State v. Hutchinson , 2019 Ohio 2789 ( 2019 )

[Cite as State v. Hutchinson, 2019-Ohio-2789.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-11-211
: OPINION
- vs - 7/8/2019
:
JOHN J. HUTCHINSON, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-05-0880
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Christopher Paul Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant
S. POWELL, J.
{¶ 1} Appellant, John J. Hutchinson, appeals the decision of the Butler County
Court of Common Pleas sentencing him to serve 17 months in prison after he pled guilty to
one count of assault of a peace officer. For the reasons outlined below, we affirm the trial
court's sentencing decision.
{¶ 2} On August 3, 2018, Hutchinson pled guilty to one count of assault of a peace
Butler CA2018-11-211
officer. The charges arose after Hutchinson elbowed and repeatedly punched a police
officer in the face during an altercation at a public utilities' office in the presence of both his
fiancé and his young child. After engaging Hutchinson in the necessary plea colloquy, the
trial court accepted Hutchinson's guilty plea. Upon accepting Hutchinson's guilty plea, the
trial court then sentenced Hutchinson to serve 17 months in prison with 152 days of jail-
time credit. The trial court also ordered Hutchinson to pay a fine of $500 and notified
Hutchinson he would subject to an optional postrelease control term of up to three years
upon his release from prison.
{¶ 3} Hutchinson now appeals the trial court's sentencing decision, raising the
following single assignment of error for review.
{¶ 4} THE TRIAL COURT COMMITTED ERROR WHEN IT SENTENCED MR.
HUTCHINSON TO A TERM OF 17 MONTHS IN ODRC.
{¶ 5} In his single assignment of error, Hutchinson argues the trial court erred by
sentencing him to serve 17 months in prison. We disagree.
{¶ 6} As with all felony sentences, we review the trial court's sentencing decision
under the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, this court may modify or vacate
a sentence only if, by clear and convincing evidence, "the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law."
State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence
is not 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 postrelease control, and sentences the defendant within the permissible statutory
range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. This
court may therefore "increase, reduce, or otherwise modify a sentence only when it clearly
-2-
Butler CA2018-11-211
and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the
record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at
¶ 7.
{¶ 7} Hutchinson argues the trial court's sentencing decision must be reversed
because the sentence imposed does not align with the purposes and principles of felony
sentencing. Hutchinson also argues the trial court's sentencing decision was improper
because it was not commensurate with the seriousness of his conduct. Hutchinson
supports this argument by noting the allegations set forth during mitigation that he had
suffered significant physical abuse as a child, as well as purported life-threatening injuries
after he was hit by a car in the summer of 2002. Hutchinson also notes the fact that he had
already served 152 days in jail prior to the sentencing hearing, that he showed genuine
remorse for his conduct by entering a guilty plea, and that the police officer he assaulted
was not seriously injured. Therefore, because he had been plagued by various issues
throughout his life, and because the police officer he assaulted did not suffer serious
physical harm, Hutchinson argues the trial court's sentencing decision was not supported
by the record.
{¶ 8} Contrary to Hutchinson's claim, we find nothing improper in the trial court's
sentencing decision. The trial court had discretion to determine the most effective way to
comply with the purposes and principles of sentencing set forth in section 2929.11 after
considering the serious and recidivism factors listed in R.C. 2929.12. Those purposes and
principles are (1) to protect the public from future crime by the offender and others, (2) to
punish the offender, and (3) to promote the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those purposes without imposing
an unnecessary burden on state or local government resources. The trial court properly
exercised its discretion by finding a 17-month prison sentence was the minimum sanction
-3-
Butler CA2018-11-211
necessary to accomplish those purposes and principles in light of the crime charged. This
is true despite the fact that the trial court had the option of sentencing Hutchinson to a
shorter prison term or to a period of community control.
{¶ 9} It is clear that Hutchinson disagrees with the trial court's decision in
determining the most effective way to comply with the purposes and principles of sentencing
set forth in section 2929.11. It is also clear that Hutchinson disagrees with the trial court's
analysis and balancing of the seriousness and recidivism factors in R.C. 2929.12. However,
rather than this court, it is the trial court that, "in imposing a sentence, determines the weight
afforded to any particular statutory factors, mitigating grounds, or other relevant
circumstances." State v. Steger, 12th Dist. Butler No. CA2016-03-059, 2016-Ohio-7908, ¶
18, citing State v. Stubbs, 10th Dist. Franklin No. 13AP-810, 2014-Ohio-3696, ¶ 16. The
fact that the trial court chose to weigh the various sentencing factors differently than how
Hutchinson would have liked does not mean the trial court erred in imposing Hutchinson's
sentence. State v. Liming, 12th Dist. Clermont Nos. CA2018-05-028 and CA2018-05-029,
2019-Ohio-82, ¶ 33, citing State v. Abrams, 12th Dist. Clermont Nos. CA2017-03-018 and
CA2017-03-019, 2017-Ohio-8536, ¶ 17. Hutchinson's claim otherwise lacks merit.
{¶ 10} Hutchinson also argues the trial court's sentencing decision must be reversed
because the trial court failed to give proper consideration to either the principles and
purposes of felony sentencing as set forth in R.C. 2929.11 or the serious and recidivism
factors listed in R.C. 2929.12. Hutchinson cites nothing in the record to support his
argument. See App.R. 16(A)(7) (appellant must include in his or her brief "citations to the
authorities, statutes, and parts of the record on which appellant relies"). However, even if
he did, the record indicates the trial court considered the necessary sentencing statutes
prior to issuing its sentencing decision. For instance, as the trial court stated during
Hutchinson's sentencing hearing:
-4-
Butler CA2018-11-211
Defense counsel has done a very good job in mitigating on
behalf of his client and presenting things and in construing the
statutes – the various statutes in the way most favorable to his
client. But I will just say, I'm not going to go through all of the
factors – the recidivism and the seriousness factors. But I think
that some of those have been construed in a way that I wouldn't
construe them necessarily. And I wouldn't look at them as
favorably as Defense counsel has presented those factors to
the Court.
{¶ 11} The trial court also stated:
All right. I have considered the record. I've considered the
overriding purposes of felony sentencing which are to protect
the public from future crime and to punish the offender using the
minimum sanctions needed to accomplish the purposes without
imposing an unnecessary burden on the state or local
government resources. I have considered the seriousness and
the recidivism factors set forth in the statutes. I do construe
those a little bit differently than as they were presented by
Defense counsel. I have considered the information contained
in the pre-sentence investigation report and any impact
statement. And I have seen things in writing from [the victim],
his perspective of things.
{¶ 12} The record indicates that the trial court did not specifically cite to either R.C.
2929.11 or 2929.12 prior to issuing its sentencing decision. However, as this court has
stated previously, the fact that the trial court did not expressly cite to R.C. 2929.11 and
2929.12 during the sentencing hearing is immaterial when considering the trial court cited
to both statutes within its sentencing entry. State v. Julious, 12th Dist. Butler No. CA2015-
12-224, 2016-Ohio-4822, ¶ 11. Such is the case here. As the trial court stated within its
sentencing entry:
The Court has considered the record, the charges, the
defendant's Guilty Plea, and findings as set forth on the record
and herein, oral statements, any victim impact statement and
pre-sentence report, as well as the principles and purposes of
sentencing under Ohio Revised Code Section 2929.11, and has
balanced the seriousness and recidivism factors of Ohio
Revised Code Section 2929.12 and whether or not community
control is appropriate pursuant to Ohio Revised Code Section
2929.13, and finds that the defendant is not amenable to any
available community control sanction.
-5-
Butler CA2018-11-211
Including this language in the sentencing entry "defeats a claim that the trial court failed to
consider statutory sentencing guidelines." State v. Peck, 12th Dist. Butler No. CA2015-06-
123, 2016-Ohio-1578, ¶ 9.
{¶ 13} Despite Hutchinson's claims otherwise, the trial court did not err by sentencing
Hutchinson to serve 17 months in prison after he pled guilty to assault of a peace officer.
That is to say the trial court's sentencing decision was not contrary to law or unsupported
by the record. This is particularly true here when considering Hutchinson's extensive
criminal history. This includes convictions in California for having sexual intercourse with a
minor, "oral copulation" with a person under the age of 18, and "lewd acts with a child."1
The record indicates Hutchinson then twice violated his probation resulting from these
convictions. Therefore, finding no error in the trial court's sentencing decision, Hutchinson's
single assignment of error lacks merit and is overruled.
{¶ 14} Judgment affirmed.
RINGLAND, P.J., and PIPER, J., concur.
1. Hutchinson had a number of other charged offenses in both California and New Mexico. These charges
included battery of a police officer, sex with a minor, burglary, and two counts of child abuse. For reasons
unknown, the disposition of these charges could not be discovered during the presentence investigation
conducted prior to sentencing.
-6-