[Cite as State v. Butler, 2020-Ohio-606.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                        Court of Appeals No. WD-19-011

        Appellee                                     Trial Court No. 2018CR0342

v.

Cameron Butler                                       DECISION AND JUDGMENT

        Appellant                                    Decided: February 21, 2020

                                              *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****

        MAYLE, J.

                                            Introduction

        {¶ 1} Defendant-appellant, Cameron Butler, appeals the December 26, 2018

judgment of the Wood County Court of Common Pleas. The trial court sentenced Butler

to a prison term of 17 months following his assault conviction. On appeal, Butler alleges
that the trial court, in imposing a prison term, failed to comply with the principles and

purposes of felony sentencing set forth under R.C. 2929.11 and the seriousness and

recidivism factors under R.C. 2929.12. Butler also claims that he received ineffective

assistance of trial counsel based upon counsel’s failure to request a competency exam and

for his failure to pursue a not guilty by reason of insanity defense. Finding no error, we

affirm the lower court’s judgment.

                              Facts and Procedural History

       {¶ 2} According to the record, the Perrysburg Police Department received a call

on July 6, 2018, about a suspicious-acting person in the area of Roachton Road and North

Dixie Highway, in Perrysburg, Ohio. Officer Dave Schmaltz was one of the officers to

respond to the call. At the scene, he observed Butler carrying a baseball bat and behaving

in an erratic manner. When Officer Schmaltz tried to communicate with Butler, Butler

walked toward him and yelled, “you’re not the real police.” Butler then ran inside a

nearby business called Directions Credit Union. An off-duty officer was inside the credit

union, and he joined Officer Schmaltz in an attempt to settle Butler. Instead, Butler

became more agitated. He swung the bat at Officer Schmaltz and knocked a piece of

office equipment onto the floor, before barricading himself inside an office. Officer

Schmaltz attempted to open the door with a key, but Butler pushed back. Butler also hit

the door and a computer monitor with the bat, damaging both. Finally, another officer

was able to break into the office by crawling through a window that Butler had hit with




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the bat. Butler struggled with police as he was taken into custody and had to be “taken to

the ground” and shackled.

       {¶ 3} Butler was indicted on August 2, 2018 on a single count of assault, in

violation of R.C. 2903.13(A) and (C)(5), a felony of the fourth degree. Butler pled guilty

as charged on November 2, 2018, and the court found him guilty. The case was then

referred to the Wood County Probation Department for a presentence investigation

(“P.S.I.”) in advance of sentencing. During his presentence interview, Butler described

his behavior as “childish” and “stupid” and lamented that “things escalated quickly.”

       {¶ 4} Butler began receiving treatment for various mental health conditions,

including anxiety, attention deficit/hyperactivity disorder and bipolar disorder. On

November 24, 2018, however, Butler was arrested in Defiance, Ohio, and charged with

felonious assault, a first-degree felony. He was taken into custody, which disrupted his

mental health treatment.

       {¶ 5} Sentencing in the instant case occurred on December 21, 2018. Following a

hearing, the trial court sentenced Butler to serve a term of 17 months in prison and

ordered him to pay restitution in the amount of $1,118 to Directions Federal Credit

Union. The court also imposed prosecution costs and up to three years of discretionary

postrelease control. Butler appealed, and through counsel, raises two assignments of

error for our review.

              I. The trial court did not comply with R.C. 2929.11 and 2929.12 in

       sentencing Appellant to seventeen months in the Ohio Department of




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       Rehabilitation and Corrections instead of ordering community control

       sanctions.

              II. Appellant received ineffective assistance of counsel in violation

       of his rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, Section 10 of the Ohio Constitution.

                                    Law and Analysis

       {¶ 6} In his first assignment of error, Butler claims that his 17-month prison

sentence is contrary to law.

       {¶ 7} We review sentencing challenges under R.C. 2953.08(G)(2). This statute

allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate

the sentence and remand the matter for resentencing only if it clearly and convincingly

finds either of the following:

              (a) That the record does not support the sentencing court’s findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law. R.C.

       2953.08(G)(2).

       {¶ 8} A sentence is not clearly and convincingly contrary to law where the trial

court has considered the purposes and principles of sentencing under R.C. 2929.11 and

the seriousness and recidivism factors under R.C. 2929.12, properly applied postrelease




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control, and imposed a sentence within the statutory range. State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See also State v. Tammerine, 6th Dist. Lucas

No. L-13-1081, 2014-Ohio-425, ¶ 15-16 (Noting that while R.C. 2953.08(G)(2) prohibits

courts from applying the abuse of discretion standard, as set forth in Kalish, that Kalish

“may still be utilized [for purposes of] determining whether a sentence is clearly and

convincingly contrary to law.”). If the appellate court finds that a sentence is not clearly

and convincingly contrary to law, it may vacate or modify the sentence “only if the

appellate court finds by clear and convincing evidence that the record does not support

the sentence.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 23.

       {¶ 9} Here, Butler does not challenge the trial court’s compliance with the

sentencing statutes identified in subsection (a) of R.C. 2953.08(G)(2), nor does he claim

that the trial court misapplied postrelease control or that it imposed a sentence outside the

statutory range for a fourth-degree felony. See R.C. 2929.14(A)(4) (The range of

sentences that a trial court may impose for a fourth-degree felony “shall be a definite

term of six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,

seventeen, or eighteen months.”). Instead, Butler argues that his sentence is contrary to

law because the trial court failed to comply with the principles and purposes of felony

sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C.

2929.12.

       {¶ 10} R.C. 2929.11 explains that “ [t]he overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the




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offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” It instructs that “[t]o 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.”

       {¶ 11} R.C. 2929.12 provides discretion to the trial court “to determine the most

effective way to comply with the purposes and principles of sentencing * * *.” It

requires that “[i]n exercising that discretion, the court shall consider the factors set forth

in divisions (B) and (C) * * * relating to the seriousness of the conduct, the factors

provided in divisions (D) and (E) * * * relating to the likelihood of the offender’ s

recidivism, and the factors set forth in division (F) * * * pertaining to the offender’s

service in the armed forces of the United States,” in addition to any other factors relevant

to achieving the purposes and principles of sentencing. R.C. 2929.12(A).

       {¶ 12} In its December 26, 2018 judgment entry, the trial court expressly stated

that R.C. 2929.11 and 2929.12 “were taken into consideration prior to imposing

sentence.” Moreover, at the sentencing hearing, the court explained its rationale for

imposing the 17-month prison sentence. It is clear from this explanation that the court

found it “concern[ing]” that Butler “damage[d] a lot of property,” attempted to cause

physical harm to a person “with a deadly weapon, in particular a bat” and “endanger[ed]




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other people too,” who were forced to evacuate the credit union when Butler came inside

wielding a bat.

       {¶ 13} Butler claims that the trial court failed to give appropriate weight to an

absence of evidence that, if present, would have indicated that his conduct was “more

serious than conduct normally constituting the offense” under R.C. 2929.12(B)(2). That

section requires a court to consider evidence that a victim has “suffered serious physical,

psychological, or economic harm as a result of the offense.” Butler claims that Section

(B)(2) is applicable because Officer Schmaltz sustained no injuries. As described above,

however, the court based its decision on Butler’s attempt to cause physical harm as well

as his endangering others and his damage to property. The court’s consideration of those

factors is appropriate under R.C. 2929.12(B)(2).

       {¶ 14} Next, Butler claims that the trial court failed to give appropriate

consideration to the fact that he was suffering from “mental illness and drug use at the

time of the offense.” The court may take those factors into account under R.C.

2929.12(C)(4) in considering whether his conduct was “less serious than conduct

normally constituting the offense.” However, just because the trial court did not find

Butler’s stated reason, i.e., his need to treat his mental health, to be a compelling reason

to impose a lesser sentence does not render his sentence contrary to law. Accord State v.

Parks, 6th Dist. Lucas No. L-18-1138, 2019-Ohio-2366, ¶ 23 (Rejecting argument that

the court, in imposing the maximum sentence “held no regard to the addiction that [he]

faces” in contravention of R.C. 2929.11(A)’s mandate to impose minimum sanctions.).




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       {¶ 15} Moreover, the court did find Butler’s “pattern of drug [and] alcohol abuse”

relevant, albeit with respect to the likelihood that he might commit future crimes, as set

forth under R.C. 2929.12(D)(4). The record indicates that Butler has longstanding drug

and alcohol problems, including a 2018 diagnosis for cocaine use disorder. The court

also expressed concern over Butler’s “explosive personality.”

       {¶ 16} Although the court may have weighed certain factors more heavily than

others, we cannot say that it did not consider the principles and purposes of sentencing or

the seriousness and recidivism factors as it was required to do under R.C. 2929.11 and

2929.12. “[I]t is up to the discretion of the individual decision-maker ‘to determine the

weight to assign a particular statutory factor.’” State v. Yeager, 6th Dist. Sandusky No.

S-15-025, 2016-Ohio-4759, ¶ 13, quoting State v. Arnett, 88 Ohio St.3d 208, 215, 724

N.E.2d 793 (2000).

       {¶ 17} We find that the trial court complied with all applicable sentencing

requirements when it sentenced Butler to prison and that his sentence is not clearly and

convincingly contrary to law under R.C. 2953.08(G)(2). Accordingly, his first

assignment of error is not well-taken.

                          Effective Assistance of Trial Counsel

       {¶ 18} In Butler’s second assignment of error, he claims that he was denied

effective assistance of counsel at trial. The Sixth Amendment right to counsel exists “in

order to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S.

668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove a claim of ineffective




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assistance of counsel, a defendant must show that: (1) counsel’s performance was

deficient and (2) the deficient performance prejudiced the defense. State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs one and two of the syllabus, citing

Strickland at 688.

       {¶ 19} A reviewing court must determine whether trial counsel’s assistance fell

below an objective standard of reasonable advocacy. Bradley at 141-142. The deficient

performance must have been so serious that, “were it not for counsel’s errors, the result

of the trial would have been different.” Id. at 141-142.

       {¶ 20} Moreover, trial strategy “must be accorded deference and cannot be

examined through the distorting effect of hindsight.” State v. Conway, 109 Ohio St.3d

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 115. “An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Strickland at 691.

       {¶ 21} Butler claims that his counsel should have requested a psychological

examination for the purpose of determining his competency and/or should have pursued a

not guilty by reason of insanity (“NGRI”) defense based upon his “bizarre behavior.”

We find no merit to Butler’s arguments.

       {¶ 22} First, Butler’s decision to flee the scene on the day of his offense and his

subsequent expressions of remorse indicate an understanding of wrongfulness which, as a

matter of law, do not support a NGRI defense. State v. Welninski, 6th Dist. Wood Nos.

WD-16-039, WD-16-040, 2018-Ohio-778, ¶ 72. Therefore, despite Butler’s postconviction




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mental health diagnoses, an insanity defense would not have relieved him of culpability

because he understood the wrongfulness of his conduct. State v. Myers, 10th Dist. Franklin

No. 09AP-926, 2010-Ohio-4602, ¶ 19.

       {¶ 23} Second, at the arraignment, Butler’s counsel represented that, while Butler

had been suicidal at the time of the incident, he was “not in that state of mind anymore,”

that he was receiving mental health treatment, and that he was “in a stable mind at this

time.” In addition, Butler actively participated at the hearing, telling the court that he had

been employed prior to his arrest and, if released on bond, he was “pretty sure” he would

be re-employed because “they [were] pretty cool.” Butler was similarly responsive and

engaged during his plea hearing.

       {¶ 24} In short, the record gives no indication that Butler was anything other than

fully capable of assisting with his own defense. “The mere fact that a defendant suffer[s]

from a mental illness * * * when he enter[s] a guilty plea is not an indication that his plea

was not knowing and voluntary, that the defendant lacked mental capacity to enter a plea

or that the trial court otherwise erred in accepting the defendant’s guilty plea.” State v.

McClendon, 8th Dist. Cuyahoga No. 103202, 2018-Ohio-2630 (citing cases); see also

State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986) (“A defendant may be

emotionally disturbed or even psychotic and still be capable of understanding the charges

against him and of assisting counsel.”).

       {¶ 25} Counsel’s “[f]ailure to pursue * * * a defense strategy is only deficient

performance when the facts and circumstances show that a plea of not guilty by reason of




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insanity would have had a reasonable probability of success.” Welninski at ¶ 72, quoting

State v. Hawkins, 8th Dist. Cuyahoga No. 102185, 2015-Ohio-3140, ¶ 8. Here, because

there is no indication in the record that a NGRI defense would have been successful or

that there was any reason to believe that Butler was not competent to stand trial, counsel

did not err by failing to request a psychological examination or for failing to pursue a

NGRI defense. Accordingly, Butler’s second assignment of error is not well-taken.

       {¶ 26} The December 26, 2018 judgment of the Wood County Court of Common

Pleas is affirmed. Butler is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, J.                                      JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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