State v. Witt

2017 Ohio 7441

STATE OF OHIO, PLAINTIFF-APPELLEE, v. STEPHEN C. WITT, DEFENDANT-APPELLANT.

CASE NO. 2-17-09

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

September 5, 2017

OPINION

Appeal from Auglaize County Common Pleas Court

Trial Court No. 2016-CR-159

Judgment Affirmed

APPEARANCES:

James F. Hearn, Jr. for Appellant

R. Andrew Augsburger for Appellee

WILLAMOWKSI, J.

{¶1} Defendant-appellant Stephen C. Witt ("Witt") appeals the judgment of the Auglaize County Court of Common Pleas, alleging that the trial court abused its discretion in ordering Witt to serve the maximum sentence allowed under the law for the crime of fleeing the scene of an accident that resulted in serious injury. For the reasons set forth below, the judgment of the lower court is affirmed.

Facts and Procedural History

{¶2} On June 25, 2016, Witt was charged with an OVI violation in Miami County, Ohio. Sentencing Tr. 5. Witt was arraigned on this charge on June 27, 2016 and was released on his own recognizance. Id. While Witt was out on bond on the Miami County OVI charge, he was involved in a motor vehicle accident on July 2, 2016 in Auglaize County, Ohio. Doc. 1. In this incident, Witt, while driving his vehicle, struck a parked minivan and two pedestrians standing outside of the minivan. Plea Change Hearing Tr. 23. Both pedestrians suffered injuries. Id. Witt fled the scene of the accident prior to the arrival of law enforcement. Id. This incident in Auglaize County is the subject of this case. Roughly an hour after this accident, on July 2, 2016, the Lima Police came upon Witt in Allen County, Ohio. Ex. A. Witt was sitting in his vehicle, which was parked at a green light at an intersection. Id. The police determined that Witt was operating a vehicle while impaired and cited him accordingly. Id. This citation is the basis of a separate casein Allen County that was ongoing at the time of the present case from Auglaize County. Plea Change Hearing Tr. at 24.

{¶3} Three days after the accident in Auglaize County, on July 5, 2016, Witt was involved in another accident in Delaware County. Sentencing Tr. 6. This accident gave rise to yet another OVI charge against Witt in Delaware County. Id. Ex. A. Witt suffered serious injuries in the Delaware County accident, was hospitalized, and sent to a nursing home in the Dayton area for recovery. Sentencing Tr. 12-13. On September 29, 2016, while Witt was still in the nursing home, he was indicted in Auglaize County on two counts of fleeing the scene of an accident that resulted in serious physical harm in violation of R.C. 4549.02(A). Doc. 1. See R.C. 4549.02(B)(2)(a). On the same date, an arrest warrant for Witt was also issued in Auglaize County. Doc. 6. In October of 2016, Witt was involved in an altercation at the nursing home, which led the nursing home staff to call the police. Sentencing Tr. at 12-13. After the police officers arrived at the nursing home, they discovered the arrest warrant for Witt that had previously been issued from Auglaize County. Id. The police then arrested Witt. Id.

{¶4} On January 6, 2017, Witt accepted a plea agreement in which the second charge filed against him would be dropped and in which he would plead guilty to one count of fleeing the scene of an accident. Doc. 30. On January 6, 2017, the trial court accepted Witt's guilty plea but delayed sentencing until a presentence investigation could be conducted. Doc. 31. During the presentence investigation("PSI"), Witt told the PSI writer that he had no intention of following any orders given to him by the trial court if he were placed on community control. Sentencing Tr. 4-5.

{¶5} On March 8, 2017, the trial court held Witt's sentencing hearing. Id. at 1. Defense counsel argued that the four and a half months that Witt spent in jail prior to this hearing was sufficient punishment, that no further prison term was necessary for this offense, and that Witt should merely be placed on community control. Id. at 9. The prosecution argued that Witt should serve more jail time. Id. at 4. The prosecutor pointed to the comments that Witt made during the PSI and argued, on the basis of Witt's own statements, that community control was insufficient to address Witt's conduct. Id. at 4-5.

{¶6} The prosecutor also referenced the three outstanding warrants for Witt's arrest that had been issued from Miami County, Allen County, and Delaware County over Witt's OVI charges in each of those counties. Id. at 5-7. The trial court discussed these charges, considering the fact that all of these incidents occurred within a very short time frame. Id. at 6. The prosecutor stated that further action on these three charges had not been taken since the proceedings began against Witt in Auglaize County. Id. at 5. The trial court also noted that the accident in Auglaize County occurred while Witt was out on bond for the Miami County charge and that Witt did not appear for his arraignment or a pretrial conference on his Delaware County OVI charge. Id. at 7. {¶7} Towards the end of the hearing, the trial court read from a report from the nursing home where Witt was recovering from his injuries received in the Delaware County crash. Id. at 12-13. The report read, in its relevant part, as follows:

He [Witt] used racially charged language, derogatory remarks, cursing and often yelling at staff and other residents. * * * After his behavior continued after repeated warnings, Doctor Patel discharged the offender for almost daily verbal abuse and leaving the facility when he became angry, refusing the follow the rules. When he was told he was being discharged, he began hitting objects with rage and the Administrator called Centerville police again to escort him from the facility. When police arrived, his warrant for Auglaize County surfaced and he was arrested * * *.

Id. After going through the history of this case, the trial court gave Witt the maximum sentence of one year in prison in addition to post-release control. Doc. 40. Witt filed notice of appeal on March 31, 2017. Doc. 64.

Assignment of Error

{¶8} In this appeal, Witt raises the following assignment of error:

The trial court's sentences the maximum allowed by law of defendant-appellant was unsupported by the record and was contrary to law and further constitutes an abuse of discretion in failing to properly follow the felony sentencing guidelines set forth in Ohio Revised Code 2929.11 and 2929.12.

In his brief, Witt argues that the trial court did not comply with the statutory requirements governing the sentencing process and, in so doing, abused itsdiscretion in ordering Witt to serve the maximum sentence for the crime of fleeing the scene of an accident.¹ See R.C. 2929.11 and R.C. 2929.12.

{¶9} In support of this claim, Witt points to the trial court's mention of an altercation involving Witt at the nursing home and argues that it was inappropriate for the trial court to consider these facts as Witt was not charged or convicted of a crime in relation to this incident. Witt also points to the factors in R.C. 2929.12(B) that are used to determine whether "the offender's conduct is more serious than conduct normally constituting the offense" and argues that many of the factors do not apply in his case, indicating that his conduct was not sufficiently serious to warrant the maximum sentence. R.C. 2929.12(B). We, however, do not find these arguments to be persuasive.

Legal Standard

{¶10} "The 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. Dayton, 3d Dist. Union No. 14-16-05, 2016-Ohio-7178, ¶ 15, quoting State v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26-27, quoting, State v. King, 2d Dist. Clark Nos. 2012-CA-25 and 2012-CA-26, 2013-Ohio-2021, ¶ 45.See State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 8 (holding "that trial courts have full discretion to impose a prison sentence within the statutory range without the mandatory findings."). However, R.C. 2929.11(A) does require courts, in the process of sentencing offenders for felonious conduct, to "be guided by the overriding purposes of felony sentencing." R.C. 2929.11(A).

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.

Id. In this determination, "the trial court must comply with all applicable rules and statutes * * *. State v. Wells, 2015-Ohio-3511, 41 N.E.3d 216, ¶ 22 (2d Dist.), quoting State v. Eicholtz, 2d Dist. Clark No. 2012-CA-7, 2013-Ohio-302, ¶ 53. Further, a sentence for a felonious crime must be "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).

{¶11} "Although the trial court must consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C. 2929.12, the sentencing court is not required to '[s]tate on the record that it considered the statutory criteria or discuss[ed] them.'" State v. Kegley, 3d Dist.Crawford No. 3-16-06, 2016-Ohio-8467, ¶ 20, quoting State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 32, quoting State v. Polick, 101 Ohio App.3d 428, 431, 655 N.E.2d 820, 822 (4th Dist.1995). A "trial court has full discretion to impose any sentence within the...