[Cite as State v. Sapper, 2018-Ohio-570.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      28696

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CARL E. SAPPER                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2016-12-4271

                                  DECISION AND JOURNAL ENTRY

Dated: February 14, 2018



        SCHAFER, Presiding Judge.

        {¶1}     Defendant-Appellant, Carl Sapper, appeals the judgment of the Summit County

Court of Common Pleas. For the reasons that follow, we affirm.

                                                 I.

        {¶2}     This matter arises from a hit/skip accident involving a pedestrian. The Barberton

Police and the Barberton Fire Department were dispatched to the scene of the accident where

they found the pedestrian, S.H, unconscious and not breathing. Emergency personnel began

treatment and subsequently transported S.H. to the hospital. S.H. ultimately died from his

injuries. Following a detailed investigation, the police located the vehicle involved in the

hit/skip and identified Sapper as the driver.

        {¶3}     The Summit County Grand Jury subsequently indicted Sapper for hit/skip, in

violation of R.C. 4549.02, a felony of the third degree. Sapper ultimately pleaded guilty to the

charges and after the completion of a presentence investigation and a victim impact statement,
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the trial court sentenced Sapper to a maximum term of three years imprisonment with three years

of mandatory post release control and a three year driver’s license suspension.

       {¶4}    Sapper filed this timely appeal, raising one assignment of error for our review.

                                                II.

                                      Assignment of Error

       The trial court abused its discretion by imposing a maximum prison
       sentence.

       {¶5}    In his sole assignment of error, Sapper contends that the trial court abused its

discretion by imposing a maximum sentence. Specifically, Sapper argues that the trial court

abused its discretion by failing to follow the recommendation contained in the presentence

investigation report since he only had one prior felony conviction for non-support of dependents,

three misdemeanors, a number of traffic offenses, was not under supervision at the time of the

offense, and showed genuine remorse for his actions. We disagree.

       {¶6}    In reviewing a felony sentence, “[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “An appellate court

may vacate or modify a felony sentence on appeal only if it determines by clear and convincing

evidence” that (1) “the record does not support the trial court’s findings under relevant statutes,”

or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 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.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶7}    The Supreme Court of Ohio has held that “[t]rial courts have full discretion to

impose a prison sentence within the statutory range and are no longer required to make findings

or give their reasons for imposing maximum * * * sentences.” State v. Foster, 109 Ohio St.3d 1,
                                                  3


2006-Ohio-856, paragraph seven of the syllabus. “[W]here the trial court does not put on the

record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is

presumed that the trial court gave proper consideration to those statutes.” (Alterations sic.) State

v. Steidl, 9th Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, fn. 4. “Unless the record shows that the court failed to

consider the factors, or that the sentence is ‘strikingly inconsistent’ with the factors, the court is

presumed to have considered the statutory factors if the sentence is within the statutory

range.” State v. Fernandez, 9th Dist. Medina No. 13CA0054-M, 2014-Ohio-3651, ¶ 8,

quoting State v. Boysel, 2d Dist. Clark No. 2013-CA-78, 2014-Ohio-1272, ¶ 13.

       {¶8}    In this case, there is no dispute that the trial court’s sentence falls within the

statutory sentencing range. See R.C. 2929.14(A)(3)(b) (setting forth a range of nine to thirty-six

months for certain third-degree felonies). At the sentencing hearing, the trial court stated that it

had read the presentence investigation report. The trial court then heard from the victim’s

parents, the prosecutor, Sapper’s trial counsel, and Sapper himself. A review of the transcript

from the hearing shows that the trial court specifically addressed the application of the relevant

sentencing factors and stated that the only sentencing factor that seemed to weigh in Sapper’s

favor was remorse. Nonetheless, the trial court noted that Sapper did not take responsibility for

his actions until after he was arrested despite knowing almost immediately after the accident that

he had hit a person and further noting the “extraordinary efforts” Sapper went to conceal what

had happened. The trial court then stated that “in looking through all of the sentencing factors *

* * that the sentence to be imposed in this case is three years.” Likewise, in its sentencing entry,

the trial court stated that it had considered the record, statements of counsel, as well as the
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principles and purposes of sentencing pursuant to R.C. 2929.11 and the seriousness and

recidivism factors under R.C. 2929.12.

       {¶9}    Upon review of the record, we cannot find by clear and convincing evidence that

it does not support the three year maximum prison sentence imposed by the court. See Marcum,

2016-Ohio-1002 at ¶ 23. Sapper’s assignment of error is overruled.

                                                III.

       {¶10} Sapper’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
