STATE OF OHIO v. MICHAEL SWITZER
No. 102175
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 23, 2015
2015-Ohio-2954
Blackmon, J., McCormack, P.J., and Laster Mays, J.
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-572441-A
BEFORE: Blackmon, J., McCormack, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: July 23, 2015
Kimberly K. Yoder Kimberly K. Yoder Company, L.P.A. 20325 Center Ridge Road Suite 133 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor By: Zachary Humphrey Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
{¶1} Appellant Michael Switzer (“Switzer“) appeals his sentence and assigns the following error for our review:
The trial court erred in imposing the maximum prison sentence upon the defendant.
{¶2} Having reviewed the record and pertinent law, we affirm Switzer‘s sentence. The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury indicted Switzer for failure to verify his address, a felony of the fourth degree, and failure to provide notice of change of address, a felony of the third degree. Both of these counts were related to Switzer‘s duty to register as a sex offender. Switzer entered a plea to the failure to verify his address. The remaining count for failing to provide notice of change of address was dismissed.
{¶4} Sentencing was continued in order for a presentence investigation report to be compiled. After receiving the report, the trial court conducted a hearing and sentenced Switzer to the maximum sentence of 18 months and imposed a $250 fine.
Maximum Sentence
{¶5} In his sole assigned error, Switzer contends that his 18-month sentence did not comply with the purposes and principles of sentencing set forth in
{¶6}
{¶7} A sentence is not clearly and convincingly contrary to law “where the trial court considers the purposes and principles of sentencing under
{¶8} Although the trial court has a mandatory duty to “consider” the statutory factors, the trial court is not required to explain its analysis of those factors in a given case. State v. Townsend, 8th Dist. Cuyahoga No. 99896, 2014-Ohio-924, ¶ 11-12. The trial court‘s statement that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under the sentencing statutes. State v. Kamleh, 8th Dist. Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 18.
{¶9} Switzer does not claim that the trial court failed to consider
{¶10}
{¶11} Switzer argues that his offense was a nonviolent fourth-degree felony and that a lesser sentence would accomplish the overriding purposes and principles of sentencing. However, in imposing the sentence, the trial court stressed that Switzer had
{¶12} A reviewing court cannot review the sentencing judge‘s exercise of its discretion as “[t]he appellate court‘s standard for review is not whether the sentencing court abused its discretion.”
{¶13} Switzer also contends his sentence was not consistent with sentences for similar crimes committed by similar offenders.
“Consistency, however, does not necessarily mean uniformity. Instead, consistency aims at similar sentences. Accordingly, consistency accepts divergence within a range of sentences and takes into consideration a trial court‘s discretion to weigh relevant statutory factors. [The task of an appellate court is to examine the available data, not to determine if the trial court has imposed a sentence that is in lockstep with others, but to
determine whether the sentence is so unusual as to be outside the mainstream of local judicial practice.] Although offenses may be similar, distinguishing factors may justify dissimilar sentences.”
Id. at ¶ 13, quoting State v. Marriott, 2d Dist. Clark No. 2008 CA 48, 2009-Ohio-2323, ¶ 37.
{¶14} Here, no evidence was presented regarding what sentence other offenders who committed similar crimes received or what was their likelihood of recidivism. Thus, there is no evidence that Switzer‘s sentence was outside “the mainstream of local judicial practice.” As we stated above, the fact that this was Switzer‘s fifth time for not complying with his notification duties as a sex offender, was the reason the trial court imposed the maximum sentence. Moreover, “[a] consistent sentence is not derived from a case-by-case comparison; rather, the trial court‘s proper application of the statutory sentencing guidelines ensures consistency.” State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228, ¶ 10 (10th Dist.). We have already determined that the trial court properly applied the statutory guidelines in imposing the sentence. Accordingly, Switzer‘s sole assigned error is overruled.
{¶15} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
PATRICIA ANN BLACKMON, JUDGE
TIM McCORMACK, P.J., and ANITA LASTER MAYS, J., CONCUR