[Cite as State v. Buchholz, 2017-Ohio-857.]




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


State of Ohio                                     Court of Appeals No. L-16-1133

        Appellee                                  Trial Court No. CR0201502435

v.

Aron Michael Buchholz                             DECISION AND JUDGMENT

        Appellant                                 Decided: March 10, 2017


                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****


        PIETRYKOWSKI, J.,

        {¶ 1} Defendant-appellant, Aron Buchholz, appeals the June 1, 2016 judgment of

the Lucas County Court of Common Pleas which, following his guilty plea to involuntary
manslaughter, R.C. 2903.04(A), with a firearm specification, sentenced him to ten years

of imprisonment. Because appellant’s sentence was not contrary to law, we affirm.

       {¶ 2} Appellant was indicted on one count of murder, R.C. 2903.02(A), and,

alternatively, one count of murder, R.C. 2903.02(B), with firearm specifications

stemming from the August 24, 2015 shooting death of victim, Theresa Craig. Appellant

entered not guilty pleas to the charges.

       {¶ 3} On April 15, 2016, appellant was charged by information to one count of

involuntary manslaughter. Pursuant to agreement of the parties, appellant entered a

guilty plea to involuntary manslaughter, with a firearm specification. The plea form was

journalized on April 19, 2016, and included notification that the maximum penalty

appellant faced at sentencing was 14 years of imprisonment and a $20,000 fine. The

form further indicated that a nolle prosequi would be entered as to the murder counts,

Counts 1 and 2.

       {¶ 4} The parties filed sentencing memoranda and a presentence investigation was

conducted. On June 1, 2016, appellant was sentenced to ten years of imprisonment. This

appeal followed.

       {¶ 5} Appellant now raises one assignment of error for our review:

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

       sentencing appellant to ten years in the Ohio Department of Rehabilitation

       and Corrections.




2.
       {¶ 6} We review a felony sentence under the two-prong approach set forth in R.C.

2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶

11. R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, modify, or

vacate and remand a disputed sentence 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.

       {¶ 7} Here, none of the express findings under R.C. 2953.08(G)(2) apply. Thus,

we must examine whether the sentence is otherwise contrary to law.

       {¶ 8} In Tammerine, we recognized that State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124, still can provide guidance for determining whether a

sentence is clearly and convincingly contrary to law. Tammerine at ¶ 15. The Ohio

Supreme Court in Kalish held that where the trial court expressly stated that it

considered the purposes and principles of R.C. 2929.11 as well as the factors listed in

R.C. 2929.12, properly applied postrelease control, and sentenced the defendant within

the statutorily permissible range, the sentence was not clearly and convincingly contrary

to law. Kalish at ¶ 18.




3.
       {¶ 9} In his sole assignment of error, appellant argues that while the sentence

imposed was within the statutory range, the sentence was contrary to law because the trial

court erroneously failed to consider the mitigating factors in support of a lesser sentence.

Specifically, appellant claims that the court failed to consider the factors in R.C.

2929.12(C)(4) and (D) which provide:

              (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:

              * * *.

              (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; was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

       Code; was under post-release control pursuant to section 2967.28 or any

       other provision of the Revised Code for an earlier offense or had been

       unfavorably terminated from post-release control for a prior offense



4.
     pursuant to division (B) of section 2967.16 or section 2929.141 of the

     Revised Code; was under transitional control in connection with a prior

     offense; or had absconded from the offender’s approved community

     placement resulting in the offender’s removal from the transitional control

     program under section 2967.26 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.




5.
       {¶ 10} Appellant contends that, unlike the aggravating factors in R.C. 2929.12(D),

he does not have a criminal record, that the shooting was “accidental” in nature and that

he has shown remorse for the offense.

       {¶ 11} As noted by the state, we have previously observed that “where the

sentencing court properly considers the felony sentencing mandates and relevant

materials in the record, absent evidence that the sentence was inconsistent or

disproportionate we must conclude that the sentence was not clearly or convincingly

contrary to law.” State v. Jones, 6th Dist. Ottawa No. OT-14-042, 2015-Ohio-4209, ¶ 24,

citing State v. McClanahan, 6th Dist. Ottawa No. OT-14-024, 2014-Ohio-5597, ¶ 11-18.

       {¶ 12} At the May 27, 2016 sentencing hearing, in sentencing appellant the trial

court first noted that it had considered the sentencing memoranda, the presentence

investigation report, the ORAS (Ohio Risk Assessment System) report, the letters on

behalf of the victim and the defendant, the statements made at sentencing, and the

principles and purposes of sentencing under R.C. 2929.11, and the seriousness and

recidivism factors under R.C. 2929.12. Further, in its June 1, 2016 judgment entry, the

court again indicated that it considered the above in rendering its decision.

       {¶ 13} Reviewing the record before this court, we find the trial court considered

R.C. 2929.11 and 2929.12 prior to imposing appellant’s sentence. In addition, R.C.

2929.14(A)(1), provides for prison terms ranging from three to 11 years for felonies of

the first degree; plus, appellant was subject to an additional mandatory three-year term




6.
for the firearm specification. Thus, the trial court’s imposition of a ten-year prison

sentence was within the permissible statutory range.

       {¶ 14} In light of the foregoing, we find that the trial court met its obligations to

consider the sentencing statutes in fashioning a sentence that was within the permissible

statutory range. Thus, that appellant’s sentence was not clearly and convincingly

contrary to law. Appellant’s assignment of error is not well-taken.

       {¶ 15} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair proceeding and the judgment of the Lucas County Court of

Common pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.

                                                                         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.
                                                 _______________________________
James D. Jensen, P.J.                                        JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE




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