State v. Sickles

2015 Ohio 5162

• Court: Ohio Court of Appeals
• Decided: December 10, 2015
• Docket: 15 COA 012
• Status: Published

Opinion

[Cite as State v. Sickles, 2015-Ohio-5162.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 15 CA 012 DEVAN J. SICKLES

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 14 CR 057

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 10, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

STEVE KNOWLING DAVID M. HUNTER PROSECUTING ATTORNEY LAW OFFICE OF DAVID M. HUNTER 164 East Jackson Street 244 West Main Street Millersburg, Ohio 44654 Loudonville, Ohio 44842 Holmes County, Case No. 15 CA 012 2

Wise, J.

{¶1} Appellant Devan J. Sickles appeals from his conviction and sentence, in the

Court of Common Pleas, Holmes County, for felonious assault. Appellee is the State of

Ohio. The relevant facts leading to this appeal are as follows.

{¶2} On or about August 23, 2014, Appellant Sickles and his friend, George

Caruthers (aka Crowthers), stopped at the Glenmont Tavern, located in the southwestern

area of Holmes County. At some point during the evening, Caruthers and a tavern patron,

Josh Etzweiler, were involved in a verbal altercation. The dispute escalated into a physical

fight between Caruthers and Etzweiler outside, behind the tavern. Appellant then entered

the fray and without warning fired a single round from a rifle into Etzweiler’s back and

chest. Appellant thereupon fled to Coshocton County, where he was later apprehended.

The rifle used in the incident was also recovered. Etzweiler survived the assault.

{¶3} On September 22, 2014, appellant was indicted by the Holmes County

Grand Jury on two counts of felonious assault (each a felony of the second degree), two

counts of attempted murder (each a felony of the first degree), and one count of having a

weapon while under a disability (a felony of the third degree). Each count included a

firearm specification pursuant to R.C. 2941.145(A).

{¶4} Appellant initially pled not guilty to all counts and specifications.

{¶5} On March 18, 2015, appellant appeared before the trial court for a plea

hearing. At that time, he entered a plea of guilty to Count 2, Felonious Assault ((R.C. Holmes County, Case No. 15 CA 012 3

2903.11(A)(2) and 2903.11(D)(1)(a)), with a firearm specification.1 The remaining four

counts were dismissed by the State.

{¶6} On May 12, 2015, the trial court sentenced appellant to the maximum term

of eight years in prison on the sole felonious assault count, to be served consecutively to

the mandatory three-year firearm specification term. See 2929.14(B)(1)(a)(ii). The trial

court also ordered, inter alia, restitution to the victim of nearly $274,000.00.

{¶7} On June 10, 2015, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE

MAXIMUM SENTENCE FOR HIS FELONY CONVICTION.”

I.

{¶9} In his sole Assignment of Error, appellant contends the trial court

erroneously sentenced him to the maximum term for the second-degree felony count of

felonious assault. We disagree.

{¶10} For several years after the Ohio Supreme Court's decision in State v. Foster

(2006), 109 Ohio St.3d 1, 845 N.E.2d 470, we consistently held that judicial fact-finding

was not required before a trial court could impose non-minimum, maximum or

consecutive prison terms. See, e.g., State v. Williams, Muskingum App. No. CT2009–

0006, 2009–Ohio–5296, ¶ 19. Subsequently, by way of 2011 Am.Sub. H.B. No. 86, which

became effective on September 30, 2011, the General Assembly expressed its intent to

revive the statutory fact-finding provisions pertaining to the imposition of consecutive

1 The plea agreement did not include a joint sentencing recommendation. See Sentencing Transcript at 6. Holmes County, Case No. 15 CA 012 4

sentences that were effective pre-Foster. However, the provisions requiring findings for

“maximum” and “more than minimum” sentences that the legislature did not intend to

revive were explicitly repealed under H.B. 86. See State v. George, 5th Dist. Fairfield No.

14 CA 45, 2015-Ohio-3065, ¶ 11, citing State v. White, 1st Dist. Hamilton No. C–130114,

2013–Ohio–4225, ¶ 8. In other words, “[t]he 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.”

State v. King, 992 N.E.2d 491, 2013–Ohio–2021, ¶ 45 (2nd Dist.).

{¶11} Furthermore, in State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–

Ohio–4912, a plurality opinion, the Ohio Supreme Court established a two-step procedure

for reviewing a felony sentence. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first

step is satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id.

{¶12} While recognizing the approach has been rejected by some Ohio appellate

districts, we will herein utilize the Kalish framework as our standard of review in this felony

sentencing context. See State v. Bailey, 5th Dist. Ashland No. 14–COA–008, 2014–Ohio–

5129, ¶ 18–¶ 19.

{¶13} In the case sub judice, the trial court held a sentencing hearing and, as set

forth in its written entry, conducted a review and application of the purposes of sentencing

found in R.C. 2929.11 and the seriousness and recidivism factors found in R.C. 2929.12. Holmes County, Case No. 15 CA 012 5

See Sentencing Entry, May 12, 2015, at 1-5. The court also reviewed the written

presentence investigation report (“PSI”), which is part of the present record before us.

{¶14} The trial court ultimately gave appellant an eight-year prison sentence for

the second-degree felonious assault count (the maximum term within the range allowable

under R.C. 2929.14(A)(2)), to be served consecutively to the mandatory three-year

firearm specification term. Appellant urges, inter alia, that even if his actions did not

constitute the legal defense of self-defense, his response of purportedly intervening on

behalf of his friend should have been given more weight as a mitigating factor in the

sentence. However, based on our review of the record, given inter alia that the victim,

Etzweiler, suffered serious physical harm, the existence of appellant’s prior felony drug

record (barring him from even carrying or brandishing a firearm on the night of the

assault), and the fact that his commission of the crime took place while he was out on

bond for drug trafficking in a Coshocton County case, we do not find the trial court acted

clearly and convincingly contrary to law or abused its discretion in rendering a maximum

sentence under the facts and circumstances of this case. Holmes County, Case No. 15 CA 012 6

{¶15} Appellant's sole Assignment of Error is therefore overruled.

{¶16} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Holmes County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.

JWW/d 1119