[Cite as State v. Hettmansperger, 2014-Ohio-4306.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                       :   OPINION

                 Plaintiff-Appellee,                 :
                                                         CASE NO. 2014-A-0006
        - vs -                                       :

NICKOLAUS HETTMANSPERGER,                            :

                 Defendant-Appellant.                :


Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2012 CR 578.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Malcolm Stewart Douglas, 55 North Chestnut Street, Jefferson, OH         44047 (For
Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Nickolaus Hettmansperger, appeals his sentence by the

Ashtabula County Court of Common Pleas following his guilty plea to one count of

aggravated assault and one count of tampering with evidence. For the reasons that

follow, we affirm.

        {¶2}     On September 3, 2012, an altercation occurred among Joseph Hunt,

Darren Tackett, and appellant. During the course of the altercation, appellant shot
Joseph Hunt. After the shooting, appellant disposed of the firearm by throwing it into

the Ashtabula River.

       {¶3}    On September 5, 2012, a criminal complaint was filed against appellant

with the Ashtabula Municipal Court. The complaint stated that appellant “did knowingly

cause or attempt to cause physical harm to Joseph Hunt, by means of a deadly weapon

or dangerous ordnance; to-wit: a .22 caliber pistol.” The case was then bound over to

the Ashtabula County Grand Jury.

       {¶4}    On October 17, 2012, appellant was indicted by the Ashtabula County

Grand Jury for two counts of felonious assault and a single count of tampering with

evidence. The first count of felonious assault alleged a violation of R.C. 2903.11(A)(1),

while the second count alleged a violation of R.C. 2903.11(A)(2). R.C. 2903.11 states,

in pertinent part, that:

               No person shall knowingly do either of the following:

               Cause serious physical harm to another or to another’s unborn;

               Cause or attempt to cause physical harm to another or to another’s
               unborn by means of a deadly weapon or dangerous ordnance.

Both of the felonious assault counts included firearm specifications. Pursuant to R.C.

2903.11(D)(1)(a), felonious assault is a felony of the second degree.

       {¶5}    On March 18, 2013, a change of plea hearing was held by the Ashtabula

County Court of Common Pleas. At the hearing, appellant withdrew his not guilty pleas

and entered a plea of guilty to one count of aggravated assault, in violation of R.C.

2903.12(A)(2), a felony of the fourth degree; and one count of tampering with evidence,

in violation of R.C. 2921.12(A)(1), a felony of the third degree. Appellant’s change of




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plea was signed by appellant, appellant’s attorney, and Margaret A. Draper for appellee,

the state of Ohio.

       {¶6}   At the change of plea hearing, both sides gave their respective version of

the events that transpired on September 3, 2012. Appellee stated it could prove that

appellant traveled to a residence in Ashtabula with $500 to purchase narcotics. Next,

appellee stated that Hunt and Tackett attempted to rob appellant of his money, and in

the course of that altercation, appellant shot Hunt. Appellee also stated it could prove

that appellant admitted to disposing of the firearm by throwing it over the bridge at the

Mary Street Hill. Efforts by FBI divers to locate the weapon were unsuccessful.

       {¶7}   Appellant stated that he shot Hunt because he and Tackett were

attempting to steal his money. In response to questioning by the trial court judge,

appellant denied that the altercation resulted from a drug deal gone wrong. Appellant

also told the court that the firearm used in the altercation was “just a little .22.”

       {¶8}   On December 31, 2013, the trial court held its sentencing hearing. At

sentencing, appellant again gave his version of the events, stating:

              I was getting robbed. Darren Tackett came up behind me and hit
              me. That’s when I pulled out the firearm. What happened was Joe
              Hunt was robbing me. Darren Tackett came behind me. Me and
              Joe Hunt were fist fighting. Darren Tackett came up behind me, hit
              me in the back of the head. I pulled out the gun, fired the firearm,
              got in the vehicle, left. I was scared, threw the gun in the water.
              And that’s exactly what happened.

Appellant repeated his position that there was no attempted drug deal and that he acted

merely out of self defense.

       {¶9}   At the sentencing hearing, both appellant and appellee recommended that

appellant be sentenced to a one-year period of incarceration, to be served concurrently




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with appellant’s present incarceration of nine months.1 Appellee noted that this period

of incarceration was recommended “due to the history of the alleged victim in the case,

Mr. Hunt, and the other witness, who was Darren Tackett.” The court then reminded

appellee that a firearm was involved, stating:

              [The firearm] was brandished, which carries a mandatory three-
              year firearm specification, so were -- you know, there’s just some
              point we’ve got to put a stop to this nonsense; that somehow we’ll
              have to shoot a bad guy, it’s not quite as bad as shooting some
              innocent citizen.

       {¶10} The trial court sentenced appellant to 18 months in prison for aggravated

assault and 18 months in prison for tampering with evidence. The trial court ordered

that the sentences be served consecutively, for a total of 36 months, and that they run

consecutively to the prison sentence that appellant was already serving. The court’s

judgment entry declared that the court had considered the purposes of sentencing

under R.C. 2929.11 and the seriousness and recidivism factors relevant to the offense

and offender pursuant to R.C. 2929.12.

       {¶11} Appellant timely appeals the trial court’s judgment of sentence. Because

both of appellant’s assignments of error challenge the propriety of his sentence, we

consolidate them for review. Appellant’s assignments of error state:

              [1.] The trial court abused its discretion and erred to the prejudice of
              appellant by sentencing him to thirty-six months of imprisonment, in
              that said prison sentence is excessive for the purposes set forth in
              [R.C.] 2929.11(A) and (B), and is not necessary to protect the
              public.

              [2.] The trial court abused its discretion to the prejudice of appellant
              by imposing consecutive maximum sentences when consideration
              of the factors in [R.C.] 2929.12 tended to favor a lesser sentence.


1. Appellant was previously sentenced to nine months of imprisonment in Ashtabula County Court of
Common Pleas case No. 2013 CR 115 for passing bad checks.


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      {¶12} Ohio’s felony-sentencing scheme allows judges to exercise discretion

within established statutory bounds. State v. Ries, 11th Dist. Portage No. 2008-P-0064,

2009-Ohio-1316, ¶13, citing State v. Mathis, 109 Ohio St.3d 54 (2006), paragraph three

of the syllabus. Despite having significant latitude, sentencing courts are required to

follow statutory direction in choosing a prison term. State v. Belew, __ Ohio St.3d __,

2014-Ohio-2964, ¶10 (Lanzinger, J., dissenting).

      {¶13} In 2006, based on precedent of the United States Supreme Court, the

Ohio Supreme Court struck down portions of Ohio’s sentencing statutes. See generally

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In State v. Kalish, a plurality of the

Ohio Supreme Court set forth a two-step analysis to use when reviewing felony

sentences: (1) whether the trial court adhered to all applicable rules and statutes in

imposing the sentence and (2) whether a sentence within the permissible statutory

range constitutes an abuse of discretion. 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.

      {¶14} In 2009, the United States Supreme Court upheld the ability of trial court

judges to make findings of fact before imposing consecutive sentences. Oregon v. Ice,

555 U.S. 160, 163 (2009). After the United States Supreme Court’s decision in Ice, the

Ohio General Assembly passed Am.Sub.H.B. No. 86 (“H.B. 86”). H.B. 86 reflects the

General Assembly’s intent that appellate review of sentences be governed by R.C.

2953.08(G). R.C. 2953.08(G)(2) states:

             The court hearing an appeal under division (A), (B), or (C) of this
             section shall review the record, including the findings underlying the
             sentence or modification given by the sentencing court.

             The appellate court may increase, reduce, or otherwise modify a
             sentence that is appealed under this section or may vacate the
             sentence and remand the matter to the sentencing court for
             resentencing. The appellate court’s standard for review is not



                                           5
                whether the sentencing court abused its discretion. The appellate
                court may take any action authorized by this division 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.

Accordingly, this court utilizes R.C. 2953.08(G) as the standard of review in all felony

sentencing appeals.

         {¶15} We begin our review of appellant’s sentence by addressing the court’s

imposition of consecutive sentences. The trial court ordered that appellant’s two, 18-

month prison sentences be served consecutively with each other, for a total of 36

months. The trial court also ordered appellant’s sentence to run consecutively to the

prison sentence that appellant was already serving.

         {¶16} A court must make certain factual findings before imposing consecutive

sentences. State v. Cornelison, 11th Dist. Lake No 2013-L-064, 2014-Ohio-2884, ¶27.

Pursuant to R.C. 2929.14(C)(4), consecutive sentences may be imposed if the court

finds:

                [1.] the consecutive service is necessary to protect the public from
                future crime or to punish the offender; and

                [2.] consecutive sentences are not disproportionate to the
                seriousness of the offender’s conduct and to the danger the
                offender poses to the public.

         {¶17} In addition, the trial court must also find that any of the following apply to

the offender being sentenced:

                The offender committed one or more of the multiple offenses while
                the offender was awaiting trial or sentencing, was under a sanction



                                               6
             imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
             Revised Code, or was under post-release control for a prior
             offense.

             At least two of the multiple offenses were committed as part of one
             or more courses of conduct, and the harm caused by two or more
             of the multiple offenses so committed was so great or unusual that
             no single prison term for any of the offenses committed as part of
             any of the courses of conduct adequately reflects the seriousness
             of the offender’s conduct.

             The offender’s history of criminal conduct demonstrates that
             consecutive sentences are necessary to protect the public from
             future crime by the offender.

      {¶18} In this case, the trial court made the findings necessary to support

imposition of consecutive sentences. At appellant’s sentencing hearing the trial court

stated that appellant has “an extensive criminal record. You have what? 23 pages here

from Ashtabula Municipal Court.” Additionally, in its judgment entry of sentence, the

trial court states it “finds that the defendant’s history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public.” Accordingly, we find

no error in the trial court’s findings in support of the imposition of consecutive

sentences.

      {¶19} In addition to challenging the trial court’s imposition of consecutive

sentences, appellant also argues that his sentence was excessive and contrary to the

purposes of felony sentencing. A felony sentence should be reasonably calculated “to

protect the public from future crime by the offender * * * 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.”               R.C.

2929.11(A). A court imposing a felony sentence is required to consider seriousness

and recidivism factors found in R.C. 2929.12. However, it is well established that a trial



                                            7
court “is not required to make findings of fact under the seriousness and recidivism

factors in R.C. 2929.12.” State v. ONeil, 11th Dist. Portage No. 2010-P-0041, 2011-

Ohio-2202, ¶34. At appellant’s sentencing hearing, the trial court stated:

             The Court has considered the following sentencing factors:
             pursuant to R.C. 2929(D) - - excuse me, 2929.12(B)(2), that the
             victim suffered serious physical harm; pursuant to 2929.12(D)(2),
             that the Defendant has a history of criminal convictions, he’s
             presently serving a prison sentence; pursuant to 2929.12(D)(4), the
             Defendant has a pattern of drug abuse that is related to the offense
             and has previously refused treatment.

      {¶20} Additionally, in its judgment entry of sentence, the trial court stated:

             The Court has considered the record, oral statements, any victim
             impact statement, the presentence report, the purposes and
             principles of sentencing under R.C. 2929.11, the seriousness and
             recidivism factors relevant to the offense and offender pursuant to
             R.C. 2929.12, the overriding purposes of felony sentencing,
             including protection of the public from future crime by the offender
             and others and punishment of the offender, using the minimum
             sanctions that the Court determines accomplish those purposes
             without imposing an unnecessary burden on the state or local
             government resources.

             Pursuant to R.C. 2929.12(B)(2), the Court finds that the victim of
             the offense suffered serious physical harm as a result of the
             offense.

             Pursuant to R.C. 2929.12(D)(2), the Court finds that the Defendant
             has a history of criminal convictions and is presently serving a
             prison sentence imposed by the Honorable Ronald W. Vettel in
             Ashtabula County Court of Common Pleas Case Number 2013 CR
             115.

             Pursuant to R.C. 2929.12(D)(4), the Court finds that the Defendant
             has demonstrated a pattern of drug abuse that is related to the
             offense and the Defendant has refused treatment.

      {¶21} Our review of the trial court record reveals the trial court considered the

purposes and factors of felony sentencing in R.C. 2929.11 and R.C. 2929.12 before

imposing appellant’s sentence. Accordingly, we see no error with appellant’s sentence.



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      {¶22} As neither of appellant’s assignments of error are well taken, the sentence

of the Ashtabula County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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