State v. Pyle , 2021 Ohio 1075 ( 2021 )

[Cite as State v. Pyle, 2021-Ohio-1075.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-20-023
Appellee Trial Court No. 20 CR 28
v.
Trevor A. Pyle DECISION AND JUDGMENT
Appellant Decided: March 31, 2021
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Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.
Brett A. Klimkowsky, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Trevor Pyle, appeals the judgment of the Sandusky County Court
of Common Pleas, convicting him of one count of unlawful sexual conduct with a minor
and one count of attempted unlawful sexual conduct with a minor, and sentencing him to
a total prison term of 30 months. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On January 13, 2020, the Sandusky County Grand Jury returned a four-count
indictment, charging appellant with one count of rape in violation of R.C. 2907.02(A)(2),
a felony of the first degree, one count of unlawful sexual conduct with a minor in
violation of R.C. 2907.04(A), a felony of the fourth degree, one count of abduction in
violation of R.C. 2905.02(B), a felony of the second degree, and one count of attempted
sexual conduct with a minor in violation of R.C. 2923.02(A) and 2907.04(A), a felony of
the fifth degree.
{¶ 3} On May 11, 2020, appellant withdrew his initial plea of not guilty, and
entered a plea of guilty to the count of unlawful sexual conduct with a minor, and the
count of attempted sexual conduct with a minor. In exchange, the state agreed to dismiss
the remaining charges.
{¶ 4} In reciting the operative facts, the state described that on or about June 28,
2018, appellant—who was then 21 years old—put his hand inside the pants of a 13-year-
old girl and placed his finger inside of her vagina. Additionally, on or around
November 30, 2015, appellant—then 18 years old—attempted to engage in sexual
conduct with a 14-year-old girl.
{¶ 5} Following a detailed Crim.R. 11 plea colloquy, the trial court accepted
appellant’s plea and found him guilty. The court then referred the matter for preparation
of a presentence investigation report.
2.
{¶ 6} At the sentencing hearing on June 8, 2020, appellant’s counsel spoke in
mitigation. Counsel stated that appellant was a young man who desired a chance to
receive treatment for the drug and mental health problems that he faced. In addition,
counsel noted that appellant has family support and available employment, and that he
would be willing to follow any of the conditions of community control.
{¶ 7} After receiving counsel’s statement in mitigation, and hearing a statement
from the father of one of the victims, the trial court imposed its sentence. The court
noted that it considered the statements made, as well as the presentence investigation
report. The court also noted that it considered the principles and purposes of sentencing
in R.C. 2929.11, and the seriousness and recidivism factors in R.C. 2929.12. The court
remarked on the age of the victims, the nature of the offenses, and the fact that in the
2015 incident appellant brandished a gun as reported in the presentence investigation
report. Additionally, the court examined appellant’s criminal history and found that his
level of activity was increasing, not decreasing. Finally, the court noted that appellant
has been on community control and probation in other cases as a juvenile and as an adult,
and has consistently violated the terms imposed.
{¶ 8} Thus, the trial court ordered appellant to serve 18 months in prison on the
count of unlawful sexual conduct with a minor, and 12 months in prison on the count of
attempted sexual conduct with a minor. The court further ordered those sentences to be
served consecutively for a total prison term of 30 months. The trial court found that
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consecutive sentences were necessary, making the requisite findings under R.C.
2929.14(C)(4).
{¶ 9} At the close of the sentencing hearing, the trial court stated that it thought it
was a “fairly harsh sentence,” but that the circumstances called for a maximum sentence.
The court remarked that it thought appellant was “headed down a bad road,” and “the
time spent will be time that he can use to change if he chooses to do so. That will be up
to him.”
II. Assignment of Error
{¶ 10} Appellant has timely appealed his judgment of conviction, and now asserts
one assignment of error for our review:
1. The Trial Court’s sentence of Trevor A. Pyle (“Appellant”) is
excessive and contrary to Ohio law.
III. Analysis
{¶ 11} In his assignment of error, appellant argues that the trial court did not
impose the minimum sentence that would effectively rehabilitate him as required by R.C.
2929.11. Appellant reiterates his argument from before the trial court that he is a young
man who strongly desires to pursue treatment for his substance abuse and mental health
issues. He asserts that he has family support, a place to live, and the opportunity for
employment. Appellant concludes that his 30-month maximum sentence was “fairly
harsh,” and that a lesser sentence would better promote his effective rehabilitation.
4.
{¶ 12} At the outset, we note that the lead opinion in State v. Gwynne, 158 Ohio
St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16-18, recognized that R.C.
2953.08(G)(2)(a) is the “exclusive means of appellate review of consecutive sentences,”
and that R.C. 2929.11 and 2929.12 are not applicable to a review of consecutive
sentences. Therefore, “[w]here the appellant challenges the trial court’s imposition of
consecutive sentences, we are bound to review the issue under R.C. 2953.08(G)(2)(a),
and must affirm the trial court unless we clearly and convincingly find ‘[t]hat the record
does not support the sentencing court’s findings under division * * * (C)(4) of section
2929.14.’” State v. Taylor, 6th Dist. Wood No. WD-19-009, 2020-Ohio-404, ¶ 14,
quoting R.C. 2953.08(G)(2)(a).
{¶ 13} In this case, appellant does not challenge the trial court’s findings under
R.C. 2929.14(C)(4). Furthermore, we believe that the record supports the trial court’s
findings under R.C. 2929.14(C)(4) such that we cannot clearly and convincingly find
otherwise. In particular, the young age of the victims, the presence of a gun at one of the
incidents, appellant’s increasing criminal behavior, and his failure to comply with the
terms of probation and community control support the trial court’s conclusion that
consecutive sentences are necessary to protect the public from future crime, that
consecutive sentences are not disproportionate to the seriousness of the conduct, and that
the harm caused by two or more of the multiple offenses was so great or unusual that no
single prison term adequately reflects the seriousness of appellant’s conduct. Therefore,
we hold that the trial court did not err when it imposed consecutive sentences.
5.
{¶ 14} Furthermore, even if we applied appellant’s arguments to the length of his
individual prison sentences, R.C. 2953.08(G)(2) does not grant us authority to consider
the trial court’s application of the principles and purposes of sentencing found in R.C.
2929.11.
{¶ 15} R.C. 2953.08(G)(2) allows us to “increase, reduce, or otherwise modify a
sentence,” or “vacate the sentence and remand the matter to the sentencing court for
resentencing” if we clearly and convincingly find either “(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,” or “(b) That the sentence is otherwise
contrary to law.”
{¶ 16} As to the first prong under R.C. 2953.08(G)(2)(a), we have already
discussed the trial court’s findings under R.C. 2929.14(C)(4), and appellant does not
argue that any of the other enumerated sections apply.
{¶ 17} Thus, we are left to examine whether the sentences are clearly and
convincingly “otherwise contrary to law” as provided for in R.C. 2953.08(G)(2)(b).
{¶ 18} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425,
¶ 15, we recognized that State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, abrogated by State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, still can provide guidance for determining whether a sentence is clearly and
convincingly contrary to law. Tammerine at ¶ 15. The Ohio Supreme Court in Kalish
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held that where the trial court expressly stated that it considered the purposes and
principles of sentencing in R.C. 2929.11 as well as the factors listed in R.C. 2929.12,
properly applied postrelease control, and sentenced the defendant within the statutorily
permissible range, the sentence was not clearly and convincingly contrary to law. Kalish
at ¶ 18.
{¶ 19} In this case, the record reflects that the trial court expressly considered R.C.
2929.11 and 2929.12, properly applied postrelease control, and sentenced appellant
within the statutory range. Thus, appellant’s sentences are not clearly and convincingly
contrary to law.
{¶ 20} In State v. Taylor, 6th Dist. Wood No. WD-19-009, 2020-Ohio-404, we
relied on Marcum to take the analysis one step further, and stated “if the term is not
otherwise contrary to law, we may vacate or modify the term only if we find by ‘clear
and convincing evidence that the record does not support the sentence’ upon
consideration of R.C. 2929.11 and 2929.12.” Taylor at ¶ 15, quoting Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. To that end, appellant’s entire
argument on appeal is that the trial court’s sentence was not the minimum sentence that
would effectively rehabilitate him as provided for under R.C. 2929.11(A).
{¶ 21} However, in State v. Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 42, the
Ohio Supreme Court relegated the language in Marcum to dicta, and clarified that
“[n]othing 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
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sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” Consequently,
we may not consider appellant’s sentences as they relate to the trial court’s application of
R.C. 2929.11.
{¶ 22} Therefore, because the trial court’s findings under R.C. 2929.14 are not
clearly and convincingly unsupported by the record, and because appellant’s sentences
are not otherwise clearly and convincingly contrary to law, appellant’s sentences must be
upheld.
{¶ 23} Accordingly, appellant’s assignment of error is not well-taken.
IV. Conclusion
{¶ 24} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Sandusky County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
8.
State v. Pyle
C.A. No. S-20-023
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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