State v. Hettmansperger ( 2014 )

[Cite as State v. Hettmansperger, 2014-Ohio-4306.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-A-0006
- vs - :
NICKOLAUS HETTMANSPERGER, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2012 CR 578.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Malcolm Stewart Douglas, 55 North Chestnut Street, Jefferson, OH 44047 (For
Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Nickolaus Hettmansperger, appeals his sentence by the
Ashtabula County Court of Common Pleas following his guilty plea to one count of
aggravated assault and one count of tampering with evidence. For the reasons that
follow, we affirm.
{¶2} On September 3, 2012, an altercation occurred among Joseph Hunt,
Darren Tackett, and appellant. During the course of the altercation, appellant shot
Joseph Hunt. After the shooting, appellant disposed of the firearm by throwing it into
the Ashtabula River.
{¶3} On September 5, 2012, a criminal complaint was filed against appellant
with the Ashtabula Municipal Court. The complaint stated that appellant “did knowingly
cause or attempt to cause physical harm to Joseph Hunt, by means of a deadly weapon
or dangerous ordnance; to-wit: a .22 caliber pistol.” The case was then bound over to
the Ashtabula County Grand Jury.
{¶4} On October 17, 2012, appellant was indicted by the Ashtabula County
Grand Jury for two counts of felonious assault and a single count of tampering with
evidence. The first count of felonious assault alleged a violation of R.C. 2903.11(A)(1),
while the second count alleged a violation of R.C. 2903.11(A)(2). R.C. 2903.11 states,
in pertinent part, that:
No person shall knowingly do either of the following:
Cause serious physical harm to another or to another’s unborn;
Cause or attempt to cause physical harm to another or to another’s
unborn by means of a deadly weapon or dangerous ordnance.
Both of the felonious assault counts included firearm specifications. Pursuant to R.C.
2903.11(D)(1)(a), felonious assault is a felony of the second degree.
{¶5} On March 18, 2013, a change of plea hearing was held by the Ashtabula
County Court of Common Pleas. At the hearing, appellant withdrew his not guilty pleas
and entered a plea of guilty to one count of aggravated assault, in violation of R.C.
2903.12(A)(2), a felony of the fourth degree; and one count of tampering with evidence,
in violation of R.C. 2921.12(A)(1), a felony of the third degree. Appellant’s change of
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plea was signed by appellant, appellant’s attorney, and Margaret A. Draper for appellee,
the state of Ohio.
{¶6} At the change of plea hearing, both sides gave their respective version of
the events that transpired on September 3, 2012. Appellee stated it could prove that
appellant traveled to a residence in Ashtabula with $500 to purchase narcotics. Next,
appellee stated that Hunt and Tackett attempted to rob appellant of his money, and in
the course of that altercation, appellant shot Hunt. Appellee also stated it could prove
that appellant admitted to disposing of the firearm by throwing it over the bridge at the
Mary Street Hill. Efforts by FBI divers to locate the weapon were unsuccessful.
{¶7} Appellant stated that he shot Hunt because he and Tackett were
attempting to steal his money. In response to questioning by the trial court judge,
appellant denied that the altercation resulted from a drug deal gone wrong. Appellant
also told the court that the firearm used in the altercation was “just a little .22.”
{¶8} On December 31, 2013, the trial court held its sentencing hearing. At
sentencing, appellant again gave his version of the events, stating:
I was getting robbed. Darren Tackett came up behind me and hit
me. That’s when I pulled out the firearm. What happened was Joe
Hunt was robbing me. Darren Tackett came behind me. Me and
Joe Hunt were fist fighting. Darren Tackett came up behind me, hit
me in the back of the head. I pulled out the gun, fired the firearm,
got in the vehicle, left. I was scared, threw the gun in the water.
And that’s exactly what happened.
Appellant repeated his position that there was no attempted drug deal and that he acted
merely out of self defense.
{¶9} At the sentencing hearing, both appellant and appellee recommended that
appellant be sentenced to a one-year period of incarceration, to be served concurrently
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with appellant’s present incarceration of nine months.1 Appellee noted that this period
of incarceration was recommended “due to the history of the alleged victim in the case,
Mr. Hunt, and the other witness, who was Darren Tackett.” The court then reminded
appellee that a firearm was involved, stating:
[The firearm] was brandished, which carries a mandatory three-
year firearm specification, so were -- you know, there’s just some
point we’ve got to put a stop to this nonsense; that somehow we’ll
have to shoot a bad guy, it’s not quite as bad as shooting some
innocent citizen.
{¶10} The trial court sentenced appellant to 18 months in prison for aggravated
assault and 18 months in prison for tampering with evidence. The trial court ordered
that the sentences be served consecutively, for a total of 36 months, and that they run
consecutively to the prison sentence that appellant was already serving. The court’s
judgment entry declared that the court had considered the purposes of sentencing
under R.C. 2929.11 and the seriousness and recidivism factors relevant to the offense
and offender pursuant to R.C. 2929.12.
{¶11} Appellant timely appeals the trial court’s judgment of sentence. Because
both of appellant’s assignments of error challenge the propriety of his sentence, we
consolidate them for review. Appellant’s assignments of error state:
[1.] The trial court abused its discretion and erred to the prejudice of
appellant by sentencing him to thirty-six months of imprisonment, in
that said prison sentence is excessive for the purposes set forth in
[R.C.] 2929.11(A) and (B), and is not necessary to protect the
public.
[2.] The trial court abused its discretion to the prejudice of appellant
by imposing consecutive maximum sentences when consideration
of the factors in [R.C.] 2929.12 tended to favor a lesser sentence.
1. Appellant was previously sentenced to nine months of imprisonment in Ashtabula County Court of
Common Pleas case No. 2013 CR 115 for passing bad checks.
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{¶12} Ohio’s felony-sentencing scheme allows judges to exercise discretion
within established statutory bounds. State v. Ries, 11th Dist. Portage No. 2008-P-0064,
2009-Ohio-1316, ¶13, citing State v. Mathis, 109 Ohio St.3d 54 (2006), paragraph three
of the syllabus. Despite having significant latitude, sentencing courts are required to
follow statutory direction in choosing a prison term. State v. Belew, __ Ohio St.3d __,
2014-Ohio-2964, ¶10 (Lanzinger, J., dissenting).
{¶13} In 2006, based on precedent of the United States Supreme Court, the
Ohio Supreme Court struck down portions of Ohio’s sentencing statutes. See generally
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In State v. Kalish, a plurality of the
Ohio Supreme Court set forth a two-step analysis to use when reviewing felony
sentences: (1) whether the trial court adhered to all applicable rules and statutes in
imposing the sentence and (2) whether a sentence within the permissible statutory
range constitutes an abuse of discretion. 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.
{¶14} In 2009, the United States Supreme Court upheld the ability of trial court
judges to make findings of fact before imposing consecutive sentences. Oregon v. Ice,
555 U.S. 160, 163 (2009). After the United States Supreme Court’s decision in Ice, the
Ohio General Assembly passed Am.Sub.H.B. No. 86 (“H.B. 86”). H.B. 86 reflects the
General Assembly’s intent that appellate review of sentences be governed by R.C.
2953.08(G). R.C. 2953.08(G)(2) states:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not
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whether the sentencing court abused its discretion. 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.
Accordingly, this court utilizes R.C. 2953.08(G) as the standard of review in all felony
sentencing appeals.
{¶15} We begin our review of appellant’s sentence by addressing the court’s
imposition of consecutive sentences. The trial court ordered that appellant’s two, 18-
month prison sentences be served consecutively with each other, for a total of 36
months. The trial court also ordered appellant’s sentence to run consecutively to the
prison sentence that appellant was already serving.
{¶16} A court must make certain factual findings before imposing consecutive
sentences. State v. Cornelison, 11th Dist. Lake No 2013-L-064, 2014-Ohio-2884, ¶27.
Pursuant to R.C. 2929.14(C)(4), consecutive sentences may be imposed if the court
finds:
[1.] the consecutive service is necessary to protect the public from
future crime or to punish the offender; and
[2.] consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the
offender poses to the public.
{¶17} In addition, the trial court must also find that any of the following apply to
the offender being sentenced:
The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
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imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior
offense.
At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that
no single prison term for any of the offenses committed as part of
any of the courses of conduct adequately reflects the seriousness
of the offender’s conduct.
The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶18} In this case, the trial court made the findings necessary to support
imposition of consecutive sentences. At appellant’s sentencing hearing the trial court
stated that appellant has “an extensive criminal record. You have what? 23 pages here
from Ashtabula Municipal Court.” Additionally, in its judgment entry of sentence, the
trial court states it “finds that the defendant’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public.” Accordingly, we find
no error in the trial court’s findings in support of the imposition of consecutive
sentences.
{¶19} In addition to challenging the trial court’s imposition of consecutive
sentences, appellant also argues that his sentence was excessive and contrary to the
purposes of felony sentencing. A felony sentence should be reasonably calculated “to
protect the public from future crime by the offender * * * 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.” R.C.
2929.11(A). A court imposing a felony sentence is required to consider seriousness
and recidivism factors found in R.C. 2929.12. However, it is well established that a trial
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court “is not required to make findings of fact under the seriousness and recidivism
factors in R.C. 2929.12.” State v. ONeil, 11th Dist. Portage No. 2010-P-0041, 2011-
Ohio-2202, ¶34. At appellant’s sentencing hearing, the trial court stated:
The Court has considered the following sentencing factors:
pursuant to R.C. 2929(D) - - excuse me, 2929.12(B)(2), that the
victim suffered serious physical harm; pursuant to 2929.12(D)(2),
that the Defendant has a history of criminal convictions, he’s
presently serving a prison sentence; pursuant to 2929.12(D)(4), the
Defendant has a pattern of drug abuse that is related to the offense
and has previously refused treatment.
{¶20} Additionally, in its judgment entry of sentence, the trial court stated:
The Court has considered the record, oral statements, any victim
impact statement, the presentence report, the purposes and
principles of sentencing under R.C. 2929.11, the seriousness and
recidivism factors relevant to the offense and offender pursuant to
R.C. 2929.12, the overriding purposes of felony sentencing,
including protection of the public from future crime by the offender
and others and punishment of the offender, using the minimum
sanctions that the Court determines accomplish those purposes
without imposing an unnecessary burden on the state or local
government resources.
Pursuant to R.C. 2929.12(B)(2), the Court finds that the victim of
the offense suffered serious physical harm as a result of the
offense.
Pursuant to R.C. 2929.12(D)(2), the Court finds that the Defendant
has a history of criminal convictions and is presently serving a
prison sentence imposed by the Honorable Ronald W. Vettel in
Ashtabula County Court of Common Pleas Case Number 2013 CR
115.
Pursuant to R.C. 2929.12(D)(4), the Court finds that the Defendant
has demonstrated a pattern of drug abuse that is related to the
offense and the Defendant has refused treatment.
{¶21} Our review of the trial court record reveals the trial court considered the
purposes and factors of felony sentencing in R.C. 2929.11 and R.C. 2929.12 before
imposing appellant’s sentence. Accordingly, we see no error with appellant’s sentence.
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{¶22} As neither of appellant’s assignments of error are well taken, the sentence
of the Ashtabula County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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