State v. Walsh

2022 Ohio 3883

• Court: Ohio Court of Appeals
• Decided: October 31, 2022
• Docket: 21CA000016
• Status: Published

Opinion

[Cite as State v. Walsh, 2022-Ohio-3883.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : ANDREW WALSH, : Case No. 21CA000016 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 20 CR 07-0179

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 31, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTINE WILLIAMS DONALD GALLICK Assistant County Prosecutor The Law Office of Donald Gallick, LLC Knox County, Ohio 190 North Union Street #102 117 East High Street Akron, Ohio 44304 Mount Vernon, Ohio 42050 DON HICKS 159 South Main Street #423 Akron, Ohio 44308 Knox County, Case No. 21CA000016 2

Baldwin, J.

{¶1} Appellant, Andrew Walsh, appeals his April 30, 2021 sentence from the Court of

Common Pleas of Knox County, Ohio. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On July 27, 2020, the Knox County Grand Jury indicted Walsh on two counts of

rape in violation of R.C. 2907.02 and one count of gross sexual imposition in violation of R.C.

2907.05. The charges arose from an incident between Walsh, a middle school teacher, and one

of his students. On March 25, 2021, Walsh pled guilty to an amended charge of sexual battery in

violation of R.C. 2907.03. A sentencing hearing was held on April 29, 2021. By sentencing entry

filed April 30, 2021, the trial court sentenced Walsh to sixty months in prison and classified him

as a Tier III sex offender.

{¶3} On May 27, 2021, Walsh filed a notice of appeal and on October 28, 2021, his

appellate counsel filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). By judgment entry filed February 28, 2022, this court

struck the Anders brief and denied counsel's motion to withdraw. On April 18, 2022, Walsh filed

his merit brief.

{¶4} This matter is now before this court for consideration. Assignments of error are as

follows:

{¶5} "I. THE TRIAL COURT DID NOT CONSIDER ALL REQUIRED FACTORS IN ORC

2929.12(C) AND 2929.12(D) BEFORE IMPOSING THE MAXIMUM SENTENCE."

{¶6} "II. THE TRIAL COURT IMPOSED A MAXIMUM SENTENCE IN VIOLATION OF

OHIO LAW."

{¶7} "III. THE TRIAL COURT FAILED TO CONSIDER WHETHER APPELLANT'S

SENTENCE SHOULD HAVE BEEN MITIGATED DUE TO THE MANDATORY FACTORS Knox County, Case No. 21CA000016 3

FOUND IN OHIO REVISED CODE § 2929.12(E) AND BY FAILING TO CONSIDER A LOW

RECIDIVISM SCORE."

ANALYSIS

{¶8} In his three assignments of error, Walsh claims the trial court erred in sentencing

him to the maximum sentence without considering the factors listed in R.C. 2929.12(C), (D), and

(E). We will consider the assignments simultaneously.

{¶9} Pursuant to R.C. 2953.08(A)(1), Walsh is entitled to appeal as of right the

maximum sentence imposed on his conviction. Under R.C. 2953.08(G)(2), we may either

increase, reduce, modify, or vacate a sentence and remand for resentencing if 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. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231; State v.

Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049.

{¶10} "Clear and convincing evidence is that measure or degree of proof which is more

than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required

'beyond a reasonable doubt' in criminal cases, and which will produce 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.

{¶11} As noted by this court in State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-

Ohio-8996, ¶ 16:

A trial court's imposition of a maximum prison term for a felony conviction

is not contrary to law as long as the sentence is within the statutory range for the

offense, and the court considers both the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors Knox County, Case No. 21CA000016 4

set forth [in] R.C. 2929.12. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and

103414, 2016-Ohio-5234, ¶ 10, 16.

{¶12} R.C. 2929.11 governs overriding purposes of felony sentencing and states the trial

court "shall consider the need for incapacitating the offender, deterring the offender and others

from future crime, rehabilitating the offender, and making restitution to the victim of the offense,

the public, or both."

{¶13} R.C. 2929.12 governs factors to consider in felony sentencing. Subsection (A)

states the trial court "shall consider the factors set forth in divisions (B) and (C) of this section

relating to the seriousness of the conduct, [and] the factors provided in divisions (D) and (E) of

this section relating to the likelihood of the offender's recidivism."

{¶14} In State v. Webb, 5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 17

we found that:

Although a trial court must consider the factors in R.C. 2929.11 and

2929.12, there is no requirement that the court state its reasons for imposing a

maximum sentence, or for imposing a particular sentence within the statutory

range. There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and

recidivism or even discussed them. (Citations omitted.)

{¶15} "Nothing 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." State v. Jones, 163 Ohio

St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.

{¶16} Walsh pled guilty to sexual battery in the third degree. A felony of the third degree

involving a violation of R.C. 2907.03 is punishable by "a definite term of twelve, eighteen, twenty-

four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months." R.C. 2929.14(A)(3)(a). The Knox County, Case No. 21CA000016 5

trial court sentenced Walsh to the maximum, sixty months in prison, so the sentence is not

contrary to law.

{¶17} Walsh argues the trial court "mentioned all of the factors in 2929.12 that

recommended a harsh sentence. (Sentencing transcript 27-36). However, the trial court did not

mention any of the factors * * * that required a lesser sentence, a sentence lower than a maximum

sentence" and that the trial court "considered zero of the five factors listed in" R.C. 2929.12(E)."

{¶18} Walsh’s argument is frustrated by the decisions that make clear the trial court’s

obligation to consider the factors listed in R.C. 2929.12, but do not impose any fact-finding

requirement or explanation. We have found that:

While trial courts are required to consider both R.C. 2929.11 and 2929.12

before imposing a prison sentence, they are not required to make specific findings

under any of those considerations. State v. Wilson, 129 Ohio St.3d 214, 2011-

Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88 Ohio St.3d 208, 724 N.E.2d

793 (2000). “Indeed, consideration of the factors is presumed unless the defendant

affirmatively shows otherwise.” State v. Phillips, 8th Dist. Cuyahoga No. 110148,

2021-Ohio-2772, ¶ 8, citing State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16

(8th Dist.).

State v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-Ohio-3125, ¶ 18.

{¶19} The trial court completed a thorough analysis of the statutory sentencing factors

beginning on page 27, line 19 of the sentencing transcript and continuing through page 30, line

22. The trial court concluded by stating:

So the court has considered the purposes and principles contained in

Revised Code Section 2929.11. And I've considered the seriousness factors in the

Ohio Revised Code Section 2929.12 which I just reviewed with you. And the court

has fully considered the recidivism factors of Revised Code Section 2929.12. I do Knox County, Case No. 21CA000016 6

find that a prison term is consistent with the purposes of Revised Code Section

2929.11. And that the defendant is not amenable to a community control sanction.

Sentencing Transcript, p. 30, line 23 to p. 31, line 9.

{¶20} The trial court confirmed that it considered the factors listed under R.C. 2929.12(D)

and (E), the “recidivism factors”, but did not recite each factor individually. We find that the lack

of an express review of each of the mitigating factors is not required by the Revised Code. Further,

Walsh has not provided an affirmative showing that the trial court did not consider those factors.

Crawford, supra.

{¶21} Upon review of the entire record and counsel’s arguments, we do not find clear

and convincing evidence that the record does not support the trial court's findings or that the

sentence is contrary to law. R.C. 2953.08(G)(2). The sentence is within the statutory range for a

felony of the third degree, and the trial court considered the R.C. 2929.11 and 2929.12 factors.

{¶22} Assignments of Error I, II, and III are denied.

{¶23} The judgment of the Court of Common Pleas of Knox County, Ohio, is hereby

affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.