State v. Helmstetter

[Cite as State v. Helmstetter, 2013-Ohio-3982.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-07
v.
JORDAN M. HELMSTETTER, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-08
v.
JORDAN M. HELMSTETTER, OPINION
DEFENDANT-APPELLANT.
Appeals from Auglaize County Common Pleas Court
Trial Court Nos. 2011-CR-91 and 2012-CR-157
In Appeal No. 2-13-07, Appeal Dismissed
In Appeal No. 2-13-08, Judgment Affirmed
Date of Decision: September 16, 2013
APPEARANCES:
Gerald F. Siesel for Appellant
Edwin A. Pierce and R. Andrew Augsburger for Appellee
Case No. 2-13-07, 2-13-08
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jordan M. Helmstetter (“Helmstetter”) brings
these appeals from the judgments of the Court of Common Pleas of Auglaize
County sentencing him to an aggregate prison term of 78 months for convictions
in case numbers 2011-CR-91 and 2012-CR-157. Helmstetter argues that the trial
court did not properly consider and apply the sentencing guidelines set forth in
R.C. 2929.11 and R.C. 2929.12. For the reasons set forth below, the judgment in
appellate case number 2-13-08 is affirmed. The appeal taken in case number 2-13-
07 is dismissed.
{¶2} On April 29, 2011, the Auglaize County Grand Jury indicted
Helmstetter as follows: Count 1 - Drug Trafficking in violation of R.C.
2925.03(A)(1)(C)(1)(a), a felony of the fourth degree; Count 2 – Trafficking in
Marijuana in violation of R.C. 2925.03(A)(1)(C)(3)(a), a felony of the fifth
degree; Count 3 - Drug Trafficking in violation of R.C. 2925.03(A)(1)(C)(1)(b), a
felony of the fourth degree; and Counts 4 and 5 - Trafficking in Heroin in
violation of R.C. 2925.03(A)(1)(C)(6)(a), a felony of the fifth degree. The case
was assigned number 2011-CR-91. Helmstetter entered pleas of not guilty to all
counts on May 12, 2011. On June 8, 2011, Helmstetter and the State entered into
a plea agreement whereby Helmstetter would enter a plea of guilty to counts 1, 4,
and 5. The State then agreed to dismiss counts 2 and 3 of the indictment. The trial
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Case No. 2-13-07, 2-13-08
court accepted the plea agreement. A sentencing hearing was held on August 2,
2011, and the trial court placed Helmstetter on community control for a period of
five years. The terms of community control included the following restrictions.
a. During the period of the sanctions, the Defendant must
abide by the law * * *;
b. The Defendant shall neither consume nor possess any
alcoholic beverages or substances of abuse or drug
paraphernalia;
c. The Defendant shall not use, purchase, have under my (sic)
control, or be in the presence (sic) any mind altering substances
* * *;
d. The Defendant shall not visit or be present on any premises
where alcohol is served or substances of abuse or drug
paraphernalia are present;
***
j. The Defendant shall not have any contact or association
directly or indirectly with any drug users or drug traffickers.
The trial court also notified Helmstetter that if he violated the terms of the
community control, he could be ordered to serve prison terms of eighteen months
on Count I, twelve months on Count IV, and twelve months on Count V with all
sentences to be served consecutively for a total prison term of forty-two months.
{¶3} On July 17, 2012, the State filed a motion for a hearing on a violation
of community control sanctions. The supporting affidavit alleged that Helmstetter
had possessed heroin and had possessed digital scales, thus violating the terms of
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Case No. 2-13-07, 2-13-08
his community control. As a result of the above allegations, on September 7,
2012, the Auglaize County Grand Jury indicted Helmstetter on one count of
possession of heroin in violation of R.C. 2925.11(A)(C)(6)(c), a felony of the third
degree. The new indictment was assigned case number 2012-CR-157. On
January 23, 2012, Helmstetter changed his not guilty plea on the indictment to one
of guilty in exchange for a jointly recommended sentence of 24 months in prison
in case number 2012-CR-157. Helmstetter also admitted to the community control
violation in case number 2011-CR-91. In case number 2011-CR-91, the trial court
reimposed the sentence previously ordered which required Helmstetter to serve a
total prison term of 42 months. In case number 2012-CR-157, the trial court chose
to not follow the joint recommendation of Helmstetter and the State and ordered
Helmstetter to serve a prison term of thirty-six months. This sentence was ordered
to be served consecutively to the one in case number 2011-CR-91 for a total prison
term of seventy-eight months. Helmstetter appeals from this judgment and raises
the following assignment of error.
The trial court’s sentence of [Helmstetter] to a maximum
sentence of thirty-six months consecutive to a reimposed
community control violation sentence of forty-two months was
contrary to law and further constituted an abuse of discretion by
failing to properly consider and apply the sentencing guidelines
set forth in [R.C. 2929.11 and R.C. 2929.12].
{¶4} This court initially notes that the assignment of error only applies to
the sentence set forth in trial court case number 2012-CR-157, which was assigned
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Case No. 2-13-07, 2-13-08
appellate court case number 2-13-08. Appellate Rule 16 requires all briefs to
contain an assignment of error and an argument with respect to the assignment of
error. App.R. 16(A). The failure to assign an error or to argue it as required by
Appellate Rule 16 may result in the appellate court disregarding the argument and
dismissing the appeal. State v. Chilcutt, 3d Dist. Crawford Nos. 3-03-16, 3-03-17,
2003-Ohio-6705. Since no assignment of error was made and no argument was
presented in appellate case number 2-13-07, that appeal is dismissed.
{¶5} Helmstetter claims that the trial court’s imposition of the maximum
sentence is contrary to law and an abuse of discretion.
Trial courts have full discretion to impose any sentence with the
statutory range. State v. Saldana, 3d Dist. No. 12–12–09, 2013–
Ohio–1122, ¶ 20. * * * However, the trial court must still
consider the purposes of felony sentencing as set forth in R.C.
2929.11 and be guided by the sentencing factors set forth in R.C.
2929.12 and R.C. 2929.13 when determining the appropriate
sentence. Saldana at ¶ 20–21.
State v. Walton, 3d Dist. Nos. 16-12-13, 16-12-14, 2013-Ohio-2147, ¶4.
(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the
public from future crime by the offender and others 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. To
achieve those purposes, the sentencing court shall consider the
need for incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or
both.
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Case No. 2-13-07, 2-13-08
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the two overriding purposes of felony
sentencing set forth in division (A) of this section, commensurate
with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar
offenders.
R.C. 2929.11.
(B) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender’s conduct
is more serious than conduct normally constituting the offense:
(1) The physical or mental injury suffered by the victim of the
offense due to the conduct of the offender was exacerbated
because of the physical or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical,
psychological or economic harm as a result of the offense.
(3) The offender held a public office or position of trust in the
community, and the offense related to that office or position.
(4) The offender’s occupation, elected office, or profession
obliged the offender to prevent the offense or bring others
committing it to justice.
(5) The offender’s professional reputation or occupation,
elected office, or profession was used to facilitate the offense or is
likely to influence the future conduct of others.
(6) The offender’s relationship with the victim facilitated the
offense.
(7) The offender committed the offense for hire or as a part of
an organized criminal activity.
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(8) In committing the offense, the offender was motivated by
prejudice based on race, ethnic background, gender, sexual
orientation, or religion.
(9) If the offense is a violation of section 2919.25 or a violation
of section 2903.11, 2903.12, 2903.13 of the Revised Code
involving a person who was a family or household member at
the time of the violation, the offender committed the offense in
the vicinity of one or more children who are not victims of the
offense, and the offender or the victim of the offense is a parent,
guardian, custodian, or person in loco parentis of one or more of
those children.
(C) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender’s conduct
is less serious than conduct normally constituting the offense:
(1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong
provocation.
(3) In committing the offense, the offender did not cause or
expect to cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender’s
conduct, although the grounds are not enough to constitute a
defense.
(D) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as
factors indicating that the offender is likely to commit future
crimes.
(1) At the time of committing the offense, the offender was
under release from confinement before trial or sentencing, under
a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or under post-release control
pursuant to section 2967.28 or any other provision of the
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Case No. 2-13-07, 2-13-08
Revised Code for an earlier offense or had been unfavorably
terminated from post-release control for a prior offense
pursuant to division (B) of section 2967.16 or section 2929.141 of
the Revised Code.
(2) The offender previously was adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to January
1, 2002, or pursuant to Chapter 2152. of the Revised Code, or
the offender has a history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory
degree after previously being adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to January
1, 2002, or pursuant to Chapter 2152. of the Revised Code, or
the offender has not responded favorably to sanctions previously
imposed for criminal convictions.
(4) The offender has demonstrated a pattern of drug or alcohol
abuse that is related to the offense, and the offender refuses to
acknowledge that the offender has demonstrated that pattern, or
the offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
(E) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as
factors indicating that the offender is not likely to commit future
crimes:
(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the offender had led a law-
abiding life for a significant number of years.
(4) The offense was committed under circumstances not likely
to recur.
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(5) The offender shows genuine remorse for the offense.
R.C. 2929.12.
{¶6} In the assignment of error, Helmstetter claims that the trial court did
not properly consider the factors set forth in R.C. 2929.11 and R.C. 2929.12. A
review of the record indicates that the trial court did consider the factors when
imposing its sentence.
The Court has considered the record, oral statements, any
Victim Impact Statement and Pre-Sentence Report prepared, as
well as the principles and purposes of sentencing under Ohio
Revised Code §2929.11 and has balanced the seriousness and
recidivism factors under Ohio Revised Code §2929.12.
Sentencing Entry, 2-3. Further review shows that the record supports the trial
court’s conclusion to impose the maximum sentence and to order it consecutive to
that in Appellate Case Number 2-13-07. A review of the record shows that none
of the factors in 2929.12(B) that sets forth that the offense is more serious than
others apply. There was no victim, there were no injuries, and Helmstetter did not
commit his offense for hire or as a result of his occupation. As to the factors in
R.C. 2929.12(C), the trial court could determine that the factor that Helmstetter
did not expect to cause harm to persons or property as a result of the offense.
However, this does not ultimately affect the seriousness of the offense of
possession of heroin since physical harm to person or property is not an element of
the offense.
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Case No. 2-13-07, 2-13-08
{¶7} In R.C. 2929.12(D), which helps determine the likeliness of
recidivism, there are several factors which apply to Helmstetter. At the time
Helmstetter committed this offense, he was under community control sanctions for
possession of drugs and drug trafficking. Helmstetter has a prior juvenile record,
which includes a theft charge, marijuana usage, and underage possession of
controlled substances. Helmstetter also violated the terms of his probation while a
juvenile by having positive marijuana drug screens on two occasions. As an
adult, Helmstetter has received prior treatment for his drug abuse on two separate
occasions, but continues to have a drug problem. Helmstetter admitted to abusing
alcohol, marijuana, prescription drugs, cocaine, and heroin. Although he has
exhibited a willingness to enter treatment, he has not exhibited a willingness to
follow through with the treatment. There were no applicable factors set forth in
R.C. 2929.12(E), which would show an inclination to not commit future crimes, in
the record. Based upon the record before it, the trial court’s decision to impose a
maximum sentence in this case and order it to be served consecutively to a prior
sentence, was neither clearly and convincingly contrary to law nor an abuse of
discretion. The assignment of error is overruled, and the judgments are affirmed.
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Case No. 2-13-07, 2-13-08
{¶8} Having found no error prejudicial to the Appellant, the judgment of
the Court of Common Pleas of Auglaize County in case number 2-13-08 is
affirmed. The appeal in case number 2-13-07 is dismissed.
In 2-13-07, Appeal Dismissed,
In 2-13-08, Judgment Affirmed.
PRESTON, P.J. and ROGERS, J., concur.
/jlr
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