[Cite as State v. Schwytzer, 2021-Ohio-83.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
: STATE OF OHIO : : Appellate Case No. 2019-CA-20 Plaintiff-Appellee : : Trial Court Case No. 2019-CR-476 v. : : (Criminal Appeal from DUSTIN A. SCHWYTZER : Common Pleas Court) : Defendant-Appellant :
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OPINION
Rendered on the 15th day of January, 2021.
JANNA L. PARKER, Atty. Reg. No. 0075261, Miami County Prosecutor’s Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
BENJAMIN ELLIS, Atty. Reg. No. 0092449, 805-H Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant
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TUCKER, P.J. -2-
{¶ 1} Defendant-appellant, Dustin A. Schwytzer, appeals from his convictions on
one count of unlawful sexual conduct with a minor, a fourth degree felony pursuant to
R.C. 2907.04(A) and (B)(1), and one count of sexual battery, a third degree felony
pursuant to R.C. 2907.03(A)(1) and (B). Raising one assignment of error, Schwytzer
argues that the trial court erred in sentencing him for the offense of sexual battery,
because the court incorrectly indicated that a term of imprisonment was presumptively
necessary. Although no such presumption applies to the offense, we hold that the trial
court’s error was harmless, and therefore, Schwytzer’s convictions are affirmed.
I. Facts and Procedural History
{¶ 2} On September 24, 2019, a high school counselor contacted the West Milton
Police Division to report that a female student wanted to obtain a protection order against
Schwytzer. The student disclosed that in October 2018, when she was 15 years old,
Schwytzer, who was then 27 years old, had engaged in sexual conduct with her on
several occasions. Schwytzer persisted in contacting the student by telephone and
appearing outside her home long after she had ended the relationship, which prompted
her to seek assistance. Another female student, who was 16 years old, reported that
Schwytzer had recently forced himself on her in the back seat of a car; Schwytzer was 28
years old at that time.
{¶ 3} On October 3, 2019, Schwytzer appeared before the Miami County Municipal
Court, where he waived his right to a preliminary hearing and agreed to plead guilty to
one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A) and one
count of sexual battery in violation of R.C. 2907.03(A)(1). In exchange, the State agreed -3-
to refrain from prosecuting Schwytzer on a proposed count of rape. The parties did not
agree to a recommended sentence.
{¶ 4} Schwytzer appeared before the Miami County Court of Common Pleas on
October 29, 2019. He waived his right to prosecution by indictment, consented to
prosecution by information, and entered pleas of guilty to the charges of unlawful sexual
conduct with a minor in violation of R.C. 2907.04(A) and sexual battery in violation of R.C.
2907.03(A)(1). The case was referred for a presentence investigation, and the court
scheduled a sentencing hearing for December 2, 2019.
{¶ 5} At the sentencing hearing, the trial court sentenced Schwytzer to serve
concurrent terms in prison of 16 months on the charge of unlawful sexual conduct with a
minor and 60 months on the charge of sexual battery. While discussing the latter
offense, the court remarked that “[b]ecause [Schwytzer] [was] convicted of sexual
battery[,] * * * a felony of the third degree[,] * * * there is a presumption for prison.”
Transcript of Sentencing Hearing 11:13-11:15, Dec. 2, 2019 [hereinafter Sentencing
Transcript]. The court filed an entry memorializing the sentences on December 4, 2019,
and Schwytzer timely filed a notice of appeal to this court on December 9, 2019.
II. Analysis
{¶ 6} For his single assignment of error, Schwytzer contends that:
THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE IN
SENTENCING HIM UNDER A PRESUMPTION OF PRISON[.]
{¶ 7} Schwytzer argues that the trial court erred by sentencing him to serve 60
months in prison for the offense of sexual battery, because the court stated incorrectly
that a term of imprisonment was presumptively necessary. Appellant’s Brief 7. In -4-
Schwytzer’s view, the court thus “began its consideration of the proper punishment from
the wrong place,” which had “the same practical effect [as] judicial bias.” Id. at 10. The
State concedes that no presumption applied. Appellee’s Brief 3.
{¶ 8} A “trial court has full discretion to impose any sentence within the authorized
statutory range, and [it] is not required to make any findings or give its reasons for
imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021,
992 N.E.2d 491, ¶ 45 (2d Dist.), citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470, paragraph seven of the syllabus. On review of a felony sentence, an
appellate court may vacate or modify the sentence “only if it determines by clear and
convincing evidence” that the record of the case does not warrant the sentence, pursuant
to the relevant statutes, or that the sentence is otherwise contrary to law. See State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.2d 1231, ¶ 1; see also R.C.
2953.08(G)(2). A sentence “is not contrary to law [if it falls] within the statutory range
[and the trial court] expressly state[s] that it * * * considered the purposes and principles
of sentencing [under] R.C. 2929.11 [and] 2929.12.” (Citation omitted.) State v.
Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32 (2d Dist.).
{¶ 9} Under R.C. 2929.11(A), a “court that sentences an offender for a felony shall
be guided” by the “overriding purposes” of punishing the offender and “protect[ing] the
public from future crime by the offender and others,” while “using the minimum sanctions
that [it] determines [likely to] accomplish [these] purposes without imposing an
unnecessary burden on state or local government resources.” Accordingly, the “court
shall consider the need for incapacitating the offender, deterring the offender and others
from future crime, rehabilitating the offender, and making restitution.” Id. R.C. -5-
2929.11(B) adds that a felony sentence “shall be reasonably calculated to achieve the
two overriding purposes of felony sentencing * * *, commensurate with and not demeaning
to the seriousness of the offender’s conduct and its impact upon [any] victim[s], and
consistent with sentences imposed for similar crimes committed by similar offenders.”
{¶ 10} Pursuant to R.C. 2929.12(A), in “exercising [its] discretion” to determine “the
most effective way to comply with the purposes and principles of sentencing set forth in
[R.C.] 2929.11,” a court must consider, among other things, a list of nine factors
“indicating that [an] offender’s conduct [was] more serious than conduct normally
constituting” the offense for which the offender was convicted; a list of four factors
“indicating that the offender’s conduct [was] less serious than conduct normally
constituting the offense”; a list of five factors “indicating that the offender is likely to commit
future crimes”; and a list of five factors “indicating that the offender is not likely to commit
future crimes.” See also R.C. 2929.12(B)-(E). The court “may [further] consider any
other factors that are relevant to achieving [the] purposes and principles of [felony]
sentencing.” R.C. 2929.12(A).
{¶ 11} Schwytzer challenges his sentence for sexual battery. By default, sexual
battery is a third-degree felony, but if the victim is less than 13 years old, “sexual battery
is a felony of the second degree,” entailing “a mandatory prison term equal to one of the
definite prison terms prescribed in [R.C.] 2929.14[(A)(2)(b)].” Id.; see also R.C.
2929.13(F)(3)(c) (similarly requiring imposition of a term in prison for the offense of sexual
battery in cases in which the victim is under 13). The victim in the instant case, however,
was more than 13 years old at the relevant time, meaning that a prison term was not
mandatory pursuant to R.C. 2907.03(B). Moreover, a prison term was not “presumed [to -6-
be] necessary” under R.C. 2929.13(D)(1), which includes no provisions relating to cases
of sexual battery involving victims over the age of 13. The trial court therefore erred by
stating that a presumption in favor of a prison term applied to the charge of sexual battery.
{¶ 12} Even so, “[a]ny error, defect, irregularity, or variance [in a criminal matter]
which does not affect [the defendant’s] substantial rights shall be disregarded” as a
“harmless error.” See Crim.R. 52(A); State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-
166, 28 N.E.3d 1256, ¶ 36. Under the “harmless-error standard of review, ‘the
government bears the burden of demonstrating that [a purportedly harmless] error did not
affect the substantial rights of the defendant.’ ” (Emphasis omitted.) Harris at ¶ 36,
quoting State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15.
Generally, for an error to be deemed to have affected the defendant’s substantial rights,
the defendant must have suffered prejudice as a result of the error. Id.
{¶ 13} The trial court sentenced Schwytzer to a term in prison of 60 months on the
charge of sexual battery. During the sentencing hearing, the court offered the following
explanation to Schwytzer:
The court has considered the presentence investigation report[,]
[along with] [t]he statement that you’ve made and [the statement made by]
your counsel, as well as the [arguments offered by] the [S]tate[,] and [the]
victim impact statement[s] from [the victim of the sexual battery offense and]
her [mother,] [her] grandmother[,] and [her] brother. The court must
consider the three principles of sentencing, [which are] to protect the public
from future crime; to punish [offenders] for the offense[s] [they have]
committed; and [to] promote effective rehabilitation. The court must -7-
[further] consider whether you’re likely to [commit additional crimes in the
future,] and that is based upon your history of delinquency as a juvenile.
Part of it may be your pattern [of] treating yourself with marijuana[.] I’m not
quite clear about that, but it’s very clear [that] that’s what you do * * *. You
do not appear to be rehabilitated. The court must consider the seriousness
factors under [R.C. 2929.12], and again, that [implicates your] significant
juvenile history, including the non-compliance. Under the statute, you also
satisfy the provisions that it was the relationship with the victim that
facilitated the offense[,] and [the victim’s] age is a contributing factor. * * *
In the sexual battery charge, you were 28 [years old] and the victim had
turned 16 * * * one month [before the commission of the offense]. Because
you have been convicted of sexual battery[,] it is a felony of the third
degree[,] and there is a presumption for prison[.] You do [sic] meet the
following elements [on the basis of which] the court concludes prison is
appropriate. Your conduct was more serious than conduct normally
constituting the offense[s] [with which you were charged] because it’s your
relationship with the victims that facilitated [the] offense[s]. [The]
differen[ce] [between your age and that of the victim, who was] just turning
16 when you were * * * 28[, is another factor making your conduct more
serious than conduct normally constituting the offense.] You have a
serious juvenile record that makes this court believe it involved the same
exact type of conduct[.] [T]he reason for that is it was a felony burglary
charge on a reduction[,] and part of your sentence was you were ordered to -8-
complete sex offender treatment.
(Emphasis added.) Sentencing Transcript 10:19-11:23.
{¶ 14} When the trial court mentioned that Schwytzer had, in the past, been
ordered to complete sex offender treatment, Schwytzer responded, “[w]hich I did, your
honor.” Id. at 11:24. The court then continued as follows:
You would not have had to [complete sex offender treatment] if [the
corresponding juvenile offense] did not involve the same type of conduct [at
issue] here * * *. Furthermore, your background and the facts of this case
are disturbing. You have an extensive juvenile history. That history
includes [the foregoing] felony burglary charge[, as part of which] you were
ordered to complete treatment for impulsive disorder[,] and mental health
and sex offender treatment, amongst other treatments. You violated
probation[,] and you were committed. You had parole violations in 2007
and two parole violations in 2008. The facts in this case demonstrate to
the court that you clearly prey on young girls. Two girls came forward[,]
and the [presentence investigation] report clearly indicates that there are
more victims, [who] just didn’t come forward. * * *. [With respect to the
sexual battery offense], the victim had just turned 16; you were 28; [and you
and the victim] were [with two other persons] in a car in a McDonald’s
parking lot. You * * * spoke quietly outside the car [with one of the other
two persons], [and the two other persons] then left. You intentionally got
[the victim] alone in the car where you then sexually assaulted her. There
was no provocation; no relationship; nothing more than you having -9-
compulsive behavior to sexually assault young girls. I have personally
been to that McDonald’s. I cannot even begin to describe what I think of
when I hear about that conduct in that parking lot. That is an extremely
small parking lot. There’s no extended parking[, and] no semi parking[,]
[and] all the cars are very close in proximity[.] [A]nd you’re having sex in a
car in the McDonald’s parking lot during business hours. There’s
absolutely no excuse[,] [no] reason[,] [n]or any explanation for that. You
didn’t care if anyone saw you; nothing was going to stop you from attacking
that girl in that car.
***
In looking at * * * mitigating factors, the court finds none. * * * The
court doesn’t find anything believable you’ve said here today. You have
had—you’re 28[, so] you’ve had plenty of time to get treatment [since you
were adjudicated delinquent as a juvenile]. You said yourself [that] you
had all kinds of treatment ordered during your juvenile history[.] [Y]ou have
a father who’s not [a good] example, and yet you’ve done nothing to help
yourself. You’ve done nothing to get treatment on your own[.] [Y]ou’ve
not taken the [prescribed] medication for any mental health issue[s] you may
have; instead, you hung out with children or girls that were [10] years or
more younger than you and smoked marijuana[.] [A]nd the court also finds
it troubling that this is the reason [you said earlier that] you’re ready to
change[,] because you haven’t been in that big of trouble [sic] before. You
* * * have an adult record, [though] it’s just not as serious as this one [sic], -10-
but you’ve [been convicted of] theft[,] [and were charged with] drug
[offenses] that were amended to disorderlies. * * *
Id. at 12:1-14:2.
{¶ 15} The trial court’s explanation conveys an emphatic belief that a prison
sentence was necessary as a sanction for the offense of sexual battery, regardless of
whether a presumption in favor of prison was applicable. After noting the victim’s age,
Schwytzer’s age, the nature of the offense and the degree of the offense, the court
referred only once to a presumption, and then discussed its rationale at length. The court
deemed a prison sentence to be necessary in reliance on the presentence investigation
report, which recommended that Schwytzer be sentenced to prison; the likelihood that
Schwytzer would commit similar offenses in the future; the seriousness of Schwytzer’s
conduct, which the court found to be more serious than conduct normally constituting the
offense; Schwytzer’s considerable juvenile record, which included indications that
Schwytzer had a predilection to commit sex offenses; the circumstances of the offense,
which the court found to be particularly disturbing; and the lack of any mitigating factors.
{¶ 16} Furthermore, the trial court imposed nearly the maximum prison term for the
other offense with which Schwytzer was charged—unlawful sexual conduct with a minor,
a fourth-degree felony. Although no presumption in favor of prison applied to the
offense, the court determined nonetheless that a term in prison was warranted. This
determination suggests, all but conclusively, that the court’s decision to impose a prison
sentence for the more serious offense of sexual battery was based independently on the
court’s discretion, rather than the court’s incorrect reference to a presumption in favor of
prison. -11-
{¶ 17} Schwytzer argues that the trial “court’s application of a presumption of
prison in sentencing [him], where no such presumption exists,” is “contrary to law in the
most elementary meaning of the phrase.” Appellant’s Brief 8, citing State v. Lofton, 2d
Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. He cites two opinions from the
Seventh District Court of Appeals in support of his argument.
{¶ 18} In the first of these, the trial court sentenced the defendant to a total of 30
months in prison, and in its judgment entry, the court found that the “ ‘[d]efendant had
failed to overcome the presumption of imprisonment under [R.C.] 2929.13(D).’ ” State v.
Robinson, 7th Dist. Mahoning No. 07 MA 224, 2008-Ohio-4321, ¶ 5, quoting the trial
court’s judgment entry. Yet, the fourth-degree felony and fifth-degree felony “offenses
to which [the defendant] pleaded guilty [were] not [among] the offenses listed in R.C.
2929.13(D),” nor did any “other statute [establish] a presumption in favor of a prison term
for * * * the offenses to which [the defendant] pleaded guilty.” Id. at ¶ 7. As a result, the
Seventh District vacated the sentence. Observing that R.C. 2929.13(B)(1) establishes a
presumption in favor of community control sanctions for fourth- and fifth- degree felonies,
the Seventh District explained that it could not “excuse the fact that the trial court used an
incorrect presumption for imprisonment in place of a correct presumption against
imprisonment[,] simply because the trial court made other findings which would [have]
support[ed] the [imposition of a prison] sentence.” See id. at ¶ 9-22. Here, however, no
mandate or presumption in favor of community control sanctions applied to the offenses
for which Schwytzer was sentenced to prison. See R.C. 2929.13(B)(1)(a)(ii), (C) and
(D)(1).
{¶ 19} In the second of the Seventh District cases, the defendant was convicted -12-
on two counts of gross sexual imposition under R.C. 2907.05(A)(4), and the trial court
found that a term in prison was presumptively necessary pursuant to R.C. 2907.05(C)(2)
and 2929.13(D). State v. DiMichelle, 7th Dist. Jefferson No. 09-JE-31, 2010-Ohio-3169,
¶ 13 and 17-18. On review, the Seventh District noted that the trial court had relied on
versions of R.C. 2907.05 and 2929.13 which became effective after the defendant had
committed the offenses for which he was convicted, meaning that the trial court should
have applied the previous versions of the statutes. See id. at ¶ 19-25. The Seventh
District reasoned that, “[b]ecause the trial court improperly applied the wrong statutory
presumption in favor of prison, the sentence is contrary to law and must be reversed.”
Id. at ¶ 25.
{¶ 20} Schwytzer argues likewise that because the trial court in this case
incorrectly stated that a presumption applied to the offense of sexual battery, the sentence
was contrary to law. Appellant’s Brief 8-10. Although the trial court did refer to a
presumption, we find the record suggests that the court did not rely on the presumption
to any meaningful extent as part of its sentencing determination. Instead, the court
determined that a term in prison was the appropriate punishment based on the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and 2929.12. In DiMichelle,
by contrast, the Seventh District found that “there [was] no question that the trial court
applied a presumption of prison.” DiMichelle at ¶ 13.
{¶ 21} On review of the record of Schwytzer’s sentencing hearing, we find that in
sentencing Schwytzer to a term in prison of 60 months on the charge of sexual battery,
the trial court relied on the facts of the case and the statutory purposes and principles of
felony sentencing, rather than its single reference to an inapplicable presumption in favor -13-
of prison. The record fully supports the trial court’s findings, and the term was within the
range authorized by R.C. 2929.14(A)(3)(a). Consequently, we hold that the trial court’s
erroneous reference to a presumption in favor of prison was a harmless error.
Schwytzer’s assignment of error is overruled.
III. Conclusion
{¶ 22} The trial court’s incorrect reference to a presumption in favor of a term in
prison for the offense of sexual battery did not affect Schwytzer’s substantial rights.
Although the trial court referred to a presumption, the court’s rationale for the sentence
demonstrates that the court deemed a term in prison to be the appropriate sanction
regardless of whether a presumption applied to the offense under the circumstances.
Therefore, Schwytzer’s convictions are affirmed.
HALL, J., concurs.
FROELICH, J., dissents:
{¶ 23} By dissenting, I am not saying that the ultimate sentence was not
appropriate and supported by the record. My concern is that we have no way of discerning
how much weight, if any, the trial court gave to the non-existent presumption and whether
the result would have been the same had the trial court exercised its discretion without
that presumption. An appellate court cannot and should not exercise its discretion based
on the record and find that the sentence was based solely on the trial court’s discretion
and the statutory factors, as opposed to the statutory presumption which the court
articulated. -14-
{¶ 24} The Robinson decision, while neither binding nor precisely on point, is
nonetheless instructive. There, the trial court mistakenly used a presumption of
imprisonment when sentencing the defendant to consecutive prison terms on his guilty
pleas to burglary and breaking and entering. See Robinson, 7th Dist. Mahoning No. 07
MA 224, 2008-Ohio-4321, ¶ 1-2. As in this case, the State acknowledged the trial court’s
error, yet argued that the error was harmless because the prison sentence imposed was
within the statutory range and supported by the record. The State relied on State v. Good,
3d Dist. Logan No. 8-04-37, 2005-Ohio-2660, which held that the trial court’s citation to
inapplicable factors, in addition to the correct statutory factors, when imposing sentence
was harmless. The appellate court vacated Robinson’s sentence, stating in part:
The difference between the error the trial court made in Good and the error
the trial court made in this case is not merely a difference of degree, which
can be judged similarly; it is a difference of type, which calls for a difference
[sic] type of analysis. We cannot excuse the fact that the trial court used an
incorrect presumption for imprisonment * * * simply because the trial court
made other findings which would support the sentence imposed. The trial
court started its consideration of the proper punishment to be imposed on
Robinson from the wrong place.
Id. at ¶ 9.
{¶ 25} The State seeks to distinguish Robinson on the basis that, at the time the
defendant in that case was sentenced, the sentencing statute required trial courts to
determine that defendants convicted of non-violent fourth- and fifth-degree felonies (such
as Robinson) were not amenable to community control sanctions before imposing a -15-
prison sentence. See former R.C. 2929.13(B)(1)-(2). The trial court in Robinson failed to
do so. Robinson at ¶ 22. This is a distinction without a difference since the Robinson
appellate court could have found that the other factors in the record demonstrated that
Robinson was not amenable to community control.
{¶ 26} Further, any distinction that does exist between Robinson and the instant
case is insufficient to overcome the likelihood of prejudice stemming from the trial court’s
explicit beginning of its analysis of Schwytzer’s sentencing factors “from the wrong place.”
See Robinson at ¶ 9. Although the trial court thoroughly considered the seriousness and
recidivism factors before imposing a prison term in Schwytzer’s case, the record does not
disclose the extent to which that conclusion was influenced by the trial court’s erroneous
belief that a presumption of prison applied. While the trial court detailed factors that may
have supported a prison sentence even in the absence of a statutory presumption of such,
I cannot say, beyond a reasonable doubt, that the trial court would have imposed a prison
term regardless of the erroneous presumption.
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Janna L. Parker Benjamin W. Ellis Hon. Stacy M. Wall