[Cite as State v. Blosser, 2024-Ohio-173.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Andrew J. King, J. -vs- : : WILLIAM R. BLOSSER, JR. : Case No. CT2023-0060 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2023-0150
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 18, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN CONNOR DEVER CHRIS BRIGDON 27 North Fifth Street 8138 Somerset Road P.O. Box 189 Thornville, OH 43076 Zanesville, OH 43702 Muskingum County, Case No. CT2023-0060 2
King, J.
{¶ 1} Defendant-Appellant William R. Blosser, Jr. appeals the July 27, 2023
judgment of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is the
state of Ohio. We affirm the trial court.
Facts and Procedural History
{¶ 2} A recitation of the underlying facts is unnecessary for our resolution of this
appeal. On March 8, 2023, the Muskingum County Grand Jury returned an indictment
charging Blosser with one count of aggravated vehicular homicide, a felony of the second
degree, one count of aggravated vehicular homicide, a felony of the third degree, one
count of aggravated vehicular assault, a felony of the third degree, one count of vehicular
assault, a felony of the fourth degree, and three counts of operating a vehicle under the
influence of alcohol, a drug of abuse, or a combination of them, misdemeanors of the first
degree.
{¶ 3} Pursuant to plea negotiations with the state, Blosser agreed to enter pleas
of guilty to aggravated vehicular homicide, a felony of the second degree, and aggravated
vehicular assault, a felony of the third degree. In exchange, the state agreed to dismiss
the balance of the indictment, and further agreed it would not argue for a sentence of
greater than 10 years. The state further amended the aggravating circumstance for each
count to driving under suspension.
{¶ 4} On June 5, 2023, Blosser entered pleas of guilty. The trial court ordered a
presentence investigation and set the matter over for sentencing.
{¶ 5} Blosser appeared for sentencing on July 19, 2023. The trial court noted it
had reviewed the presentence investigation, Blosser's extensive prior record, the fact that Muskingum County, Case No. CT2023-0060 3
he was driving on a suspended license, and the fact that one person died and another
was seriously injured as a result of Blosser's actions. The state noted, that while it was
within the error rate of the per se level pursuant to R.C 4511.19(A)(1)(A), Blosser also
had methamphetamine in his system at the time of the offense.
{¶ 6} The trial court sentenced Blosser to a mandatory indefinite term of
incarceration of 6-9 years for aggravated vehicular homicide, and 4 years for aggravated
vehicular assault. Blosser was ordered to serve the sentences consecutively.
{¶ 7} Blosser filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error as follows:
I
{¶ 8} "THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH THE PRINCIPLES SET FORTH O.R.C. §2929.11 AND FACTORS TO BE
CONSIDERED IN O.R.C. §2929.12."
{¶ 9} In his sole assignment of error, Blosser argues the trial court failed to
adequately consider the principles and purposes of sentencing as contained in R.C.
2929.11 and 2929.12. We disagree.
Applicable Law
{¶ 10} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,
citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record Muskingum County, Case No. CT2023-0060 4
does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
{¶ 11} Clear and convincing evidence is that evidence "which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established."
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. "Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross, 161
Ohio St. at 477, 120 N.E.2d 118.
{¶ 12} The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences. See State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus.
However, the trial court must comply with all applicable rules and statutes, including R.C.
2929.11 and R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846
N.E.2d 1, ¶ 37. A sentence is not contrary to law when it is within the authorized statutory
range and the trial court states that it has considered the principles and purposes of
sentencing and the seriousness and recidivism factors. State v. Smith, 2d Dist.
Montgomery No. 26307, 2016-Ohio-1269, ¶ 25.
{¶ 13} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶
39, the Supreme Court of Ohio found R.C. 2953.08(G)(2)(b) "does not provide a basis for
an appellate court to modify or vacate a sentence based on its view that the sentence is
not supported by the record under R.C. 2929.11 and 2929.12." And further that "[n]othing Muskingum County, Case No. CT2023-0060 5
in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in
the record and substitute its judgment for that of the trial court concerning the sentence
that best reflects compliance with R.C. 2929.11 and 2929.12." Id. at 42.
Blosser's Arguments
{¶ 14} Blosser's sentences are within the statutory range and he does not argue
otherwise. Instead he asks this court to independently weigh the evidence in the record
concerning the trial court's compliance with R.C. 2929.11 and 2929.12 considerations
and substitute our judgment for that of the trial court. We have no authority to do so.
Blosser also argues, without evidence, that the trial court failed to consider all of the
sentencing and recidivism factors contained in R.C. 2929.12.
{¶ 15} The evidence in the record supports the trial court's sentencing decision.
The trial court noted it had reviewed the presentence investigation, discussed Blosser's
extensive prior record which includes 5 prior felonies and 12 prior misdemeanors, the fact
that he was driving on a suspended license when this incident occurred, and that his
actions killed one person and seriously injured another.
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[Cite as State v. Blosser, 2024-Ohio-173.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Andrew J. King, J. -vs- : : WILLIAM R. BLOSSER, JR. : Case No. CT2023-0060 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2023-0150
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 18, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN CONNOR DEVER CHRIS BRIGDON 27 North Fifth Street 8138 Somerset Road P.O. Box 189 Thornville, OH 43076 Zanesville, OH 43702 Muskingum County, Case No. CT2023-0060 2
King, J.
{¶ 1} Defendant-Appellant William R. Blosser, Jr. appeals the July 27, 2023
judgment of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is the
state of Ohio. We affirm the trial court.
Facts and Procedural History
{¶ 2} A recitation of the underlying facts is unnecessary for our resolution of this
appeal. On March 8, 2023, the Muskingum County Grand Jury returned an indictment
charging Blosser with one count of aggravated vehicular homicide, a felony of the second
degree, one count of aggravated vehicular homicide, a felony of the third degree, one
count of aggravated vehicular assault, a felony of the third degree, one count of vehicular
assault, a felony of the fourth degree, and three counts of operating a vehicle under the
influence of alcohol, a drug of abuse, or a combination of them, misdemeanors of the first
degree.
{¶ 3} Pursuant to plea negotiations with the state, Blosser agreed to enter pleas
of guilty to aggravated vehicular homicide, a felony of the second degree, and aggravated
vehicular assault, a felony of the third degree. In exchange, the state agreed to dismiss
the balance of the indictment, and further agreed it would not argue for a sentence of
greater than 10 years. The state further amended the aggravating circumstance for each
count to driving under suspension.
{¶ 4} On June 5, 2023, Blosser entered pleas of guilty. The trial court ordered a
presentence investigation and set the matter over for sentencing.
{¶ 5} Blosser appeared for sentencing on July 19, 2023. The trial court noted it
had reviewed the presentence investigation, Blosser's extensive prior record, the fact that Muskingum County, Case No. CT2023-0060 3
he was driving on a suspended license, and the fact that one person died and another
was seriously injured as a result of Blosser's actions. The state noted, that while it was
within the error rate of the per se level pursuant to R.C 4511.19(A)(1)(A), Blosser also
had methamphetamine in his system at the time of the offense.
{¶ 6} The trial court sentenced Blosser to a mandatory indefinite term of
incarceration of 6-9 years for aggravated vehicular homicide, and 4 years for aggravated
vehicular assault. Blosser was ordered to serve the sentences consecutively.
{¶ 7} Blosser filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error as follows:
I
{¶ 8} "THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH THE PRINCIPLES SET FORTH O.R.C. §2929.11 AND FACTORS TO BE
CONSIDERED IN O.R.C. §2929.12."
{¶ 9} In his sole assignment of error, Blosser argues the trial court failed to
adequately consider the principles and purposes of sentencing as contained in R.C.
2929.11 and 2929.12. We disagree.
Applicable Law
{¶ 10} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,
citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record Muskingum County, Case No. CT2023-0060 4
does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
{¶ 11} Clear and convincing evidence is that evidence "which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established."
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. "Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross, 161
Ohio St. at 477, 120 N.E.2d 118.
{¶ 12} The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences. See State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus.
However, the trial court must comply with all applicable rules and statutes, including R.C.
2929.11 and R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846
N.E.2d 1, ¶ 37. A sentence is not contrary to law when it is within the authorized statutory
range and the trial court states that it has considered the principles and purposes of
sentencing and the seriousness and recidivism factors. State v. Smith, 2d Dist.
Montgomery No. 26307, 2016-Ohio-1269, ¶ 25.
{¶ 13} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶
39, the Supreme Court of Ohio found R.C. 2953.08(G)(2)(b) "does not provide a basis for
an appellate court to modify or vacate a sentence based on its view that the sentence is
not supported by the record under R.C. 2929.11 and 2929.12." And further that "[n]othing Muskingum County, Case No. CT2023-0060 5
in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in
the record and substitute its judgment for that of the trial court concerning the sentence
that best reflects compliance with R.C. 2929.11 and 2929.12." Id. at 42.
Blosser's Arguments
{¶ 14} Blosser's sentences are within the statutory range and he does not argue
otherwise. Instead he asks this court to independently weigh the evidence in the record
concerning the trial court's compliance with R.C. 2929.11 and 2929.12 considerations
and substitute our judgment for that of the trial court. We have no authority to do so.
Blosser also argues, without evidence, that the trial court failed to consider all of the
sentencing and recidivism factors contained in R.C. 2929.12.
{¶ 15} The evidence in the record supports the trial court's sentencing decision.
The trial court noted it had reviewed the presentence investigation, discussed Blosser's
extensive prior record which includes 5 prior felonies and 12 prior misdemeanors, the fact
that he was driving on a suspended license when this incident occurred, and that his
actions killed one person and seriously injured another. Transcript of sentencing, July 19,
2023, 6-7. While Blosser argues the trial court did not discuss certain factors contained
in R.C. 2929.11 and 2929.12, R.C. 2929.11 does not require the trial court to make any
specific findings. Likewise, R.C. 2929.12 does not require the trial court to "use specific
language or make specific findings on the record in order to evince the requisite
consideration of the applicable seriousness and recidivism factors." State v. Arnett, 88
Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).
{¶ 16} Moreover, even if the trial court had been completely silent on the record as
to the R.C. 2929.11 and R.C. 2929.12 factors, this court has previously found: Muskingum County, Case No. CT2023-0060 6
[W]hen the transcript of "the sentencing hearing is silent as to
whether the trial court considered the factors in R.C. 2929.11 and
2929.12" a presumption arises "that a trial court considered the
factors contained in R.C. 2929.12." The statement in the sentencing
entry that those factors were considered provides support for the
presumption. State v. Hannah, 5th Dist. Richland No. 15-CA-1, 2015-
Ohio-4438, ¶ 13. Accord State v. Tenney, 11th Dist. Ashtabula No.
2009-A-0015, 2010-Ohio-6248, 2010 WL 5289110, ¶ 14. As this
court explained in State v. Robinson, 5th Dist. Muskingum No.
CT2012-0005, 2013-Ohio-2893, ¶ 19-20: "Where the record lacks
sufficient data to justify the sentence, the court may well abuse its
discretion by imposing that sentence without a suitable explanation.
Where the record adequately justifies the sentence imposed, the
court need not recite its reasons." The Supreme Court has made it
clear that as long as the record demonstrates the factors were
considered, the sentence is not infirm. State v. Duktig, 8th Dist.
Cuyahoga No. 79517, 2002-Ohio-3770, ¶ 8. This court has
confirmed that "consideration of the factors is presumed unless the
defendant affirmatively shows otherwise." (Citations omitted.) State
v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-Ohio-
3125, ¶ 18. Muskingum County, Case No. CT2023-0060 7
{¶ 17} State v. Dale, 5th Dist. No. CT2022-0007, 2022-Ohio-4074 ¶ 12.
{¶ 18} We find the record adequately justifies Blosser's sentence. The judgment
entry in this matter indicates the trial court considered the appropriate factors, and Blosser
has not affirmatively demonstrated otherwise.
{¶ 19} For the foregoing reasons, Blosser's assignment of error is without merit
and is overruled.
{¶ 20} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By King, J.,
Delaney, P.J. and
Gwin, J. concur.