State v. Vantilburg , 2017 Ohio 5711 ( 2017 )

[Cite as State v. Vantilburg, 2017-Ohio-5711.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 16 CO 0001)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JASON E. VANTILBURG )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Columbiana County,
Ohio
Case No. 14 CR 285
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Robert Herron
Columbiana County Prosecutor
Atty. Tammie Riley Jones
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Atty. Scott C. Essad
721 Boardman-Poland Road
Suite 201
Youngstown, Ohio 44512
JUDGES:
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: June 29, 2017
[Cite as State v. Vantilburg, 2017-Ohio-5711.]
WAITE, J.
{¶1} Appellant Jason E. Vantilburg appeals the sentence ordered by the
Columbiana County Common Pleas Court. Appellant contends the trial court abused
its discretion and his sentence was clearly and convincingly contrary to law.
However, a review of the record reveals the trial court followed the statutory
sentencing requirements, and the six-year sentence is within the statutory range for a
felony of the second degree. As the trial court was not required to impose a
nonprison sentence, made findings on the record, and imposed a sentence that was
within the statutory range, the trial court did not err. Appellant’s assignment of error
lacks merit and is overruled. The sentence of the trial court is affirmed.
Factual and Procedural History
{¶2} Appellant was indicted on August 2, 2014 by the Columbiana County
Grand Jury on a charge of robbery, in violation of R.C. 2911.02(A)(2), a felony of the
second degree. The robbery occurred on July 29, 2014 at a Gina’s Drive-thru in East
Liverpool, Ohio. Appellant entered the business wearing a mask, tackled a guest
and pushed an employee out of the way to remove money from the register before
fleeing and discarding his mask and other clothing in a nearby wooded area.
{¶3} Appellant was arraigned on September 12, 2014. On September 29,
2014, Appellant filed a motion for a psychiatric evaluation, seeking a determination of
his competency to stand trial. A second, similar motion was filed on December 4,
2014 wherein Appellant claimed that during the time of the offense he suffered from
“Schizoaffective Disorder.” A competency hearing was held on December 4, 2014.
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Based on the competency and sanity evaluation the trial court found that Appellant
was competent to stand trial.
{¶4} On September 22, 2015, the day of trial, Appellant elected to change
his plea. Appellant entered a guilty plea to the robbery charge. A full sentencing
hearing was held on October 19, 2015. This hearing included testimony from Chad
Jakubowski, a chemical dependency specialist at The Counseling Center in
Columbiana County who had been working with Appellant since October of 2014
while Appellant was in jail awaiting trial. Mr. Jakubowski testified that Appellant had
completed most of the program and had shown progress. He also testified that
Appellant reported that he “enjoyed being incarcerated simply because of the
structure of the program and the persons that were there.” (10/19/15 Tr., p. 26.)
{¶5} The trial court sentenced Appellant to a term of six years of
incarceration in a state correctional facility with a credit of 446 days for time served.
Appellant filed a pro se motion for leave to file a delayed appeal, a motion for
appointment of counsel and a request for transcript on January 6, 2016. We granted
Appellant’s motions and the instant appeal followed.
ASSIGNMENT OF ERROR
THE TRIAL COURT'S SENTENCING OF JASON VANTILBURG WAS
CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND AN
ABUSE OF DISCRETION.
{¶6} Appellant contends the trial court erred in sentencing him to a term of
six years of incarceration without properly considering the statutory sentencing
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factors set forth in R.C. 2929.11 and .12. Appellant also states that the court abused
its discretion in sentencing, relying on State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-
4912, 896 N.E.2d 124, ¶ 26. Kalish, however has been overruled by State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 10.
{¶7} In Marcum, the Ohio Supreme Court held that “appellate courts may not
apply the abuse-of-discretion standard in sentencing-term challenges.” Id. Instead,
“appellate courts must adhere to the plain language of R.C. 2953.08(G)(2).” Id. at
¶ 7. The Marcum Court held that “an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that the
record does not support the trial court's findings under relevant statutes or that the
sentence is otherwise contrary to law.” Id. at ¶ 1.
{¶8} Appellant contends his sentence is contrary to law because the trial
court failed to properly apply the sentencing guidelines contained in R.C. 2929.11
and .12. He also claims that sentencing him to a prison term to protect the public
was not appropriate where “everyone” acknowledged that Appellant was suffering
from mental health issues.
{¶9} The state responds that the trial court made findings regarding the
purposes and principles of sentencing and pertaining to the seriousness and
recidivism factors on the record, and that Appellant’s six-year term of incarceration
fell within the permissible statutory range.
{¶10} We have consistently held that a trial court is not required to specifically
discuss or even mention the seriousness and recidivism factors at hearing as long as
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the record “allows the reviewing court to determine that the proper consideration
occurred.” State v. Pyles, 7th Dist. No. 13 BE 11, 2014-Ohio-4146, ¶ 6.
{¶11} R.C. 2953.08(G)(2) provides the following:
The appellate court may take any action authorized by this division if it
clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)
of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶12} While R.C. 2953.08(G)(2) does mandate that a trial court make explicit
findings on the record under certain circumstances, for instance, when ordering
consecutive sentences pursuant to 2929.14(C)(4), it is equally clear that this section
limits this requirement only to those specific instances.
{¶13} Appellant pleaded guilty to robbery, in violation of R.C. 2911.02(A)(2), a
felony of the second degree. R.C. 2929.13(D)(1) states:
Except as provided in division (E) or (F) of this section, for a felony of
the first or second degree, * * * it is presumed that a prison term is
necessary in order to comply with the purposes and principles of
sentencing under section 2929.11 of the Revised Code * * *.
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{¶14} Appellant’s sentence falls within the applicable statutory range for a
felony of the second degree. Trial courts have full discretion to impose a sentence
within the statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846
N.E.2d 1, paragraph three of the syllabus. Moreover, the weight given to the
sentencing factors is purely within the discretion of the trial court. State v. Jones, 8th
Dist. No. 104152, 2016-Ohio-8145, ¶ 14.
{¶15} Although the trial court must consider the purposes of felony sentencing
set forth in R.C. 2929.11, as well as the sentencing factors found in R.C. 2929.12
when sentencing a defendant on a felony, the trial court is not required to discuss the
factors on the record. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, ¶ 31. Moreover, we presume that the trial court considered the
appropriate factors unless Appellant can affirmatively demonstrate otherwise based
on the record. State v. Stevens, 1st Dist. No. C-130278, 2013-Ohio-5218, ¶ 12.
{¶16} In the case at bar, it is apparent that the trial court considered the
purposes and principles of sentencing:
And your past record is important for us to look at because we can’t
look into the future but we know what happened in the past. Okay?
And, you know, you have been down this road several times, burglary
and theft and assault and robbery and again robbery. I know you spent
a lot of time in prison. You were given a shot at probation at least one
time and you violated that a [sic] couple times. So, you know, I’m not
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encouraged by your ability to take advantage of opportunities. In the
mean time, I think you’re some risk to the public.
Now, it’s horrible that you feel that your best place in many respects
has been prison because of a structured environment because you
know how to operate and how to live there. And you’re to be pitied in
that regard. But my duty, and I’m repeating, but my duty is primarily to
protect the public.
I think the State’s recommendation needs to be followed in this case.
And, again, I want you to know I thought about this case time and time
again and I just -- there is a presumption in favor of prison because of
the degree of the felony. This is a serious felony. Somebody was
harmed here. It looked like you had done a significant amount of
planning to carry off this unfortunate felonious act.
(10/19/15 Tr., pp. 48-49.)
{¶17} Not only did the trial court consider the statutory factors, but it also
acknowledged Appellant’s own statement to his counselor that he felt the structured
environment of prison was beneficial. Moreover, the court noted:
Jason, I want you to understand, I just don’t feel comfortable sending
you to EOCC, that’s a different type of facility there and because of your
misconduct in the past I feel that I would be putting those individuals at
risk. As much as it pains me to do it, I think you’re going to the place
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which I consider to be in this case, under these facts, and with your
record, my only option.
(10/19/15 Tr., p. 51.)
{¶18} On review of the trial court’s sentence, this record reflects that the trial
court engaged in the correct analysis. The court made the appropriate findings and
they are supported by the record. Moreover, Appellant’s sentence was within the
statutory range and not clearly and convincingly contrary to law. Appellant’s
assignment of error is without merit and is overruled. The judgment of the trial court
is affirmed.
DeGenaro, J., concurs.
Robb, P.J., concurs.