State v. Hackathorn

[Cite as State v. Hackathorn, 2023-Ohio-410.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-064
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
ANDREW M. HACKATHORN,
Trial Court No. 2022 CR 000349
Defendant-Appellant.
OPINION
Decided: February 13, 2023
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Jamie R. Eck, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Andrew Hackathorn, appeals his sentence after entering a plea
of guilty to Theft from a Person of a Protected Class, a third-degree felony, in violation of
R.C. 2913.02(A)(3). For the following reasons, we affirm the judgment of the Lake County
Court of Common Pleas.
{¶2} On May 3, 2022, Appellant plead guilty to Theft from a Person of a Protected
Class after intentionally deceiving an elderly woman into giving him approximately
$72,000.00.
{¶3} On June 15, 2022, the court held a sentencing hearing. Appellant
expressed his remorse and explained that his drug addiction caused him to behave the
way he had. Appellant asked for community control instead of imprisonment so he could
treat his drug addiction. The prosecutor objected to sentencing Appellant to community
control and, with reference to the pre-sentence investigation, noted that Appellant had
been a drug addict for thirty years, started NEOCAP in 2010, and since then has also
tried the drug suboxone to stop his addiction, attended multiple twelve-step meetings,
and, in 2018, for an unrelated crime, the court sentenced him to community control, which
included treatment for his drug addiction. Each attempt at treatment had been
unsuccessful and Appellant continued his addiction. The court then stated that it
considered all aspects of R.C. 2929.11 and 2929.12, and sentenced Appellant to thirty-
six months imprisonment.
{¶4} Appellant timely appeals and raises one assignment of error.
{¶5} Assignment of error: The trial court erred by sentencing the defendant-
Appellant to the maximum prison term of thirty-six months, as the trial court’s findings with
respect to R.C. 2929.11 and 2929.12 were unsupported by the record and contrary to
law.
{¶6} Our standard of review for felony sentencing is provided by R.C.
2953.08(G)(2):
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 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:
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(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.
{¶7} The Ohio Supreme Court has explained the application of R.C.
2953.08(G)(2) in relation to R.C. 2929.11 and 2929.12 in State v. Jones, 163 Ohio St.3d
242, 2020-Ohio-6729, 169 N.E.3d 649. First, the Court held that R.C. 2953.08(G)(2)(a)
does not allow an appellate court to vacate a sentence based on “lack of support in the
record for a trial court's findings under R.C. 2929.11 and .12” because neither of those
sections is enumerated within division (G)(2)(a) of the statute, and, more fundamentally,
neither statute requires the court to make “findings.” Id. at ¶ 29, ¶ 31. The Court
reasoned, “[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 sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”
Id. at ¶ 42.
{¶8} When sentencing, a “trial court is not required to give any particular weight
or emphasis to a given set of circumstances; it is merely required to consider the statutory
factors in exercising its discretion.” State v. Delmanzo, 11th Dist. Lake No. 2007-L-218,
2008-Ohio-5856, ¶ 23. A sentencing court fulfills its duty when it states that it has
considered the factors under R.C. 2929.11 and R.C. 2929.12. State v. DeLuca, 11th Dist.
Lake No. 2020-L-089, 2021-Ohio-1007, ¶ 18.
{¶9} Appellant first contends that his sentence is contrary to law because it was
not reasonably calculated to achieve the three overriding purposes of felony sentencing
under R.C. 2929.11(A).
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{¶10} R.C. 2929.11(B) mandates that a sentencing court shall sentence an
offender to a sentence that is reasonably calculated to achieve the three overriding
purposes of felony sentencing listed under R.C. 2929.11(A). Those three purposes are
to protect the public from future crime by the offender and others, to punish the offender,
and to promote the effective rehabilitation of the offender. R.C. 2929.11(A).
{¶11} Appellant specifically asserts that his sentence was only reasonably
calculated to punish him, but does nothing to promote his rehabilitation or to protect the
public from future crime by him.
{¶12} The sentencing court stated at the sentencing hearing and journalized on
the judgment entry that it considered all aspects of R.C. 2929.11 and 2929.12. On this
appeal, Appellant does not demonstrate nor does he articulate any basis why his
sentence is not reasonably calculated to achieve the three overriding purposes of felony
sentencing. Appellant’s only support for his argument is that “the only purpose of felony
sentencing that the court appears to be guided by is the need for punishment.” We
decline to form an argument on his behalf why his sentence is or is not reasonably
calculated to achieve all three overriding purposes of felony sentencing.
{¶13} Appellant next asks this court to independently weigh the seriousness and
recidivism factors under R.C. 2929.12 because the sentencing court did not consider his
remorse or that he took full responsibility for his actions.
{¶14} An appellate court is without authority to independently weigh mitigating
factors under R.C. 2929.12. Jones, supra, at ¶ 42. The sentencing court here fulfilled its
duty by stating at sentencing and in its judgment entry that it considered all factors under
R.C. 2929.11 and R.C. 2929.12.
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{¶15} Appellant’s assignment of error is without merit.
{¶16} The judgment of the Lake County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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