[Cite as State v. Helmstetter, 2013-Ohio-3982.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 2-13-07

        v.

JORDAN M. HELMSTETTER,                                  OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 2-13-08

        v.

JORDAN M. HELMSTETTER,                                  OPINION

        DEFENDANT-APPELLANT.


                Appeals from Auglaize County Common Pleas Court
                  Trial Court Nos. 2011-CR-91 and 2012-CR-157

                        In Appeal No. 2-13-07, Appeal Dismissed
                       In Appeal No. 2-13-08, Judgment Affirmed

                          Date of Decision: September 16, 2013


APPEARANCES:

        Gerald F. Siesel for Appellant

        Edwin A. Pierce and R. Andrew Augsburger for Appellee
Case No. 2-13-07, 2-13-08


WILLAMOWSKI, J.

      {¶1} Defendant-appellant Jordan M. Helmstetter (“Helmstetter”) brings

these appeals from the judgments of the Court of Common Pleas of Auglaize

County sentencing him to an aggregate prison term of 78 months for convictions

in case numbers 2011-CR-91 and 2012-CR-157. Helmstetter argues that the trial

court did not properly consider and apply the sentencing guidelines set forth in

R.C. 2929.11 and R.C. 2929.12. For the reasons set forth below, the judgment in

appellate case number 2-13-08 is affirmed. The appeal taken in case number 2-13-

07 is dismissed.

      {¶2} On April 29, 2011, the Auglaize County Grand Jury indicted

Helmstetter as follows:     Count 1 - Drug Trafficking in violation of R.C.

2925.03(A)(1)(C)(1)(a), a felony of the fourth degree; Count 2 – Trafficking in

Marijuana in violation of R.C. 2925.03(A)(1)(C)(3)(a), a felony of the fifth

degree; Count 3 - Drug Trafficking in violation of R.C. 2925.03(A)(1)(C)(1)(b), a

felony of the fourth degree; and Counts 4 and 5 - Trafficking in Heroin in

violation of R.C. 2925.03(A)(1)(C)(6)(a), a felony of the fifth degree. The case

was assigned number 2011-CR-91. Helmstetter entered pleas of not guilty to all

counts on May 12, 2011. On June 8, 2011, Helmstetter and the State entered into

a plea agreement whereby Helmstetter would enter a plea of guilty to counts 1, 4,

and 5. The State then agreed to dismiss counts 2 and 3 of the indictment. The trial


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court accepted the plea agreement. A sentencing hearing was held on August 2,

2011, and the trial court placed Helmstetter on community control for a period of

five years. The terms of community control included the following restrictions.

      a. During the period of the sanctions, the Defendant must
      abide by the law * * *;

      b. The Defendant shall neither consume nor possess any
      alcoholic beverages or substances of abuse or drug
      paraphernalia;

      c. The Defendant shall not use, purchase, have under my (sic)
      control, or be in the presence (sic) any mind altering substances
      * * *;

      d. The Defendant shall not visit or be present on any premises
      where alcohol is served or substances of abuse or drug
      paraphernalia are present;

      ***

      j. The Defendant shall not have any contact or association
      directly or indirectly with any drug users or drug traffickers.

The trial court also notified Helmstetter that if he violated the terms of the

community control, he could be ordered to serve prison terms of eighteen months

on Count I, twelve months on Count IV, and twelve months on Count V with all

sentences to be served consecutively for a total prison term of forty-two months.

      {¶3} On July 17, 2012, the State filed a motion for a hearing on a violation

of community control sanctions. The supporting affidavit alleged that Helmstetter

had possessed heroin and had possessed digital scales, thus violating the terms of


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Case No. 2-13-07, 2-13-08


his community control. As a result of the above allegations, on September 7,

2012, the Auglaize County Grand Jury indicted Helmstetter on one count of

possession of heroin in violation of R.C. 2925.11(A)(C)(6)(c), a felony of the third

degree.   The new indictment was assigned case number 2012-CR-157.              On

January 23, 2012, Helmstetter changed his not guilty plea on the indictment to one

of guilty in exchange for a jointly recommended sentence of 24 months in prison

in case number 2012-CR-157. Helmstetter also admitted to the community control

violation in case number 2011-CR-91. In case number 2011-CR-91, the trial court

reimposed the sentence previously ordered which required Helmstetter to serve a

total prison term of 42 months. In case number 2012-CR-157, the trial court chose

to not follow the joint recommendation of Helmstetter and the State and ordered

Helmstetter to serve a prison term of thirty-six months. This sentence was ordered

to be served consecutively to the one in case number 2011-CR-91 for a total prison

term of seventy-eight months. Helmstetter appeals from this judgment and raises

the following assignment of error.

       The trial court’s sentence of [Helmstetter] to a maximum
       sentence of thirty-six months consecutive to a reimposed
       community control violation sentence of forty-two months was
       contrary to law and further constituted an abuse of discretion by
       failing to properly consider and apply the sentencing guidelines
       set forth in [R.C. 2929.11 and R.C. 2929.12].

       {¶4} This court initially notes that the assignment of error only applies to

the sentence set forth in trial court case number 2012-CR-157, which was assigned

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Case No. 2-13-07, 2-13-08


appellate court case number 2-13-08. Appellate Rule 16 requires all briefs to

contain an assignment of error and an argument with respect to the assignment of

error. App.R. 16(A). The failure to assign an error or to argue it as required by

Appellate Rule 16 may result in the appellate court disregarding the argument and

dismissing the appeal. State v. Chilcutt, 3d Dist. Crawford Nos. 3-03-16, 3-03-17,

2003-Ohio-6705. Since no assignment of error was made and no argument was

presented in appellate case number 2-13-07, that appeal is dismissed.

       {¶5} Helmstetter claims that the trial court’s imposition of the maximum

sentence is contrary to law and an abuse of discretion.

       Trial courts have full discretion to impose any sentence with the
       statutory range. State v. Saldana, 3d Dist. No. 12–12–09, 2013–
       Ohio–1122, ¶ 20. * * * However, the trial court must still
       consider the purposes of felony sentencing as set forth in R.C.
       2929.11 and be guided by the sentencing factors set forth in R.C.
       2929.12 and R.C. 2929.13 when determining the appropriate
       sentence. Saldana at ¶ 20–21.

State v. Walton, 3d Dist. Nos. 16-12-13, 16-12-14, 2013-Ohio-2147, ¶4.

       (A) A court that sentences an offender for a felony shall be
       guided by the overriding purposes of felony sentencing. 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.

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Case No. 2-13-07, 2-13-08



      (B) A sentence imposed for a felony shall be reasonably
      calculated to achieve the two overriding purposes of felony
      sentencing set forth in division (A) of this section, 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) The sentencing court shall consider all of the following that
      apply regarding the offender, the offense, or the victim, and any
      other relevant factors, as indicating that the offender’s conduct
      is more serious than conduct normally constituting the offense:

      (1) The physical or mental injury suffered by the victim of the
      offense due to the conduct of the offender was exacerbated
      because of the physical or mental condition or age of the victim.

      (2) The victim of the offense suffered serious physical,
      psychological or economic harm as a result of the offense.

      (3) The offender held a public office or position of trust in the
      community, and the offense related to that office or position.

      (4) The offender’s occupation, elected office, or profession
      obliged the offender to prevent the offense or bring others
      committing it to justice.

      (5) The offender’s professional reputation or occupation,
      elected office, or profession was used to facilitate the offense or is
      likely to influence the future conduct of others.

      (6) The offender’s relationship with the victim facilitated the
      offense.

      (7) The offender committed the offense for hire or as a part of
      an organized criminal activity.


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Case No. 2-13-07, 2-13-08


      (8) In committing the offense, the offender was motivated by
      prejudice based on race, ethnic background, gender, sexual
      orientation, or religion.

      (9) If the offense is a violation of section 2919.25 or a violation
      of section 2903.11, 2903.12, 2903.13 of the Revised Code
      involving a person who was a family or household member at
      the time of the violation, the offender committed the offense in
      the vicinity of one or more children who are not victims of the
      offense, and the offender or the victim of the offense is a parent,
      guardian, custodian, or person in loco parentis of one or more of
      those children.

      (C) The sentencing court shall consider all of the following that
      apply regarding the offender, the offense, or the victim, and any
      other relevant factors, as indicating that the offender’s conduct
      is less serious than conduct normally constituting the offense:

      (1) The victim induced or facilitated the offense.

      (2) In committing the offense, the offender acted under strong
      provocation.

      (3) In committing the offense, the offender did not cause or
      expect to cause physical harm to any person or property.

      (4) There are substantial grounds to mitigate the offender’s
      conduct, although the grounds are not enough to constitute a
      defense.

      (D) The sentencing court shall consider all of the following that
      apply regarding the offender, and any other relevant factors, as
      factors indicating that the offender is likely to commit future
      crimes.

      (1) At the time of committing the offense, the offender was
      under release from confinement before trial or sentencing, under
      a sanction imposed pursuant to section 2929.16, 2929.17, or
      2929.18 of the Revised Code, or under post-release control
      pursuant to section 2967.28 or any other provision of the

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Case No. 2-13-07, 2-13-08


      Revised Code for an earlier offense or had been unfavorably
      terminated from post-release control for a prior offense
      pursuant to division (B) of section 2967.16 or section 2929.141 of
      the Revised Code.

      (2) The offender previously was adjudicated a delinquent child
      pursuant to Chapter 2151. of the Revised Code prior to January
      1, 2002, or pursuant to Chapter 2152. of the Revised Code, or
      the offender has a history of criminal convictions.

      (3) The offender has not been rehabilitated to a satisfactory
      degree after previously being adjudicated a delinquent child
      pursuant to Chapter 2151. of the Revised Code prior to January
      1, 2002, or pursuant to Chapter 2152. of the Revised Code, or
      the offender has not responded favorably to sanctions previously
      imposed for criminal convictions.

      (4) The offender has demonstrated a pattern of drug or alcohol
      abuse that is related to the offense, and the offender refuses to
      acknowledge that the offender has demonstrated that pattern, or
      the offender refuses treatment for the drug or alcohol abuse.

      (5) The offender shows no genuine remorse for the offense.

      (E) The sentencing court shall consider all of the following that
      apply regarding the offender, and any other relevant factors, as
      factors indicating that the offender is not likely to commit future
      crimes:

      (1) Prior to committing the offense, the offender had not been
      adjudicated a delinquent child.

      (2) Prior to committing the offense, the offender had not been
      convicted of or pleaded guilty to a criminal offense.

      (3) Prior to committing the offense, the offender had led a law-
      abiding life for a significant number of years.

      (4) The offense was committed under circumstances not likely
      to recur.

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Case No. 2-13-07, 2-13-08



       (5) The offender shows genuine remorse for the offense.

R.C. 2929.12.

       {¶6} In the assignment of error, Helmstetter claims that the trial court did

not properly consider the factors set forth in R.C. 2929.11 and R.C. 2929.12. A

review of the record indicates that the trial court did consider the factors when

imposing its sentence.

       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 Ohio
       Revised Code §2929.11 and has balanced the seriousness and
       recidivism factors under Ohio Revised Code §2929.12.

Sentencing Entry, 2-3. Further review shows that the record supports the trial

court’s conclusion to impose the maximum sentence and to order it consecutive to

that in Appellate Case Number 2-13-07. A review of the record shows that none

of the factors in 2929.12(B) that sets forth that the offense is more serious than

others apply. There was no victim, there were no injuries, and Helmstetter did not

commit his offense for hire or as a result of his occupation. As to the factors in

R.C. 2929.12(C), the trial court could determine that the factor that Helmstetter

did not expect to cause harm to persons or property as a result of the offense.

However, this does not ultimately affect the seriousness of the offense of

possession of heroin since physical harm to person or property is not an element of

the offense.

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Case No. 2-13-07, 2-13-08


      {¶7} In R.C. 2929.12(D), which helps determine the likeliness of

recidivism, there are several factors which apply to Helmstetter. At the time

Helmstetter committed this offense, he was under community control sanctions for

possession of drugs and drug trafficking. Helmstetter has a prior juvenile record,

which includes a theft charge, marijuana usage, and underage possession of

controlled substances. Helmstetter also violated the terms of his probation while a

juvenile by having positive marijuana drug screens on two occasions.        As an

adult, Helmstetter has received prior treatment for his drug abuse on two separate

occasions, but continues to have a drug problem. Helmstetter admitted to abusing

alcohol, marijuana, prescription drugs, cocaine, and heroin. Although he has

exhibited a willingness to enter treatment, he has not exhibited a willingness to

follow through with the treatment. There were no applicable factors set forth in

R.C. 2929.12(E), which would show an inclination to not commit future crimes, in

the record. Based upon the record before it, the trial court’s decision to impose a

maximum sentence in this case and order it to be served consecutively to a prior

sentence, was neither clearly and convincingly contrary to law nor an abuse of

discretion. The assignment of error is overruled, and the judgments are affirmed.




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Case No. 2-13-07, 2-13-08


       {¶8} Having found no error prejudicial to the Appellant, the judgment of

the Court of Common Pleas of Auglaize County in case number 2-13-08 is

affirmed. The appeal in case number 2-13-07 is dismissed.

                                                  In 2-13-07, Appeal Dismissed,
                                                In 2-13-08, Judgment Affirmed.

PRESTON, P.J. and ROGERS, J., concur.

/jlr




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