[Cite as State v. Cloutier, 2024-Ohio-2100.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : -vs- : : Case No. CT2023-0077 STEVEN CLOUTIER : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0390
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 30, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road By:JOHN CONNOR DEVER Thornville, OH 43076 Assistant Prosecutor 27 North Fifth St., Box 189 Zanesville, OH43702 Muskingum County, Case No. CT2023-0077 2
Gwin, J.
{¶1} Defendant-appellant Steven R. Cloutier [“Cloutier”] appeals the sentence
imposed after his negotiated guilty plea in the Muskingum County Court of Common
Pleas.
Facts and Procedural History
{¶2} The Muskingum County Grand Jury issued an indictment on June 15,
2023 charging Cloutier with,
Count 1: Aggravated Possession of Drugs (Methamphetamine), a
felony of the third degree in violation of R.C. 2925.11(A) /
2925.11(C)(1)(b); and
Count 2: Illegal Use or Possession of Drug Paraphernalia, a
misdemeanor of the fourth degree in violation of R.C. 2925.14(C)(1) /
2925.14 (F)(1)
{¶3} Cloutier filed a written Plea of Guilty on August 17, 2023. On that date, the
trial judge conducted a Change of Plea hearing. Cloutier pled guilty as charged to the
indictment. In exchange, the state agreed to a jointly recommended sentence of eighteen
months in prison with the possibility of judicial release after twelve months.
{¶4} Defense counsel asked the trial judge to waive the preparation of a pre-
sentence investigation report (PSI) and proceed straight to sentencing. Plea T., Aug. 17,
2023 at 12. After hearing the state’s recitation of Cloutier’s criminal background, the trial
judge stated that he needed more information. Id. at 14. The trial judge deferred
sentencing and ordered a PSI be prepared. Id. Muskingum County, Case No. CT2023-0077 3
{¶5} Sentencing took place on October 4, 2023. Defense counsel mitigated that
Cloutier was fifty-eight years old and had suffered from addiction most of his adult life.
Sent. T., Oct. 4, 2003 at 5. Additionally, during his addiction he had no desire to get clean
until the recent passing of his fiancé, which caused him to commit himself to getting sober.
Id. at 5-6. Further, defense counsel noted that although Cloutier had a significant
misdemeanor record, most of the convictions occurred over seven years ago. Id. at 5.
{¶6} The trial judge noted that Cloutier had somewhere around thirty past
misdemeanor convictions out of various states. Sent. T., Oct. 4, 2023 at 8. The trial court
declined to follow the joint recommendation and sentenced Cloutier to an aggregate
sentence of thirty months and a mandatory fine of $5,000.00.
Assignment of Error
{¶7} Cloutier raises one Assignment of Error,
{¶8} “I. WAS THE TRIAL COURT'S SENTENCE ON COUNT 1 IN
CONTRAVENTION OF THE SENTENCING GUIDELINES AND PRINCIPLES SET
FORTH IN R.C. §2929.11 AND §2929.12?”
I.
{¶9} Cloutier first argues that because the trial court did not accept the jointly
recommended sentence, the sentence does not comport with the purposes and principles
of felony sentencing as required by R.C. 2929.11. He further contends the trial court failed
to consider the seriousness and recidivism sentencing factors set forth in R.C. 2929.12
when imposing a thirty-month prison sentence. Muskingum County, Case No. CT2023-0077 4
Standard of Appellate Review
{¶10} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to
review the entire trial-court record, including any oral or written statements and
presentence-investigation reports. R.C. 2953.08(F)(1) through (4). Our standard of review
is de novo. State v. Gwynne, 2019-Ohio-4761, ¶ 27. 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 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. See, State v. Bonnell, 2014-Ohio-3177, ¶28.
Issue for Appellate Review: Whether Cloutier’s sentence was imposed based
on impermissible considerations—i.e., considerations that fall outside those that are
contained in R.C. 2929.11 and 2929.12.
{¶11} Although a court imposing a felony sentence must consider the purposes of
felony sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12,
“neither R.C. 2929.11 nor 2929.12 requires [the] court to make any specific factual
findings on the record.” Id. at ¶ 20, citing State v. Wilson, 2011-Ohio-2669, ¶ 31, and
State v. Arnett, 88 Ohio St.3d 208, 215 (2000). The Ohio Supreme Court reviewed the
issue of “whether a sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an
appellate court finds that the record does not support a sentence with respect to R.C.
2929.11 and 2929.12 in State v. Jones, 2020-Ohio-6729. The Court found that 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. Jones, ¶39. The Ohio Supreme Court further explained in State v. Muskingum County, Case No. CT2023-0077 5
Toles, 2021-Ohio-3531, ¶10, that “R.C. 2953.08, as amended, precludes second-
guessing a sentence imposed by the trial court based on its weighing of the
considerations in R.C. 2929.11 and 2929.12.”
{¶12} Cloutier argues that, because the trial judge did not affirmatively mention
the factors on the record, it must be presumed that he did not consider them. However, a
trial court’s silence regarding the purposes of felony sentencing and/or the seriousness
and recidivism factors is not sufficient to affirmatively demonstrate that the court did not
comply with the statutes. State v. Adams, 37 Ohio St.3d 295 (1988), paragraph three of
the syllabus. It is well-established that “consideration of the appropriate factors set forth
in R.C. 2929.11 can be presumed unless the defendant affirmatively shows to the
contrary.” State v. Clinton, 2017-Ohio-9423, ¶ 243. The burden is on the defendant to
come forward with evidence to rebut the presumption that the trial court considered the
sentencing criteria. State v. Cyrus, 63 Ohio St.3d 164,166 (1992). Cloutier has not done
so in this case.
{¶13} The record establishes that the trial judge reviewed the pre-sentence
investigation report, and listen to the arguments of the prosecution and defense counsel.
The trial judge clearly considered the need for incapacitating Cloutier and protecting the
public from future crime, as well as determining that Cloutier’s over thirty prior convictions
demonstrates that Cloutier has made no attempt to rehabilitate himself.
{¶14} Furthermore, the trial judge was not bound to impose the jointly
recommended sentence in this case. A trial court does not err by imposing a sentence
greater than the sentence agreed to by the parties when “it forewarns the defendant of
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[Cite as State v. Cloutier, 2024-Ohio-2100.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : -vs- : : Case No. CT2023-0077 STEVEN CLOUTIER : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0390
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 30, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road By:JOHN CONNOR DEVER Thornville, OH 43076 Assistant Prosecutor 27 North Fifth St., Box 189 Zanesville, OH43702 Muskingum County, Case No. CT2023-0077 2
Gwin, J.
{¶1} Defendant-appellant Steven R. Cloutier [“Cloutier”] appeals the sentence
imposed after his negotiated guilty plea in the Muskingum County Court of Common
Pleas.
Facts and Procedural History
{¶2} The Muskingum County Grand Jury issued an indictment on June 15,
2023 charging Cloutier with,
Count 1: Aggravated Possession of Drugs (Methamphetamine), a
felony of the third degree in violation of R.C. 2925.11(A) /
2925.11(C)(1)(b); and
Count 2: Illegal Use or Possession of Drug Paraphernalia, a
misdemeanor of the fourth degree in violation of R.C. 2925.14(C)(1) /
2925.14 (F)(1)
{¶3} Cloutier filed a written Plea of Guilty on August 17, 2023. On that date, the
trial judge conducted a Change of Plea hearing. Cloutier pled guilty as charged to the
indictment. In exchange, the state agreed to a jointly recommended sentence of eighteen
months in prison with the possibility of judicial release after twelve months.
{¶4} Defense counsel asked the trial judge to waive the preparation of a pre-
sentence investigation report (PSI) and proceed straight to sentencing. Plea T., Aug. 17,
2023 at 12. After hearing the state’s recitation of Cloutier’s criminal background, the trial
judge stated that he needed more information. Id. at 14. The trial judge deferred
sentencing and ordered a PSI be prepared. Id. Muskingum County, Case No. CT2023-0077 3
{¶5} Sentencing took place on October 4, 2023. Defense counsel mitigated that
Cloutier was fifty-eight years old and had suffered from addiction most of his adult life.
Sent. T., Oct. 4, 2003 at 5. Additionally, during his addiction he had no desire to get clean
until the recent passing of his fiancé, which caused him to commit himself to getting sober.
Id. at 5-6. Further, defense counsel noted that although Cloutier had a significant
misdemeanor record, most of the convictions occurred over seven years ago. Id. at 5.
{¶6} The trial judge noted that Cloutier had somewhere around thirty past
misdemeanor convictions out of various states. Sent. T., Oct. 4, 2023 at 8. The trial court
declined to follow the joint recommendation and sentenced Cloutier to an aggregate
sentence of thirty months and a mandatory fine of $5,000.00.
Assignment of Error
{¶7} Cloutier raises one Assignment of Error,
{¶8} “I. WAS THE TRIAL COURT'S SENTENCE ON COUNT 1 IN
CONTRAVENTION OF THE SENTENCING GUIDELINES AND PRINCIPLES SET
FORTH IN R.C. §2929.11 AND §2929.12?”
I.
{¶9} Cloutier first argues that because the trial court did not accept the jointly
recommended sentence, the sentence does not comport with the purposes and principles
of felony sentencing as required by R.C. 2929.11. He further contends the trial court failed
to consider the seriousness and recidivism sentencing factors set forth in R.C. 2929.12
when imposing a thirty-month prison sentence. Muskingum County, Case No. CT2023-0077 4
Standard of Appellate Review
{¶10} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to
review the entire trial-court record, including any oral or written statements and
presentence-investigation reports. R.C. 2953.08(F)(1) through (4). Our standard of review
is de novo. State v. Gwynne, 2019-Ohio-4761, ¶ 27. 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 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. See, State v. Bonnell, 2014-Ohio-3177, ¶28.
Issue for Appellate Review: Whether Cloutier’s sentence was imposed based
on impermissible considerations—i.e., considerations that fall outside those that are
contained in R.C. 2929.11 and 2929.12.
{¶11} Although a court imposing a felony sentence must consider the purposes of
felony sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12,
“neither R.C. 2929.11 nor 2929.12 requires [the] court to make any specific factual
findings on the record.” Id. at ¶ 20, citing State v. Wilson, 2011-Ohio-2669, ¶ 31, and
State v. Arnett, 88 Ohio St.3d 208, 215 (2000). The Ohio Supreme Court reviewed the
issue of “whether a sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an
appellate court finds that the record does not support a sentence with respect to R.C.
2929.11 and 2929.12 in State v. Jones, 2020-Ohio-6729. The Court found that 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. Jones, ¶39. The Ohio Supreme Court further explained in State v. Muskingum County, Case No. CT2023-0077 5
Toles, 2021-Ohio-3531, ¶10, that “R.C. 2953.08, as amended, precludes second-
guessing a sentence imposed by the trial court based on its weighing of the
considerations in R.C. 2929.11 and 2929.12.”
{¶12} Cloutier argues that, because the trial judge did not affirmatively mention
the factors on the record, it must be presumed that he did not consider them. However, a
trial court’s silence regarding the purposes of felony sentencing and/or the seriousness
and recidivism factors is not sufficient to affirmatively demonstrate that the court did not
comply with the statutes. State v. Adams, 37 Ohio St.3d 295 (1988), paragraph three of
the syllabus. It is well-established that “consideration of the appropriate factors set forth
in R.C. 2929.11 can be presumed unless the defendant affirmatively shows to the
contrary.” State v. Clinton, 2017-Ohio-9423, ¶ 243. The burden is on the defendant to
come forward with evidence to rebut the presumption that the trial court considered the
sentencing criteria. State v. Cyrus, 63 Ohio St.3d 164,166 (1992). Cloutier has not done
so in this case.
{¶13} The record establishes that the trial judge reviewed the pre-sentence
investigation report, and listen to the arguments of the prosecution and defense counsel.
The trial judge clearly considered the need for incapacitating Cloutier and protecting the
public from future crime, as well as determining that Cloutier’s over thirty prior convictions
demonstrates that Cloutier has made no attempt to rehabilitate himself.
{¶14} Furthermore, the trial judge was not bound to impose the jointly
recommended sentence in this case. A trial court does not err by imposing a sentence
greater than the sentence agreed to by the parties when “it forewarns the defendant of
the applicable penalties, including the possibility of imposing a greater sentence than that Muskingum County, Case No. CT2023-0077 6
recommended by the prosecutor.” State ex rel. Duran v. Kelsey, 2005-Ohio-3674, ¶ 6,
quoting State v. Buchanan, 2003-Ohio-4772, ¶ 13 (5th Dist.). Cloutier was informed
during the change of plea hearing that the trial judge was not bound by the jointly
recommended sentence and could impose up to a thirty-six-month sentence upon
Cloutier’s pleas. Plea T., Aug. 17, 2023 at 8 - 9.
{¶15} While the trial court did not mention R.C. 2929.11 or R.C. 2929.12
specifically during the sentencing hearing, the absence of evidence to rebut the
presumption that the trial court considered the sentencing criteria allows this Court to
presume that the trial court considered these mandatory statutory provisions. Our
presumption in this case is fortified by the judge’s sentencing entry, which clearly states
that the judge considered the “principles and purposes of sentencing under Ohio Revised
Code 2929.11 and its balance of seriousness and recidivism factors under Ohio Revised
Code 2929.12.”
{¶16} Upon review of the record in this case, we find that the record supports the
trial judge’s sentencing determination. We find that the trial judge’s sentencing on the
charges complies with applicable rules and sentencing statutes. The sentence was within
the statutory sentencing range. Cloutier has failed to prove that the trial court imposed
the sentence based on impermissible considerations—i.e., considerations that fall outside
those that are contained in R.C. 2929.11 and R.C. 2929.12. Thus, we find Cloutier’s
sentence is not contrary to law.
{¶17} Cloutier’s sole Assignment of Error is overruled. Muskingum County, Case No. CT2023-0077 7
{¶18} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, J.,
Delaney, P.J., and
Hoffman, J., concur