State v. LoffingState v. Loffing
Attorney for Plaintiff-Appellee
L. PATRICK MULLIGAN, Atty. Reg. No. 0016118, 28 North Wilkinson Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
DONOVAN, J.
{1} Kyle Loffing appeals from his conviction for pandering sexually oriented materials involving a minor following his guilty plea. The trial court imposed the maximum prison sentence, and Loffing contends that the sentence was contrary to law because the trial court showed bias against him by seeking to punish him for charges that were dismissed under a plea agreement. We find no error and affirm.
I. Factual and Procedural Background
{2} In April 2021, Loffing was indicted on 25 charges based on his possession of child pornography: Counts 1-5, pandering sexually oriented materials involving a minor, in violation of
{3} Under a plea agreement, Loffing pleaded guilty to Count 1, pandering sexually oriented materials involving a minor, a second-degree felony, and the state dismissed the remaining charges and agreed to remain silent at sentencing. In July 2021, the trial court sentenced Loffing to an indefinite term of eight to twelve years in prison, the maximum sentence for the offense. He was also classified as a Tier II sexual offender.
{4} Loffing appeals.
II. Analysis
{5} In his sole assignment of error, Loffing argues that his sentence must be
{6}
{7} Loffing argues that his sentence is contrary to law because the trial court improperly sought to punish him for the dismissed charges by imposing the maximum sentence. He argues that the record “belies the trial court‘s true purpose and objective in sentencing [him]: the trial court felt that the State‘s plea offer was too lenient and too generous.” As evidence, Loffing points to the court‘s comment at the sentencing hearing: “the prosecutor did dismiss all the remaining counts involving videos and because of that I‘m not sure why the Court should give you any further consideration.” (Sentencing Tr. 11.) In support of his argument, Loffing relies on State v. Fisher, 11th Dist. Lake No. 2002-L-020, 2003-Ohio-3499, and State v. Blake, 3d Dist. Union No. 14-03-33, 2004-Ohio-1952. Blake acknowledges that a “trial court may consider allegations that form the basis of charges dismissed pursuant to a plea agreement when sentencing a defendant.” Blake at 5. But the trial court‘s discretion is limited, and “cannot indicate a bias toward the defendant indicating that the trial court believes that the defendant is guilty of the charges which were dismissed.” Id., citing Fisher at ¶ 20-27. Fisher noted that the Ohio Supreme Court “has held that considering evidence relating to a past dismissed charge at the sentencing stage does not constitute reversible error.” Fisher at ¶ 24, citing State v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991).
{8} Neither of these cases applies here. As both cases recognize, a trial court
{9} We are not permitted to second guess the trial court‘s sentencing decision. “[A]n appellate court‘s determination that the record does not support a sentence does not equate to a determination that the sentence is ‘otherwise contrary to law[.]’ ” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 32. ”
{10} In sum, when reviewing a felony sentence that is imposed solely after considering the factors in
{11} Loffing‘s sentence is not contrary to law. The sentence is within the statutory range, and the judgment entry shows that the trial court considered the purposes and principles of felony sentencing in
{12} The sole assignment of error is overruled. The trial court‘s judgment is affirmed.
TUCKER, P.J. and EPLEY, J., concur.
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Ian A. Richardson
L. Patrick Mulligan
Hon. Douglas M. Rastatter