State v. Wickham

2019 Ohio 4850

• Court: Ohio Court of Appeals
• Decided: November 26, 2019
• Docket: 19-COA-013
• Status: Published

Opinion

[Cite as State v. Wickham, 2019-Ohio-4850.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JOHN E. WICKHAM, JR. : Case No. 19-COA-013 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 18-CRI-119

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 26, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

VICTOR R. PEREZ BRIAN A. SMITH 110 Cottage Street 755 White Pond Drive Ashland, OH 44805 Suite 403 Akron, OH 44320 Ashland County, Case No. 19-COA-013 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, John E. Wickham, Jr., appeals his April 9, 2019

sentence by the Court of Common Pleas of Ashland County, Ohio. Plaintiff-Appellee is

the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On July 13, 2018, the Ashland County Grand Jury indicted appellant on one

count of aggravated arson in violation of R.C. 2909.02, one count of arson in violation of

R.C. 2909.03, one count of breaking and entering in violation of R.C. 2911.13, and one

count of petty theft in violation of R.C. 2913.02.

{¶ 3} On March 1, 2019, appellant pled guilty to the aggravated arson count. The

remaining counts were dismissed. By judgment entry filed April 9, 2019, the trial court

sentenced appellant to six years in prison and ordered him to pay over $9,000 in

restitution.

{¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 5} "THE TRIAL COURT'S SENTENCE OF APPELLANT WAS NOT

SUPPORTED BY THE RECORD."

{¶ 6} In his sole assignment of error, appellant claims his sentence was not

supported by the record. We disagree.

{¶ 7} This court reviews 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, Ashland County, Case No. 19-COA-013 3

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

2953.08(G)(2) states 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.

{¶ 8} "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.

{¶ 9} " 'An appellate court will not find a sentence 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.

Garrison, 5th Dist. Muskingum No. CT2017-0018, 2018-Ohio-463, ¶ 47, quoting State v.

Ahlers, 12th Dist. Butler No. CA2015-06–100, 2016-Ohio-2890, ¶ 8.

{¶ 10} There is no dispute that the six year sentence is within the statutory range

for a felony in the first degree. R.C. 2929.14(A)(1). Appellant argues the trial court failed

to consider the principles and purposes of felony sentencing under R.C. 2929.11 and the

seriousness and recidivism factors under R.C. 2929.12.

{¶ 11} R.C. 2929.11 governs the overriding purposes of felony sentencing.

Subsection (A) states the following: Ashland County, Case No. 19-COA-013 4

A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony

sentencing are to protect the public from future crime by the offender and

others and to punish the offender using the minimum sanctions that the

court determines accomplish those purposes without imposing an

unnecessary burden on state or local government resources. To achieve

those purposes, the sentencing 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.

{¶ 12} R.C. 2929.12 sets forth the seriousness and recidivism factors for a trial

court to consider in determining the most effective way to comply with the purposes and

principles of sentencing pursuant to R.C. 2929.11. The statute provides a long list of

factors, including any other relevant factors, a trial court must consider when determining

the seriousness of the offense and the likelihood that the offender will commit future

offenses. Pertinent to this case are the following two factors:

(1) The physical or mental injury suffered by the victim of the offense

due to the conduct of the offender was exacerbated because of the physical

or mental condition or age of the victim. Ashland County, Case No. 19-COA-013 5

(2) The victim of the offense suffered serious physical, psychological,

or economic harm as a result of the offense.

{¶ 13} In considering the R.C. 2929.11 and 2929.12 factors, "[t]he trial court has

no obligation to state reasons to support its findings. Nor is it required to give a talismanic

incantation of the words of the statute, provided that the necessary findings can be found

in the record and are incorporated into the sentencing entry." State v. Wilson, 5th Dist.

Richland No. 17CA31, 2018-Ohio-396, ¶ 61; State v. Bell, 5th Dist. Muskingum No.

CT2016-0050, 2017-Ohio-2621, ¶ 40.

{¶ 14} As this court stated in State v. Moyer, 5th Dist. Licking No. 18 CA 0065,

2019-Ohio-0065, 2019-Ohio-1187, ¶ 26:

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. State v. Polick, 101

Ohio App.3d 428, 431 (4th Dist. 1995); State v. Gant, 7th Dist. No. 04 MA

252, 2006-Ohio-1469, at ¶ 60 (nothing in R.C. § 2929.12 or the decisions

of the Ohio Supreme Court imposes any duty on the trial court to set forth

its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94

(1992); State v. Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶ 10

(trial court was not required to address each R.C. § 2929.12 factor

individually and make a finding as to whether it was applicable in this case),

State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶ 19 ("... R.C. Ashland County, Case No. 19-COA-013 6

2929.12 does not require specific language or specific findings on the

record in order to show that the trial court considered the applicable

seriousness and recidivism factors"). (Citations omitted.)

{¶ 15} Appellant claims he met three factors under R.C. 2929.12 making recidivism

less likely: 1) he was not on probation, parole, or post-release control at the time of the

offense; 2) he did not have any prior felony convictions; and 3) he showed genuine

remorse for his actions.

{¶ 16} On March 1, 2019, appellant pled guilty to one count of aggravated arson.

During the April 8, 2019 sentencing hearing, the trial court heard how appellant set fire to

his girlfriend's parents' house with occupants inside including an eight year old child. T.

at 6. As a result of the fire, the child is angry, terrified, has nightmares, and is undergoing

counseling. T. at 8, 12-13. The trial court also heard how appellant verbally and

physically abused his girlfriend and threatened her on several occasions. T. at 9-10.

Defense counsel indicated appellant did not have a felony record, but "has had some

scrapes with the law in terms of misdemeanors and mostly low level drug situations." T.

at 4.

{¶ 17} In reviewing the presentence investigation report, the trial court noted

appellant's risk assessment score was in the moderate range. T. at 15-16. The trial court

then stated the following (T. at 16):

And he has no prior felony history, and I understand the nature of

those offenses are very serious, and I heard the description about the Ashland County, Case No. 19-COA-013 7

physical abuse as well as the threats which make me believe that this

individual would be capable of coming back and trying to follow through,

and his intentions when setting the fires was to cause physical harm to the

individuals, if not psychological harm * * *.

***

Nonetheless, again, I am finding that it's serious enough that it

should be more than a minimum sentence and on the higher side of things.

{¶ 18} In its judgment entry filed April 9, 2019, the trial court indicated it reviewed

the presentence investigation report, and noted it considered "the purposes of felony

sentencing as set forth in Ohio Revised Code Section 2929.11," and "fully considered the

provisions of O.R.C. Chapter 2929, the circumstances of the offense, the information

contained in the pre-sentence investigation and the information furnished by the parties

to this case." The trial court stated the following:

Based upon consideration of the purposes and principles of the

felony sentencing law, the statutory sentencing factors, and after weighing

the above findings, this Court finds that the Defendant is NOT amenable to

community control sanctions and that a prison sentence is consistent with

the purposes and principles of the felony sentencing law of Ohio and that

community control is not required. Ashland County, Case No. 19-COA-013 8

{¶ 19} Upon review, we find the sentence imposed is not clearly and convincingly

contrary to law. The sentence is within the statutory range for a felony of the first degree,

and the trial court considered the R.C. 2929.11 and 2929.12 factors.

{¶ 20} The sole assignment of error is denied.

{¶ 21} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.

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