State v. Sickles

[Cite as State v. Sickles, 2015-Ohio-5162.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 15 CA 012
DEVAN J. SICKLES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 14 CR 057
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 10, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEVE KNOWLING DAVID M. HUNTER
PROSECUTING ATTORNEY LAW OFFICE OF DAVID M. HUNTER
164 East Jackson Street 244 West Main Street
Millersburg, Ohio 44654 Loudonville, Ohio 44842
Holmes County, Case No. 15 CA 012 2
Wise, J.
{¶1} Appellant Devan J. Sickles appeals from his conviction and sentence, in the
Court of Common Pleas, Holmes County, for felonious assault. Appellee is the State of
Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On or about August 23, 2014, Appellant Sickles and his friend, George
Caruthers (aka Crowthers), stopped at the Glenmont Tavern, located in the southwestern
area of Holmes County. At some point during the evening, Caruthers and a tavern patron,
Josh Etzweiler, were involved in a verbal altercation. The dispute escalated into a physical
fight between Caruthers and Etzweiler outside, behind the tavern. Appellant then entered
the fray and without warning fired a single round from a rifle into Etzweiler’s back and
chest. Appellant thereupon fled to Coshocton County, where he was later apprehended.
The rifle used in the incident was also recovered. Etzweiler survived the assault.
{¶3} On September 22, 2014, appellant was indicted by the Holmes County
Grand Jury on two counts of felonious assault (each a felony of the second degree), two
counts of attempted murder (each a felony of the first degree), and one count of having a
weapon while under a disability (a felony of the third degree). Each count included a
firearm specification pursuant to R.C. 2941.145(A).
{¶4} Appellant initially pled not guilty to all counts and specifications.
{¶5} On March 18, 2015, appellant appeared before the trial court for a plea
hearing. At that time, he entered a plea of guilty to Count 2, Felonious Assault ((R.C.
Holmes County, Case No. 15 CA 012 3
2903.11(A)(2) and 2903.11(D)(1)(a)), with a firearm specification.1 The remaining four
counts were dismissed by the State.
{¶6} On May 12, 2015, the trial court sentenced appellant to the maximum term
of eight years in prison on the sole felonious assault count, to be served consecutively to
the mandatory three-year firearm specification term. See 2929.14(B)(1)(a)(ii). The trial
court also ordered, inter alia, restitution to the victim of nearly $274,000.00.
{¶7} On June 10, 2015, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:
{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE
MAXIMUM SENTENCE FOR HIS FELONY CONVICTION.”
I.
{¶9} In his sole Assignment of Error, appellant contends the trial court
erroneously sentenced him to the maximum term for the second-degree felony count of
felonious assault. We disagree.
{¶10} For several years after the Ohio Supreme Court's decision in State v. Foster
(2006), 109 Ohio St. 3d 1, 845 N.E.2d 470, we consistently held that judicial fact-finding
was not required before a trial court could impose non-minimum, maximum or
consecutive prison terms. See, e.g., State v. Williams, Muskingum App. No. CT2009–
0006, 2009–Ohio–5296, ¶ 19. Subsequently, by way of 2011 Am.Sub. H.B. No. 86, which
became effective on September 30, 2011, the General Assembly expressed its intent to
revive the statutory fact-finding provisions pertaining to the imposition of consecutive
1 The plea agreement did not include a joint sentencing recommendation. See
Sentencing Transcript at 6.
Holmes County, Case No. 15 CA 012 4
sentences that were effective pre-Foster. However, the provisions requiring findings for
“maximum” and “more than minimum” sentences that the legislature did not intend to
revive were explicitly repealed under H.B. 86. See State v. George, 5th Dist. Fairfield No.
14 CA 45, 2015-Ohio-3065, ¶ 11, citing State v. White, 1st Dist. Hamilton No. C–130114,
2013–Ohio–4225, ¶ 8. In other words, “[t]he trial court has full discretion to impose any
sentence within the authorized statutory range, and the court is not required to make any
findings or give its reasons for imposing maximum or more than minimum sentences.”
State v. King, 992 N.E.2d 491, 2013–Ohio–2021, ¶ 45 (2nd Dist.).
{¶11} Furthermore, in State v. Kalish, 120 Ohio St. 3d 23, 896 N.E.2d 124, 2008–
Ohio–4912, a plurality opinion, the Ohio Supreme Court established a two-step procedure
for reviewing a felony sentence. The first step is to “examine the sentencing court's
compliance with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first
step is satisfied, the second step requires the trial court's decision be reviewed under an
abuse-of-discretion standard. Id.
{¶12} While recognizing the approach has been rejected by some Ohio appellate
districts, we will herein utilize the Kalish framework as our standard of review in this felony
sentencing context. See State v. Bailey, 5th Dist. Ashland No. 14–COA–008, 2014–Ohio–
5129, ¶ 18–¶ 19.
{¶13} In the case sub judice, the trial court held a sentencing hearing and, as set
forth in its written entry, conducted a review and application of the purposes of sentencing
found in R.C. 2929.11 and the seriousness and recidivism factors found in R.C. 2929.12.
Holmes County, Case No. 15 CA 012 5
See Sentencing Entry, May 12, 2015, at 1-5. The court also reviewed the written
presentence investigation report (“PSI”), which is part of the present record before us.
{¶14} The trial court ultimately gave appellant an eight-year prison sentence for
the second-degree felonious assault count (the maximum term within the range allowable
under R.C. 2929.14(A)(2)), to be served consecutively to the mandatory three-year
firearm specification term. Appellant urges, inter alia, that even if his actions did not
constitute the legal defense of self-defense, his response of purportedly intervening on
behalf of his friend should have been given more weight as a mitigating factor in the
sentence. However, based on our review of the record, given inter alia that the victim,
Etzweiler, suffered serious physical harm, the existence of appellant’s prior felony drug
record (barring him from even carrying or brandishing a firearm on the night of the
assault), and the fact that his commission of the crime took place while he was out on
bond for drug trafficking in a Coshocton County case, we do not find the trial court acted
clearly and convincingly contrary to law or abused its discretion in rendering a maximum
sentence under the facts and circumstances of this case.
Holmes County, Case No. 15 CA 012 6
{¶15} Appellant's sole Assignment of Error is therefore overruled.
{¶16} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Holmes County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/d 1119