STATE OF OHIO, Plaintiff-Appellee, v. KEITH D. MIZICKO, Defendant-Appellant.
CASE NO. 2021-T-0017
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
Decided: January 31, 2022
[Cite as State v. Mizicko, 2022-Ohio-262.]
MARY JANE TRAPP, J.
Criminal Appeal from the Court of Common Pleas, Trial Court No. 2020 CR 00708. Judgment: Affirmed
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-Appellant).
OPINION
MARY JANE TRAPP, J.
{¶1} Appellant, Keith D. Mizicko (“Mr. Mizicko“), appeals the judgment of the Trumbull County Court of Common Pleas sentencing him to an aggregate prison term of 60 months following his guilty pleas to attempted unlawful sexual conduct with a minor and unlawful sexual conduct with a minor.
{¶2} Mr. Mizicko asserts one assignment of error, contending that the record does not support the trial court‘s imposition of a prison sentence instead of community
{¶3} After a review of the record and pertinent law, we find that Mr. Mizicko‘s assignment of error lacks merit. Pursuant to binding precedent from the Supreme Court of Ohio, this court is not permitted to independently reweigh the sentencing factors in
{¶4} Thus, we affirm the judgment of the Trumbull County Court of Common Pleas.
Substantive and Procedural History
{¶5} In December 2020, the Trumbull County Grand Jury indicted Mr. Mizicko on three counts of unlawful sexual conduct with a minor, felonies of the third degree, in violation of
{¶6} Mr. Mizicko subsequently entered written and oral pleas of guilty to amended count one, attempted unlawful sexual conduct with a minor, a felony of the fourth degree, in violation of
{¶7} In February 2021, the trial court held a plea hearing and engaged in a colloquy with Mr. Mizicko pursuant to
{¶8} “The State would have shown, with respect to Count One, that during September, 2020, the Defendant attempted to engage in fellatio with a 13-year old minor
{¶9} “As to Count Three, the State would have shown that on September 11th, 2020, the Defendant did engage in vaginal intercourse with the same minor female victim at the same location. The State would have offered the testimony of the minor female, investigating officers, an eyewitness to Count Three, BCI forensic scientists as well as medical personnel, and would have offered into evidence at trial the victim‘s rape kit, DNA connecting this Defendant to the crime that occurred on September 11th, as well as text messages between the victim and this Defendant.”
{¶10} The trial court accepted Mr. Mizicko‘s guilty pleas and found him guilty. It set the matter for sentencing and ordered the completion of a presentence investigation (“PSI“).
{¶11} In March 2021, the trial court held a sentencing hearing. The victim‘s father, Mr. Mizicko‘s defense counsel, and Mr. Mizicko himself each addressed the court. The trial court stated that it had considered the principles and purposes of felony sentencing, the relevant seriousness and recidivism factors, and the PSI. With respect to the PSI, the trial court commented as follows:
{¶12} “The Court does take note of the presentence investigation. And I can tell you, Mr. Mizicko, I‘ve seen some pretty bad presentence investigations, and yours is one of the worst I‘ve seen.
{¶14} The trial court sentenced Mr. Mizicko to prison terms of 18 months on amended count one and 60 months on count three, to be served concurrently, for an aggregate prison term of 60 months. The trial court subsequently filed a judgment entry memorializing Mr. Mizicko‘s sentences.
{¶15} Mr. Mizicko appealed and raises one assignment of error:
{¶16} “The trial court erred by sentencing appellant to a term of 60 months incarceration as the record does not support such a sentence.”
Standard of Review
{¶17} The standard of review for felony sentences is governed by
{¶18} “The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶19} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard of review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶21} “(b) That the sentence is otherwise contrary to law.”
{¶22} The Supreme Court of Ohio recently clarified in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, that contrary to the “dicta” in Marcum,
Law and Analysis
{¶23} Mr. Mizicko first contends that the record clearly and convincingly indicates that the trial court should have imposed sentences of community control sanctions. In essence, Mr. Mizicko disagrees with the trial court‘s application of
{¶24}
{¶25}
{¶26} Here, the trial court stated at the sentencing hearing and in its sentencing entry that it considered the principles and purposes of sentencing in
{¶27} Mr. Mizicko next contends that the standard of review for felony sentencing fails to provide meaningful appellate review and violates the due process rights of “the
{¶28} Mr. Mizicko suggests that he could not have raised the issue below because a trial court has no authority to mandate that a court of appeals employ a particular standard of review. We acknowledge that issues concerning appellate review were not implicated until after the trial court imposed Mr. Mizicko‘s sentences. However, Mr. Mizicko‘s constitutional argument is not clear.
{¶29} For instance, Mr. Mizicko does not challenge the constitutionality of
{¶30} In addition, Mr. Mizicko makes only general references to “due process” rights. He engages in no constitutional analysis and cites no relevant authority. See
{¶31} The Supreme Court of Ohio has stated that courts should avoid answering constitutional questions unless it is absolutely necessary to do so. See State v. Talty, 103 Ohio St.3d 177, 814 N.E.2d 1201, 2004-Ohio-4888, ¶ 9. Since Mr. Mizicko has failed to present a coherent constitutional argument, we decline to address it.
{¶32} Mr. Mizicko‘s sole assignment of error is without merit.
{¶33} For the foregoing reasons, the judgment the Trumbull County Court of Common Pleas is affirmed.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.