State of Ohio, Plaintiff-Appellee, v. Gage Allen Pitzer, Defendant-Appellant.
Case No. 19CA23
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
RELEASED 8/26/2020
[Cite as State v. Pitzer, 2020-Ohio-4322.]
Hess, J.
DECISION AND JUDGMENT ENTRY
Tyler E. Cantrell, Office of Young & Caldwell, LLC, West Union, Ohio, for appellant.
Anneka P. Collins, Highland County Prosecutor, and Adam J. King, Highland County Assistant Prosecutor, Hillsboro, Ohio, for appellee.
Hess, J.
{¶1} Gage Allen Pitzer appeals his conviction for felonious assault, abduction, and having a weapon while under disability, with a forfeiture specification and contends that the trial court abused its discretion in sentencing him to a total prison term of seven years. Pitzer and the state entered into a plea agreement, which included a jointly recommended total consecutive four and one-half years term of incarceration. However, the trial court considered certain factors, rejected the jointly recommended sentence, and determined that a total consecutive term of incarceration of seven years was appropriate. Pitzer argues that the trial court improperly relied upon the arresting officer‘s affidavit when it increased the total prison term. We conclude that the trial court‘s consideration of the affidavit was not improper, the sentence is not clearly and convincingly contrary to law, and Pitzer has failed to demonstrate by clear and convincing evidence that the
I. PROCEDURAL HISTORY
{¶2} In September 2019, the Highland County Grand Jury indicted Pitzer on one count of felonious assault in violation of
{¶3} At the sentencing hearing, the trial court determined that a number of considerations made the felonious assault and weapon offenses particularly disturbing: Pitzer‘s five-year-old son was present during the incident, Pitzer used a weapon to threaten members of the public who had telephoned 9-1-1, and there was physical harm to Pitzer‘s wife‘s head and face. As a result, the trial court sentenced Pitzer to four years
II. ASSIGNMENT OF ERROR
{¶4} Pitzer assigns the following error for our review:
- The Court abused its discretion in sentencing the Defendant[.]
III. LAW AND ANALYSIS
{¶5} Pitzer does not challenge the consecutive aspect of his sentence. He and the state jointly recommended that the prison terms on each individual count run consecutively and the trial court ran his sentences consecutively. Rather Pitzer challenges the length of a nonmaximum sentence for the single counts of felonious assault and weapons under disability because the trial court imposed longer terms than jointly recommended on those two counts. Thus, this challenge requires an analysis used in Marcum, infra, not the consecutive sentence review used in State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 15-17.
A. Standard of Review
{¶6} When reviewing felony sentences, appellate courts must apply the standard of review set forth in
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶7} Although
{¶8} “Once the trial court considers
B. Pitzer‘s Sentence is Supported by the Record and Is Not Contrary to Law
{¶9} “‘[A] sentence is generally not contrary to law if the trial court considered the
{¶10} In its judgment entry, the trial court stated that it considered the
{¶11} Pitzer argues that the trial court relied on information in the arresting officer‘s affidavit which “was not in alliance with the facts presented” by the state. He also argues that the seriousness and recidivism factors under
{¶12} The Supreme Court of Ohio summarized the applicability of
In Ohio, two statutory sections serve as a general guide for every sentencing. First,
R.C. 2929.11(A) provides that the overriding purposes of felony sentencing “are to protect the public from future crime by the offender and others and to punish the offender.” To achieve these purposes, the trial court “shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution.” Id. The sentence must be “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.”R.C. 2929.11(B) . * * *Second,
R.C. 2929.12 specifically provides that in exercising its discretion, a trial court must consider certain factors that make the offense more or less serious and that indicate whether the offender is more or less likely tocommit future offenses. * * * [A]n offender‘s conduct is considered less serious when there are “substantial grounds to mitigate the offender‘s conduct, although the grounds are not enough to constitute a defense.” R.C. 2929.12(C)(4) .R.C. 2929.12(C) and (E) also permit a trial court to consider “any other relevant factors” to determine that an offense is less serious or that an offender is less likely to recidivate.
State v. Day at ¶ 15, quoting State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 17-18.
{¶13} Here the trial court‘s judgment entry stated that it considered both the principles and purposes of sentencing under
Well, Mr. Pitzer, this case is disturbing. I‘m taking into consideration the fact that you have admitted your guilt and avoided placing your wife and others through the rigors of a trial.
I also note that it‘s your first felony offense as an adult. But, unfortunately, for your initiation you chose some real serious offenses.
There are several aggravating factors here, in my judgment: The fact that your son was present. The officer indicated that the weapon appeared to have been jammed, and it appeared to have been caused by a double-feed, meaning that more likely it was caused by repeatedly trying to fire the weapon. * * *
I also note that one of the people that called 9-1-1 was a witness who said that he had been threatened with a weapon as well. Whether you intended to do that or not, obviously it would have scared somebody like that; so, there were people in the public that were involved.
And then this whole thing took place with your child being in the room, or the house.
There were some efforts to harm your wife. The fact that she wasn‘t hurt badly isn‘t the point. The point is that you were aggressive toward her; and apparently bloodied her nose * * * it appeared she had been struck about the head and the scalp. * * *
But given that situation, uh, the Court is of the opinion that a two (2) year sentence for the felonious assault is not sufficient.
{¶14} The trial court also found that the sentences should be served
[T]he offenses * * * were of so great or unusual harm caused, not just to the victim, but to the public in general, that no one prison term would adequately reflect the seriousness of your conduct.
And, given the fact that you‘ve had a previous conviction in Juvenile Court for an assault on a police officer; that your history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crime.
{¶15} The trial court considered the arresting officer‘s affidavit in making its sentencing decision. Pitzer argues that the trial court abused its discretion in considering the arresting officer‘s affidavit because some of the details in it differed from the prosecutor‘s statements made at the sentencing hearing and it included information about criminal acts the state did not pursue. However, Pitzer cites no legal authority for his argument. The state contends that “it was obviously proper” for the trial court to consider the information in the affidavit but the state cites no legal authority for its argument.
{¶16} At the sentencing hearing, the trial court is permitted to take into consideration defense counsel‘s statements, defendant‘s statement, prosecutor‘s statement, the victim‘s or victim‘s representative‘s statement, any PSI report that may have been ordered, and any information relevant to the imposition of the sentence presented by any other persons. See
As recently as 2008, in State v. Beaver, 4th Dist. Washington No. 07CA62, 2008-Ohio-4513, ¶ 13, this court pointed to other courts that have held that at sentencing, it is permissible to consider evidence of other crimes. See also State v. Starkey, 7th Dist. Mahoning No. 06MA110, 2007-Ohio-6702 (courts have consistently held that evidence of other crimes, including crimes that never result in criminal charges being pursued, or criminal charges that are dismissed as a result of a plea bargain, may be considered at sentencing[)]; State v. Tolliver, 9th Dist. Wayne No. 03CA0017, 2003-Ohio-5050 (uncharged crimes in pre-sentence investigation report may be a factor at sentencing); United States v. Mennuti, 679 F.2d 1032, 1037 (2d Cir.1982) (similar through [sic.] uncharged crimes may be a factor at sentencing); United States v. Needles, 472 F.2d 652, 654-56 (2d Cir.1973[)] (a dropped count in an indictment may be considered in sentencing). We also find the Second District‘s decision in State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714 (2d Dist.) to be instructive: “[I]t is well established in Ohio law that the court may consider information beyond that strictly related to the conviction offense. For example, the statute governing the contents of a PSI report simply says, ‘[T]he officer making the report shall inquire into the circumstances of the offense and the criminal record, social history, and present condition of the defendant.’
R.C. 2951.03(A) . The statutory directive no doubt results in the sentencing court considering evidence that would be inadmissible at trial, State v. Davis (1978), 56 Ohio St.2d 51, 10 O.O.3d 87, 381 N.E.2d 641—like hearsay—and results in the court considering evidence entirely unrelated to the conviction offense.” Bowser at ¶ 15.
State v. Wagner, 4th Dist. Adams No. 16CA1033, 2017-Ohio-8653, ¶ 13.
{¶17} Pitzer‘s argument that the trial court should limit its review to only those facts set forth by the prosecutor at the sentencing hearing is similar to the argument made by the defendant in Huntley, infra. There the defendant argued that the trial court‘s sentencing review should be limited to the stipulated facts in the plea agreement. We rejected this argument and explained that trial courts may impose a “real offense” sentence:
In their treatise, Griffin and Katz discuss the concept of “real offense sentencing.” See Griffin & Katz, Ohio Felony Sentencing Law (2002 Ed.) at 545-46. There, Griffin and Katz state: “Notwithstanding that an offense has been plea bargained to a lesser offense, pre-sentence reports are traditionally written to contain all facts in the police file. Likewise, judges have been accustomed to sentence an offender based on the judge‘s perception of the true facts even though such facts may be inconsistent with a plea bargain. * * * Notwithstanding the plea bargain the judge may sentence the offender within the statutory parameters of the plea bargained offense based upon what the record shows to have been the real facts of the offense. Thus, seriousness of the offense will generally be based upon the judge‘s perception of the real facts of what occurred, and the plea bargained offense will simply set a ceiling on what the judge can impose.” Under the concept of “real offense sentencing” a defendant receives the benefit of his plea when his sentence is within the statutory parameters of
the pled offense. Therefore, sentencing courts may consider the real facts behind a plea agreement when sentencing a defendant. A defendant‘s plea to a lesser charge is not a statutory factor under the felony sentencing guidelines. State v. Murphy, Meigs App. No. 00CA13, 2001-Ohio-2461. However, following a plea agreement, courts must look at the totality of the circumstances when determining the seriousness of an offender‘s conduct. Id.; State v. Coleman, Meigs App. No. 00CA10, 2001-Ohio-2436 citing State v. Garrard (1997), 124 Ohio App.3d 718, 722, 707 N.E.2d 546. See, also,
R.C. 2929.12(A) (stating that the sentencing court may consider “any other factors that are relevant to achieving” the purposes and principles of sentencing).Real offense sentencing allows sentencing courts to take into account the true facts of a case even though a plea bargain may result in a more lenient charge. (Emphasis sic.)
State v. Huntley, 4th Dist. Hocking No. 02CA15, 2002-Ohio-6806, ¶ 12-14. “Ohio courts have upheld trial courts’ reliance on the actual facts from the indictment ‘even if [the defendant] negotiated a plea at odds with the indicted elements.‘” (Brackets sic.) State v. Kimbrough, 1st Dist. Hamilton No. C-180295, 2019-Ohio-2561, ¶ 4, quoting State v. Mayor, 7th Dist. Mahoning No. 07 MA 177, 2008-Ohio-7011, ¶ 17; State v. Gore, 10th Dist. Franklin No. 15AP-686, 2016-Ohio-7667, ¶ 12-13 (discussing “real-offense” sentencing). “Criminal defendants must accordingly proceed with eyes wide open to this possibility when they engage in the plea exercise.” Kimbrough at ¶ 4.
{¶18} The trial court‘s consideration of the arresting officer‘s affidavit was entirely proper and is the type of information a trial court considers when imposing a sentence. We find no error or abuse of discretion.
{¶19} Although Pitzer disagrees with the trial court‘s analysis and its balancing of the seriousness and recidivism factors in
{¶20} Pitzer has failed to meet his burden to establish that his prison sentence was clearly and convincingly not supported by the record. “Simply because the court did not balance the factors in the manner appellant desires does not mean that the court failed to consider them, or that clear and convincing evidence shows that the court‘s findings are not supported by the record.” State v. Butcher, 4th Dist. Athens No. 15CA33, 2017-Ohio-1544, ¶ 87. After reviewing the record, we find no clear and convincing evidence that the court erred in balancing the factors in
IV. CONCLUSION
{¶21} We overrule Pitzer‘s assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the HIGHLAND COUNTY COURT OF COMMON PLEAS, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.