State v. Kilgour

[Cite as State v. Kilgour, 2016-Ohio-7261.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-16-04
v.
JASON RAY KILGOUR, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-16-05
v.
JASON RAY KILGOUR, OPINION
DEFENDANT-APPELLANT.
Appeals from Marion County Common Pleas Court
Trial Court Nos. 2011-CR-0212 and 2015-CR-0015
Judgment Affirmed in Case No. 9-16-05
Appeal Dismissed in Case No. 9-16-04
Date of Decision: October 11, 2016
APPEARANCES:
Nathan D. Witkin for Appellant
Kevin P. Collins for Appellee
Case Nos. 9-16-04 and 9-16-05
PRESTON, J.
{¶1} Defendant-appellant, Jason Ray Kilgour (“Kilgour”), appeals two
October 20, 2015 judgment entries of the Marion County Court of Common Pleas.
The first judgment entry, filed in trial court case No. 2011-CR-0212, revoked
Kilgour’s judicial release and reimposed the original sentence of four years in
prison. Appellate case No. 9-16-04 was assigned to that appeal. The second
judgment entry, filed in trial court case No. 2015-CR-0015, is a judgment entry of
sentence following Kilgour’s pleading guilty to one count of failure to register as a
sex offender and one count of violating a protection order. Appellate case No. 9-
16-05 was assigned to that appeal.
{¶2} On appeal, Kilgour’s assignments of error address the trial court’s
October 20, 2015 judgment entry of sentence in trial court case No. 2015-CR-0015
(appellate case No. 9-16-05). Because Kilgour has failed to raise any assignments
of error as to trial court case No. 2011-CR-0212 (appellate case No. 9-16-04) as
required by App.R. 16(A)(3), we dismiss appellate case No. 9-16-04 for want of
prosecution. State v. Frazier, 3d Dist. Shelby No. 17-11-06, 2013-Ohio-142, ¶ 12,
citing State v. Harshman, 3d Dist. Seneca Nos. 13-12-02, 13-12-03, and 13-12-14,
2012-Ohio-3901, ¶ 6, citing State v. Matthieu, 3d Dist. Mercer Nos. 10-02-04 and
10-02-05, 2003-Ohio-3430, ¶ 10. As to appellate case No. 9-16-05, concerning trial
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court case No. 2015-CR-0015, we affirm the judgment of the trial court for the
reasons that follow.
{¶3} On January 15, 2015, the Marion County Grand Jury indicted Kilgour
on: Count One of vandalism in violation of R.C. 2909.05(B)(1)(a), a fifth-degree
felony; Count Two of vandalism in violation of R.C. 2909.05(B)(1)(b), a fifth-
degree felony; Count Three of failure to register as sex offender in violation R.C.
2950.05(A), a third-degree felony; and Count Four of failure to register as sex
offender in violation of R.C. 2950.05(B), a third-degree felony. (Doc. No. 1).
{¶4} On January 20, 2015, Kilgour entered pleas of not guilty to the counts
of the indictment. (Doc. No. 5).
{¶5} On January 29, 2015, the State filed a supplemental indictment charging
Kilgour with: Count Five of burglary in violation of R.C. 2911.12(A)(2), a second-
degree felony; Count Six of theft in violation of R.C. 2913.02(A)(1), a fourth-degree
felony; and Count Seven of violating a protection order in violation of R.C.
2919.27(A)(2), a fifth-degree felony. (Doc. No. 11).
{¶6} On February 2, 2015, Kilgour entered pleas of not guilty to the counts
of the supplemental indictment. (Doc. No. 16).
{¶7} On August 26, 2015, Kilgour and the State entered into a plea
agreement. (Doc. No. 56). Under the agreement, Kilgour entered pleas of guilty to
Counts Four and Seven, and the trial court accepted his guilty pleas. (Id.); (Doc.
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No. 61). On the State’s recommendation, the trial court entered a nolle prosequi as
to the remaining counts—Counts One, Two, Three, Five, and Six—and dismissed
them. (Id.); (Id.).
{¶8} The trial court held a sentencing hearing on October 14, 2015. (Doc.
No. 61). The trial court sentenced Kilgour to 18 months in prison as to Count Four
and to 12 months in prison as to Count Seven, to be “served consecutively to each
other, and consecutively to the sentence imposed in Marion County Common Pleas
Court Case #11-CR-212.” (Id.). The trial court filed its judgment entry of sentence
on October 20, 2015. (Id.).
{¶9} On February 17, 2016, Kilgour filed a notice of appeal.1 (Doc. No. 54).
He raises two assignments of error for our review, which we address together.
Assignment of Error No. I
The sentence in this matter is clearly and convincingly contrary
to R.C. 2929.11 and R.C. 2929.12.
Assignment of Error No. II
The sentence in this matter is clearly and convincingly contrary
to the requirement that sentences be determined based on each
separate offense.
{¶10} In this appeal, Kilgour challenges only his 18-month sentence for his
failure-to-register-as-sex-offender conviction. In his first assignment of error,
1
This court granted Kilgour’s motion for leave to file a delayed appeal under App.R. 5(A).
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Case Nos. 9-16-04 and 9-16-05
Kilgour argues that R.C. 2929.11 and 2929.12 “do not support a sentence of
eighteen (18) months,” out of a possible 36 months, for Kilgour’s failure-to-register-
as-sex-offender conviction under R.C. 2950.05(B). (Appellant’s Brief at 4).
Kilgour also argues that an 18-month prison sentence “was not a minimum sanction
[under R.C. 2929.11(A)] considering that [Kilgour] reported his change of address
to his Probation Officer.” (Id. at 5). He argues that “[a]ll of the seriousness and
recidivism factors [under R.C. 2929.12] that were discussed by the State and counsel
for Defendant focused on the conviction for Violation of a Protection Order.” (Id.).
In his second assignment of error, Kilgour argues that “the record indicates that this
sentence was elevated because of the other offenses, many of which were
dismissed.” (Id.). We reject Kilgour’s arguments.
{¶11} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, ___ Ohio St.3d ___, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’”
Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three
of the syllabus.
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{¶12} Kilgour concedes that his 18-month sentence for his failure-to-
register-as-sex-offender conviction is within the statutory range. See State v.
Magallanes, 3d Dist. Putnam No. 12-14-02, 2014-Ohio-4878, ¶ 23 (“Magallanes’s
sentence was within the statutory range. Therefore, Magallanes’s sentence was not
contrary to law.”), citing State v. Toler, 3d Dist. Auglaize No. 2-13-18, 2013-Ohio-
5084, ¶ 19. Kilgour essentially argues that the trial court failed to satisfy R.C.
2929.11 and 2929.12 and that his 18-month sentence for his failure-to-register-as-
sex-offender conviction was based on the trial court’s consideration of other
offenses, including dismissed charges.
{¶13} When sentencing an offender, the trial court must consider the overall
purposes of sentencing under R.C. 2929.11 and the factors relating to the
seriousness of the offense and recidivism of the offender under R.C. 2929.12.
Magallanes at ¶ 21, citing State v. Smith, 3d Dist. Auglaize No. 2-06-37, 2007-Ohio-
3129, ¶ 26, citing State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, ¶ 38.
“Although it is required to consider R.C. 2929.11 and 2929.12, the trial court is not
required to use specific language regarding its consideration of those statutes.” Id.,
citing Smith at ¶ 26 and State v. Fletcher, 3d Dist. Auglaize No. 2-13-02, 2013-
Ohio-3076, ¶ 22.
{¶14} A review of the record indicates that the trial court considered R.C.
2929.11 and 2929.12 in sentencing Kilgour. In sentencing Kilgour, the trial court
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stated that it “considered the general factors required by the Ohio Revised Code in
determining sentence to be imposed and having further considered the specific facts
of this case and the Defendant’s circumstances.” (Oct. 14, 2015 Tr. at 23-24). See
Magallanes at ¶ 22. In its judgment entry of sentence, the trial court stated, “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 R.C. 2929.11, and the appropriate factors under R.C. 2929.12.” (Doc. No.
61). See Magallanes at ¶ 22. These statements demonstrate that the trial considered
R.C. 2929.11 and 2929.12 as required. See State v. Parson, 3d Dist. Auglaize No.
2-10-27, 2011-Ohio-168, ¶ 16.
{¶15} Furthermore, the trial court noted that Kilgour “committed the
offenses * * * while under a community control sanction.” (Doc. No. 61). The
record reflects that Kilgour has a criminal history with multiple convictions dating
to 2000. (See Oct. 14, 2015 Tr. at 4-5); (Presentence Investigation Report). See
Parson at ¶ 16; Magallanes, 2014-Ohio-4878, at ¶ 22. This criminal history was
part of the “Defendant’s circumstances” considered by the trial court. Contrary to
Kilgour’s argument, the trial court, when sentencing him on his failure-to-register-
as-sex-offender conviction, was allowed to consider other offenses committed by
Kilgour and the counts dismissed under the plea agreement. See State v. Ford, 3d
Dist. Union No. 14-10-07, 2010-Ohio-4069, ¶ 12 (“[E]vidence of other crimes,
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Case Nos. 9-16-04 and 9-16-05
including crimes that never result in criminal charges being pursued, or criminal
charges that are dismissed as a result of a plea bargain, may be considered at
sentencing.” (Emphasis deleted.)), citing State v. Starkey, 7th Dist. Mahoning No.
06 MA 110, 2007-Ohio-6702, ¶ 17, citing State v. Cooey, 46 Ohio St. 3d 20, 35
(1989). We also note—as Kilgour concedes—that his sentence for his failure-to-
register-as-sex-offender conviction was half of the maximum sentence allowed
under the law. See State v. Richards, 3d Dist. Union No. 14-15-27, 2016-Ohio-
1293, ¶ 11. Finally, we note that Kilgour relies on the content of the State’s
counsel’s and his counsel’s statements at the sentencing hearing—not anything the
trial court said or wrote—in arguing that the trial court erred. We reject Kilgour’s
attempt to substitute his words for the trial court’s. See State v. King, 70 Ohio St. 3d
158, 162 (1994) (“It is axiomatic that ‘[i]n Ohio a court speaks through its
journal.’”), quoting State ex rel. Worcester v. Donnellon, 49 Ohio St. 3d 117, 118
(1990).
{¶16} For the reasons above, we cannot conclude by clear and convincing
evidence that the record does not support the trial court’s findings under relevant
statutes or that the sentence is otherwise contrary to law.
{¶17} Kilgour’s first and second assignments of error are overruled.
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{¶18} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued in appellate case No. 9-16-05, we affirm the
judgment of the trial court.
Judgment Affirmed in Case No. 9-16-05;
Appeal Dismissed in Case No. 9-16-04
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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