State v. HelmstetterState v. Helmstetter
Case Information
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[Cite as
State v. Helmstetter
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-07
v. JORDAN M. HELMSTETTER, O P I N I O N DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-08
v. JORDAN M. HELMSTETTER, O P I N I O N DEFENDANT-APPELLANT.
Appeals from Auglaize County Common Pleas Court Trial Court Nos. 2011-CR-91 and 2012-CR-157 In Appeal No. 2-13-07, Appeal Dismissed In Appeal No. 2-13-08, Judgment Affirmed Date of Decision: September 16, 2013 APPEARANCES:
Gerald F. Siesel for Appellant
Edwin A. Pierce and R. Andrew Augsburger for Appellee *2 WILLAMOWSKI, J.
{¶1}
Defendant-appellant Jordan M. Helmstetter (“Helmstetter”) brings
these appeals from the judgments of the Court of Commоn Pleas of Auglaize
County sentencing him to an aggregate prison term of 78 months for convictions
in case numbers 2011-CR-91 and 2012-CR-157. Helmstetter argues that the trial
court did not properly consider and apply the sentencing guidelines set forth in
Helmstetter as follows: Count 1 - Drug Trafficking in violation of
a. During the period of the sanctions, the Defendant must abide by the law * * *;
b. The Defendant shall neither consume nor possess any alcoholic beverages or substances of abuse оr drug paraphernalia;
c. The Defendant shall not use, purchase, have under my (sic) control, or be in the presence (sic) any mind altering substances * * *;
d. The Defendant shall not visit or be present on any premises where alcohol is served or substances of abuse or drug pаraphernalia are present;
* * *
j. The Defendant shall not have any contact or association directly or indirectly with any drug users or drug traffickers.
The trial court also notified Helmstetter that if he violated the terms of the
community control, he could be ordered to servе prison terms of eighteen months
on Count I, twelve months on Count IV, and twelve months on Count V with all
sentences to be served consecutively for a total prison term of forty-two months.
On July 17, 2012, the State filed a motion for a hearing on a violation
of community control sanctions. The supporting affidavit alleged that Helmstetter
had possessed heroin and had possessed digital scales, thus violating the terms of
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his community control. As a result of the above allegations, on September 7,
2012, the Auglaize County Grand Jury indicted Helmstetter on one count of
possession of herоin in violation of
The trial court’s sentence of [Helmstetter] to a maximum
sentence of thirty-six months consecutive to a reimposed
community control violation sentence of forty-two months was
contrary to law and further constituted an abuse of discretion by
fаiling to properly consider and apply the sentencing guidelines
set forth in [
the sentence set forth in trial court case number 2012-CR-157, which was assigned
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appellate court case number 2-13-08. Appellate Rule 16 requires all briefs to
contain an assignment of error and an argument with respect to the assignment of
error.
Trial courts have full discretion to impose any sentence with the
statutory range. State v. Saldana, 3d Dist. No. 12–12–09, 2013–
Ohio–1122, ¶ 20. * * * However, the trial court must still
consider the purposes of felony sentencing as set forth in
State v. Walton
, 3d Dist. Nos. 16-12-13, 16-12-14,
(A) A court that sentences an offendеr for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines acсomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and othеrs from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
(3) The offender held a public office оr position of trust in the community, and the offense related to that office or position.
(4) The offender’s occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.
(5) The offender’s professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others.
(6) The offender’s relationship with the victim facilitated the offense.
(7) The offender committеd the offense for hire or as a part of an organized criminal activity.
(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
(9) If the offense is a violation of section 2919.25 or a viоlation of section 2903.11, 2903.12, 2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children.
(C) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant faсtors, as indicating that the offender’s conduct is less serious than conduct normally constituting the offense: (1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong provocation.
(3) In committing the offense, the offender did not cause or expect to cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender’s conduct, although the grounds are not enough to constitute a defense.
(D) The sentencing court shall consider all of the following that aрply regarding the offender, and any other relevant factors, as factors indicating that the offender is likely to commit future crimes.
(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing, under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or under post-release control pursuant to section 2967.28 or any other provision of the *8 Revised Code for an earlier offense or had been unfavorably terminated from post-release control for a prior offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised Code.
(2) The offender previously was adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has a history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has not responded favorably to sanctions previously imposed for criminal convictions.
(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offеnder has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
(E) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offendеr is not likely to commit future crimes:
(1) Prior to committing the offense, the offender had not been adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the оffender had led a law- abiding life for a significant number of years.
(4) The offense was committed under circumstances not likely to recur.
(5) The offender shows genuine remorse for the offense.
not properly consider the factors set forth in
The Court has considered the record, oral statements, any
Victim Impact Statement and Pre-Sentence Report prepared, as
well as the principles and purposes of sentencing under Ohio
Revised Code
Sentencing Entry, 2-3. Further review shows that the record supports the trial
court’s conclusion to impose the maximum sentence and to order it consecutive to
that in Appellate Case Number 2-13-07. A review of the record shows that none
of the factors in 2929.12(B) that sets forth that the offense is more serious than
others apply. There was no victim, there were no injuries, and Helmstetter did not
commit his offense for hire or as a result of his occupation. As to the factors in
recidivism, there are several factors which apply to Helmstetter. At the time
Helmstetter committed this offense, he was under community control sanctions for
possession of drugs and drug trafficking. Helmstetter has a prior juvenile record,
whiсh includes a theft charge, marijuana usage, and underage possession of
controlled substances. Helmstetter also violated the terms of his probation while a
juvenile by having positive marijuana drug screens on two occasions. As an
adult, Helmstetter has received prior treatment for his drug abuse on two separate
occasions, but continues to have a drug problem. Helmstetter admitted to abusing
alcohol, marijuana, prescription drugs, cocaine, and heroin. Although he has
exhibited a willingness to enter treatment, he has not exhibited a willingness to
follow through with the treatment. There were no applicable factors set forth in
In 2-13-07, Appeal Dismissed, In 2-13-08, Judgment Affirmed.
PRESTON, P.J. and ROGERS, J., concur.
/jlr