State v. Pettorini

2021 Ohio 1512

• Court: Ohio Court of Appeals
• Decided: April 29, 2021
• Docket: 2020 CA 0057 & 2020 CA 0058
• Status: Published

Opinion

[Cite as State v. Pettorini, 2021-Ohio-1512.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. William B. Hoffman, J. -vs- : : JOHN PETTORINI, : Case Nos. 2020 CA 00057 : 2020 CA 00058 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case nos. 19 CR 839 & 20 CR 205

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 29, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES A. ANZELMO Licking County Prosecutor Anzelmo Law 446 Howland Drive By: PAULA M. SAWYERS Gahanna, ohio 43230 Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 2020 CA 00057, 2020 CA 00058 2

Baldwin, J.

{¶1} Defendant-appellant John Pettorini appeals his sentence from the Licking

County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 20, 2019, Pataskala Police were dispatched to take a report after

a two car automobile collision. Appellant had driven left of center and collided with another

vehicle. When the police arrived, they found appellant unconscious. Appellant was

revived with Narcan. Suspected drugs were found on appellant’s lap and on the road by

appellant’s car door. The drugs were later confirmed to be fentanyl.

{¶3} On October 17, 2019, appellant was indicted in Case No. 19 CR 839 on one

count of aggravated possession of controlled substances (fentanyl) in violation of R.C.

2925.11(A)(C)(1)(a), a felony of the fifth degree. At his arraignment on November 12,

2019, appellant entered a plea of not guilty to the charge.

{¶4} On May 1, 2020, appellant was stopped for a marked lanes violation. An

officer requested appellant’s driver’s license. Appellant claimed not to have a license with

him and fled. The pursuit by police lasted approximately 10 minutes with speeds up to 90

miles per hour in a 35 mile per hour zone. The total distance of the pursuit was

approximately 5 miles during which appellant ran numerous stop signs and traffic lights.

Appellant almost hit one vehicle and passed dangerously around several other vehicles.

Appellant then pulled into a field and ran on foot and was arrested. Used syringes were

found in his vehicle.

{¶5} On May 14, 2020, appellant was indicted in Case No. 20 CR 205 on one

count of failure to comply with order or signal of police officer in violation of R.C. Licking County, Case No. 2020 CA 00057, 2020 CA 00058 3

2921.331(B), a felony of the third degree, and one count of possessing drug abuse

instruments in violation of R.C. 2925.12(A), a misdemeanor of the first degree. On May

19, 2020, appellant entered a plea of not guilty to the charges.

{¶6} Appellant, on June 11, 2020, was indicted via a superseding indictment in

Case No. 19 CR 839 on one count of aggravated possession of controlled substances

(fentanyl) in violation of R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree, and one

count of failure to appear1 in violation of R.C. 2937.29 and R.C. 2937.99(B), a felony of

the fourth degree. On June 16, 2020, appellant entered a plea of not guilty to the charges.

{¶7} On September 8, 2020, appellee filed a Motion to Dismiss the charge of

failure to appear in Case No.19 CR 839. Pursuant to an Entry filed on the same date, the

Motion to Dismiss was granted.

{¶8} On September 8, 2020, appellant entered a plea of guilty to both counts in

Case No. 20 CR 205 and to the remaining count in Case No. 19 CR 839. As memorialized

in Judgment Entries filed in both cases on September 8, 2020, appellant was sentenced

to an aggregate sentence in Case No. 20 CR 205 of three years in prison and, in Case

No. 19 CR 839, was sentenced to one year in prison. The trial court ordered that the

sentences be served consecutively for an aggregate sentence of four years in prison.

{¶9} Appellant now raises the following assignments of error on appeal:

{¶10} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED PETTORINI TO

PRISON, INSTEAD OF COMMUNITY CONTROL, IN VIOLATION OF HIS DUE

PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

1 After appellant failed to appear for a pretrial conference, a capias was issued for his arrest. Licking County, Case No. 2020 CA 00057, 2020 CA 00058 4

UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE

OHIO CONSTITUTION.”

{¶11} “II. THE TRIAL COURT UNLAWFULLY ORDERED PETTORINI TO

SERVE CONSECUTIVE SENTENCES FOR HIS OFFENSES, IN VIOLATION OF HIS

RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE 1 OF THE

OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.”

I, II

{¶12} Appellant, in his first assignment of error, argues that the trial court erred in

sentencing him to prison instead of community control. In his second assignment of error,

appellant contends that the trial court erred in sentencing him to consecutive sentences.

We disagree.

{¶13} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. 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.

{¶14} Nothing in R.C. 2953.08(G)(2) permits this court to independently weigh the

evidence in the record and substitute its own judgment for that of the trial court to Licking County, Case No. 2020 CA 00057, 2020 CA 00058 5

determine a sentence that best reflects compliance with R.C. 2929.11 and R.C.

2929.12. State v. Jones, ––– N.E.3d ––––, 2020-Ohio-6729 ¶ 42.

{¶15} This Court is, therefore, without authority to disturb appellant’s sentence

absent a finding by clear and convincing evidence that the record does not support the

trial court's findings under R.C. 2929.11 and R.C. 2929.12. Instead we may only

determine if the sentence is contrary to law.

{¶16} A sentence is not clearly and convincingly contrary to law where the trial

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.” State v. Dinka, 12th Dist. Warren Nos. CA2019-

03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.

{¶17} Appellant does not argue that his sentence was not within the permissible

statutory range. Rather, appellant argues that he should have been sentenced to

community control because he was remorseful, his conduct was not part of organized,

extensive drug trafficking, and he committed the offenses due to his relapse in his drug

addiction.

{¶18} However, we find that the trial court did not err in sentencing appellant to

prison rather than community control. As noted by the trial court, appellant was on

supervision at the time of the first offense, and at the time of the second offense, was

under indictment and a warrant had been issued for his arrest for failure to appear for the

first charge. The trial court noted that the first offense involved appellant operating a motor

vehicle while under the influence of drugs. Appellant’s offenses occurred on different

dates and involved drug activity. The trial court indicated that it had considered the Licking County, Case No. 2020 CA 00057, 2020 CA 00058 6

principles and purposes of sentencing under R.C. 2929.11 and the seriousness and

recidivism factors under R.C. 2929.12. The trial court found that appellant was not

amenable to community control. Moreover, appellant’s failure to appear for trial in Case

No. 19 CR 839 qualifies as one of the conditions for imposing a prison sentence on

felonies of the 4th and 5th degrees under R.C. 2929.13(B)(1)(b).

{¶19} Appellant also argues that the trial court erred in imposing consecutive

sentences.

{¶20} R.C. 2929.14(C)(4) governs consecutive sentences and states the

following:

{¶21} (4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public, and if the court also finds any of the following:

{¶22} (a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

{¶23} (b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses Licking County, Case No. 2020 CA 00057, 2020 CA 00058 7

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

{¶24} (c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

{¶25} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, syllabus. “[A] word-for-word recitation of the language of the statute is not

required, and as long as the reviewing court can discern that the trial court engaged in

the correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.” Id. at ¶ 29.

{¶26} In the case sub judice, the trial court found that consecutive sentences were

necessary to protect the public or to punish the offender and were not disproportionate to

the seriousness of the crimes that appellant committed and the danger that appellant

posed to the public. The trial court found that appellant had committed one or more of the

multiple offenses while awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under

post-release control for a prior offense. As is stated above, the trial court noted that

appellant was on supervision at the time of the first offense, and at the time of the second

offense, was under indictment and a warrant had been issued for his arrest for failure to

appear for the first charge. The trial court noted that the first offense involved appellant Licking County, Case No. 2020 CA 00057, 2020 CA 00058 8

operating a motor vehicle while under the influence of drugs. Both cases involved drug

activity.

{¶27} The trial court also reviewed appellant’s presentence investigation report

(PSI). The PSI revealed that appellant had an extensive history of drug use and had

served two separate prison terms for burglary. While in prison, appellant was charged

with a third burglary but was eventually convicted of a lesser offense and was given

probation. However, appellant relapsed and was charged with possession of drugs.

Appellant also has convictions for drug abuse and drug paraphernalia.

{¶28} Based on the foregoing, we find that the trial court did not err in sentencing

appellant to prison and imposing consecutive sentences.

{¶29} Appellant’s two assignments of error are, therefore, overruled. Licking County, Case No. 2020 CA 00057, 2020 CA 00058 9

{¶30} Accordingly, the judgment of the Licking County Court of Common Pleas is

affirmed.

By: Baldwin, P.J.

Gwin, J. and

Hoffman, J. concur.