts, and found the 41½-year sentence disproportionate.
Supreme Court of Ohio dismissed Sutton’s appeal but remanded for allied-offenses reconsideration; on remand, Sutton again had felonious assault/attempted murder merged and was resentenced.
At resentencing (July 2011), the trial court imposed 41½ years: ten years each for two attempted murders of Tolbert and Lovelady, eight years for two more attempted murders, five years for failure to comply, and six months for inducing panic (two counts); the terms were arranged with some consecutive and some concurrent runs.
Sutton challenges six assignments of error: consecutive-sentence basis, due-process adequacy of reason-giving, proportionality to similarly situated offenders, consideration of present circumstances, maximum sentence for failure to comply, and court-cost assessment.
This court affirms, concluding the sentence is within statutory limits, properly considers sentencing factors, and is not contrary to law; HB86’s factual-findings requirement did not apply to Sutton’s July 2011 sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Consecutive sentences based on judicial fact-finding	Sutton (State) argues improper fact-finding for consecutive terms	Sutton contends sentencing relied on impermissible judicial fact-finding	Not error; de novo resentencing; no pre-HB86 fact-finding requirement
Adequacy of sentencing explanation	State asserts proper explanation under statutory factors	Sutton claims insufficient or unclear reasoning	Adequate under the record; court stated purposes, recidivism, seriousness, and relevant factors
Proportionality/consistency of sentence	State argues sentence consistent with similar offenders	Sutton argues disproportionate compared to similar cases	Not contrary to law; court appropriately applied guidelines and found proportional within range
Consideration of present circumstances	State contends present circumstances considered	Sutton argues court ignored post-sentencing rehabilitation	Present circumstances considered; no reversible error

State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (held no mandatory judicial fact-finding for most sentencing steps; deference to trial court discretion in sentencing)
State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (two-step review of felony sentences; first constitutionality, then abuse of discretion)
State v. Hodge, 128 Ohio St.3d 1 (2010-Ohio-6320) (reaffirmed no fact-finding obligation for consecutive terms under pre-HB86 law)
State v. Hayes, 2009-Ohio-1100 (10th Dist. No. 08AP-233) (consistency in sentencing allows divergence within factors; not strict uniformity)
State v. Battle, 2007-Ohio-1845 (10th Dist. No. 06AP-863) (discretion in applying guidelines; case-by-case comparison not required)
State v. Hall, 2008-Ohio-6228 (10th Dist. No. 2008-Ohio-6228) (application of proportionality principles in sentencing)
State v. Saur, 2011-Ohio-6662 (10th Dist. No. 10AP-1195) (requires proper application of sentencing guidelines to maintain consistency)
State v. Weitbrecht, 86 Ohio St.3d 368 (1999-Ohio-113) (three-part test for disproportionate punishment (gravity, compare within state, compare with other jurisdictions))
State v. Hairston, 2008-Ohio-2338 (2008-Ohio-2338) (aggregate consecutive sentences generally not cruel and unusual absent gross disproportionality)
State v. Bell, 2008-Ohio-453 (8th Dist. No. 89514, 2008-Ohio-453) (distinguishes cases on intent/seriousness for proportionality analysis)