State v. AtkinsonState v. Atkinson
For Plaintiff-Appellee
GERALD ANDERSON Muskingum Couty Prosecutor’s Office 27 North 5th Street, Ste. 201 Zanesville, OH 43701
For Defendant-Appellant
JOHN RUTAN 336 South High Street Columbus, OH 43215
Gwin, J.,
{¶1} Defendant-appellant Eric A. Atkinson [“Atkinson”] appeals the imposition of a maximum sentence after his negotiated guilty plea in the Muskingum County Court of Common Pleas.
Facts and Procedural History
{¶2} Atkinson was indicted on Count One, Felonious Assault, in violation of
{¶3} Atkinson entered a guilty plea on January 11, 2018, to Counts One, Two, and Five. The state agreed to dismiss Counts Three and Four. A pre-sentence investigation report was prepared. According to the report, A.B. was taking her children trick-or-treating for Halloween on October 29, 2017. She went with her friend in her friend‘s neighborhood, who lives near Atkinson. Atkinson is the father of the children. As they walked past Atkinson‘s residence, he came out to the street wearing a mask to scare the children. When A.B. asked him to stoр, they began arguing. Atkinson pushed her, then she kicked him, and he punched her in the face, and then pushed her again. A.B. and her group went back to her friend‘s residence and called the Sherriff’s office. A.B. begаn vomiting and feeling sick, and while speaking with law enforcement, she lost consciousness. The Officers then responded to Atkinson’s residence. Atkinson
{¶4} Atkinson was sentenced on February 12, 2018. The trial court merged Count One and Count Two. The state elected to move forward on Count One. The trial court sentenced Atkinson to an eight-yeаr sentence on Count One and a six-month sentence on Count Five, to be served concurrently for an aggregate sentence of eight years.
Assignment of Error
{¶5} Atkinson raises one assignment of error,
{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE APPELLANT TO A MAXIMUM PRISON TERM.”
Law and Analysis
Standard of Appellate Review.
{¶7} We review felony sentences using the standard of reviеw set forth in
{¶8} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the
{¶9} Clear and convincing evidence is that evidence “which will provide in the mind of the trier of faсts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 120 N.E.2d 118.
ISSUE FOR APPEAL.
Whether the trial court properly imposed the maximum sentence in Atkinson’s case.
(1). R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.
{¶10} A trial court’s imposition of a maximum prison term for a felony conviction is not contrary to law as long as the sentence is within the statutory range for the offense, and the court considеrs both the purposes and principles of felony sentencing set forth in
{¶11} In State v. Marcum, the Supreme Court observed,
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent forapрellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidenсe that the record does not support the sentence.
146 Ohio St.3d at ¶ 23, 2016–Ohio–1002, 59 N.E.3d 123.
{¶12}
{¶13}
{¶14} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court severed the judicial-fact-finding portions of
{¶15} “Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under
{¶16} Thus, post-Foster, “there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong, 4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts are still required to сonsider the general guidance factors in their sentencing decisions.
{¶17} There is no requirement in
{¶18} In the case at bar, the trial court had the benefit of a pre-sentence investigation report, a letter from B.A., letters on behalf of Atkinson and B.A. and the arguments of counsel. The trial court obsеrved,
You have three prior felony convictions, the last one being a weapon under disability; the other two being one possession of cocaine, an F4, and
possession of marijuana; and prior to that was possession of cocaine with a forfeiture specification where 11 firearms, were taken away. And you were on community control with that when you committed this offense. Thе Court would also note that you were charged twice with domestic violence, only the -- one was the conviction. You have seven suspensions of your license.
* * *
According to the presentence investigation, there‘s been two surgeries already. There‘s additional mental and dental things that had to be dealt with. And after she heals, in a year there will be two addition -- more additional surgeries at least. That‘s why no restitution‘s being ordered at this point in time. It won‘t be known for quite some time, because her injuries are going to take forever. I don‘t know if the children‘s injuries will ever be recovered. They were оut trick-or-treating when all this happened.
Upon review of all this, the Court feels that the appropriate sentence will be an eight-year sentence on the felony of the second degrеe; a six month sentence on the misdemeanor of the first degree, to be served concurrently. The Court will order that you be given 12 days credit towards that sentence.
The Court finds that -- this to be appropriate, given the nature and seriousness of your conduct, when it occurred, how it occurred, and the fear that you have created to those around you.
Sent. T. Feb. 12, 2018 at 9-11.
{¶19} Accordingly, the trial court considerеd the purposes and principles of sentencing [
{¶20} Upon a thorough review, we find the record clearly and convincing supports the sentence imposed by the trial court. We find the trial court properly considered the purposes and principles of sentencing set forth in
{¶21} Atkinson’s sole assignment of error is overruled. The judgment of the Muskingum County Court of Common Pleas is affirmed.
By Gwin, J.,
Wise, P.J., and
Delaney, J., concur