[Cite as State v. Toler, 2013-Ohio-5084.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 2-13-18

        v.

MICHAEL ALLEN TOLER,
                                                           OPINION
        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2012-CR-194

                                       Judgment Affirmed

                           Date of Decision: November 18, 2013



APPEARANCES:

        Rob C. Wiesenmayer, II for Appellant

        R. Andrew Augsburger for Appellee
Case No. 2-13-18



PRESTON, P.J.

        {¶1} Defendant-appellant, Michael Allen Toler, appeals the Auglaize

County Court of Common Pleas’ entry sentencing him to 36 months imprisonment

following his guilty plea to one count of child endangering, a third-degree felony.

We affirm.

        {¶2} This case stems from an August 27, 2012 incident in which Toler

became frustrated with his infant son and pushed his infant son’s face down on a

bed by placing his hands on the infant’s back. (Apr. 26, 2013 Tr. at 9, 12); (Pre-

Sentence Investigation (“PSI”) Report); (Victim Impact Statement). The infant

stopped breathing, Toler attempted to resuscitate him, and Toler and his wife

rushed the infant to the hospital where hospital personnel were able to restart his

heart. (Id.); (Id.); (Id.).

        {¶3} On November 15, 2012, the Auglaize County Grand Jury indicted

Toler on Count One of felonious assault in violation of R.C. 2903.11(A)(1), a

second-degree felony; Count Two of child endangering in violation of R.C.

2919.22(A), (E)(2)(c), a third-degree felony; and, Count Three of child

endangering in violation of R.C. 2919.22(B)(1), (E)(2)(d), a second-degree felony.

(Doc. No. 1).

        {¶4} On November 19, 2012, Toler appeared before the trial court for the

purpose of setting bond. (Doc. Nos. 10, 13). The trial court released Toler on his


                                       -2-
Case No. 2-13-18



own recognizance. (Id.). The trial court also found Toler indigent and appointed

an Auglaize County assistant public defender to represent him. (Doc. No. 13).

       {¶5} On November 28, 2012, Toler entered written pleas of not guilty to

the counts of the indictment. (Doc. No. 17).

       {¶6} The trial court held pretrial hearings on January 4 and 24, 2013.

(Doc. Nos. 19, 23, 24). At the conclusion of the January 24, 2013 pretrial hearing,

the trial court scheduled the case for a final pretrial hearing on March 1, 2013 and

a jury trial on April 24, 2013. (Doc. No. 26).

       {¶7} On March 1, 2013, the parties filed a negotiated plea agreement, in

which Toler agreed to request leave of the trial court to plead guilty to Count Two,

and plaintiff-appellee, State of Ohio, agreed to ask for leave of the trial court to

enter a nolle prosequi as to Counts One and Three. (Doc. No. 30). In the

negotiated plea agreement, Toler acknowledged that he understood his maximum

prison term for Count Two was 36 months and that he would have mandatory

post-release control for three years if sentenced to imprisonment. (Id.).

       {¶8} The trial court held a change-of-plea hearing on March 1, 2013.

(Mar. 1, 2013 Tr. at 3). (See also Doc. No. 31). At that hearing, Toler requested

leave to withdraw his plea of not guilty to Count Two, which the trial court

granted. (Mar. 1, 2013 Tr. at 16); (Doc. No. 31). Toler then entered a plea of

guilty to Count Two, and the trial court found Toler guilty on Count Two. (Id. at


                                        -3-
Case No. 2-13-18



16, 18); (Id.). The State requested leave to enter a nolle prosequi as to Counts One

and Three, which the trial court granted. (Id. at 3); (Id.). The trial court dismissed

Counts One and Three upon completion of sentencing. (Id. at 18); (Id.). The trial

court set the case for a sentencing hearing on April 26, 2013. (Doc. No. 33). The

trial court ordered the completion of a PSI report and a victim impact statement

before sentencing. (Mar. 1, 2013 Tr. at 18); (Doc. Nos. 31, 34).

       {¶9} On April 26, 2013, the trial court held the sentencing hearing. (Apr.

26, 2013 Tr. at 3); (Doc. No. 36). At that hearing, Toler and his counsel requested

a sentence of community control rather than imprisonment and offered their

reasons for the requested mitigated sentence. (Apr. 26, 2013 Tr. at 4-20).

       {¶10} After hearing Toler and his counsel, the trial court sentenced Toler

to 36 months imprisonment.        (Id. at 20).   The afternoon of the day of the

sentencing hearing, the trial court filed its “Journal Entry – Orders on Sentence.”

(Doc. No. 36).

       {¶11} On May 24, 2013, Toler filed a notice of appeal. (Doc. No. 50). He

raises one assignment of error for our review.

                               Assignment of Error

       The trial court’s sentence of appellant to a maximum sentence of
       thirty six 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 Ohio Revised Code, Section
       2929.11 and 2929.12.


                                        -4-
Case No. 2-13-18



      {¶12} In his assignment of error, Toler argues that the trial court failed to

properly consider and apply the purposes and principles for felony sentencing set

forth in R.C. 2929.11 and the factors relating to the seriousness of the offense and

the recidivism of the offender under R.C. 2929.12.

      {¶13} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-

Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth

under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed

under the applicable provisions of R .C. 2953.08(A), (B), and (C) * * *); State v.

Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v.

Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19, citing

R.C. 2953.08(G).

       {¶14} 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; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000).           An

appellate court should not, however, substitute its judgment for that of the trial


                                       -5-
Case No. 2-13-18



court because the trial court is “‘clearly in the better position to judge the

defendant’s dangerousness and to ascertain the effect of the crimes on the

victims.’” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,

quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).

       {¶15} A trial court must consider R.C. 2929.11 and 2929.12 when

sentencing an offender. State v. Pence, 3d Dist. Auglaize No. 2-11-18, 2012-

Ohio-1794, ¶ 9. R.C. 2929.11 instructs sentencing courts to consider factors

aimed at advancing the “overriding purposes of felony sentencing,” which “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.” See State v. Fletcher, 3d Dist. Auglaize No. 2-13-02, 2013-Ohio-

3076, ¶ 15, citing R.C. 2929.11(A). R.C. 2929.12 requires the sentencing court to

consider factors that indicate the offender’s conduct is more or less serious than

conduct that normally constitutes the offense and factors that indicate the offender

is likely or not likely to commit future offenses. State v. Billeg, 3d Dist. Wyandot

No. 16-12-03, 2013-Ohio-219, ¶ 22, citing R.C. 2929.12(A).

       {¶16} Although it is required to consider R.C. 2929.11 and 2929.12, the

trial court is not required to use specific language regarding its consideration of

those statutes. State v. Smith, 3d Dist. Auglaize No. 2-06-37, 2007-Ohio-3129, ¶


                                       -6-
Case No. 2-13-18



26, citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38; Fletcher,

2013-Ohio-3076, at ¶ 22, citing State v. Patrick, 10th Dist. Franklin No. 10AP-26,

2011-Ohio-1592, ¶ 25-26. See also State v. Arnett, 88 Ohio St.3d 208, 215 (2000)

and State v. Snyder, 3d Dist. Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 25.

       {¶17} Here, a review of the record indicates that the trial court considered

both R.C. 2929.11 and 2929.12 in sentencing Toler. At the sentencing hearing,

the trial court heard Toler and his counsel’s statements concerning why they

believed the trial court should sentence Toler to community control and not

imprisonment. (See Apr. 26, 2013 Tr. at 4-20). The trial court asked Toler how

he committed the offense and about his attempts to minimize his actions, as noted

in the PSI report. (See id. at 8-20). The trial court pointed out that Toler nearly

killed his son, and that Toler failed to “follow[ ] through with the opportunities

that he was given to rehabilitate himself in the months following” the offense,

which the trial court said “did not speak well of his ability to be rehabilitated in a

shorter period of time or without incarceration.” (Id. at 22).

       {¶18} The trial court sentenced Toler to 36 months imprisonment. (Id. at

20). When sentencing Toler, the trial court stated on the record that it considered

“the information provided to the Court by the parties, the [PSI], and * * * the

purposes and principles of sentencing, pursuant to Section 2929.11 of the Revised

Code, and * * * the statutes in Chapter 2929 of the Revised Code * * *.” (Apr. 26,


                                        -7-
Case No. 2-13-18



2013 Tr. at 20). In its “Journal Entry – Orders on Sentence,” the trial court stated

that it “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.”              (Doc. No. 36).

Therefore, the trial court satisfied its obligation to consider R.C. 2929.11 and

2929.12 when sentencing Toler.       Fletcher, 2013-Ohio-3076, at ¶ 22, quoting

Patrick, 2011-Ohio-1592, at ¶ 25 (“A trial court’s rote recitation that it has

considered applicable factors satisfies the court’s duty to follow the relevant

statutes in sentencing an offender.”).

       {¶19} Finally, we note that Toler does not argue that his sentence falls

outside of the range permitted by the Revised Code, and we conclude that the

sentence was, in fact, within the permissible range for a felony of the third degree

under R.C. 2929.14. Therefore, we cannot find that his sentence was contrary to

law. Accordingly, Toler’s assignment of error is overruled.

       {¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/hlo


                                         -8-
