[Cite as State v. Kline, 2012-Ohio-4345.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 7-12-03

        v.

JOHN A. KLINE, JR.,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                             Trial Court No. 09 CR 38

                                       Judgment Affirmed

                          Date of Decision: September 24, 2012




APPEARANCES:

        John P. Goldenetz for Appellant

        John H. Hanna for Appellee
Case No. 7-12-03


WILLAMOWSKI, J.

      {¶1} Defendant-appellant John A. Kline (“Kline”) brings this appeal from

the judgment of the court of Common Pleas of Henry County finding him guilty of

one count of felonious assault with a gun specification. For the reasons set forth

below, the judgment is affirmed.

      {¶2} On August 11, 2009, Kline and Eric Allenback (“Allenback”) went to

the home of Holli Balazs (“Balazs”). Balazs was a prior girlfriend of Kline and

the mother of his son. Upon entering the home, Kline and Allenback encountered

Jason Westfall (“Westfall”), who was dating Balazs at that time. Either Kline or

Allenback used a taser on Westfall to incapacitate him. Both Kline and Allenback

proceeded to physically assault Westfall over an approximate two hour period.

Balazs retrieved a handgun in an attempt to stop the attack, only to have Kline

grab it from her. He then struck Westfall in the head with the weapon. After

beating Westfall into a state of unconsciousness, Kline and Allenback placed

Westfall, Balazs, and the child, into a car and drove him to Toledo, Ohio. Kline

and Allenback dumped Westfall from the car and left him lying in the street in a

neighborhood in Toledo. They then left with Balazs and the child. Westfall was

able to get to a house and emergency services were called. Westfall was taken to a

nearby hospital where he remained for three days due to his injuries.




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       {¶3} On August 14, 2009, the Henry County Grand Jury indicted Kline on

five separate counts: 1) aggravated burglary in violation of R.C. 2911.11(A)(1), a

felony of the first degree; 2) kidnapping in violation of R.C. 2905.01(A)(2)(C)(1),

a   felony   of   the   first   degree;   3)    kidnapping   in   violation   of   R.C.

2905.01(A)(2)(C)(1), a felony of the second degree; 4) kidnapping in violation of

R.C. 2905.01(A)(2)(C)(1), a felony of the second degree; and 5) felonious assault

in violation of R.C. 2903.11(A)(1), a felony of the second degree. All of the

counts included a firearm specification. Kline entered a plea of not guilty to all

counts.

       {¶4} On May 10, 2010, Kline entered a plea of no contest to count five of

the indictment. In exchange, the State agreed to dismiss the remaining four counts

of the indictment. The trial court accepted the plea and entered a judgment of

guilty to the felonious assault and the gun specification as to count five of the

indictment. A sentencing date was set and a pre-sentence investigation (“PSI”)

was ordered.

       {¶5} On June 9, 2010, the sentencing hearing was held. The trial court

ordered Kline to serve the maximum sentence of eight years in prison for the

felonious assault and three years in prison on the gun specification. The sentence

for the gun specification was required to be served consecutively to the sentence

for the felonious assault for a total prison term of eleven years. In addition, the


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trial court ordered restitution in the amount of $16,377.77 to be paid by Kline to

Westfall. However, the trial court also ordered that additional restitution could be

ordered and that the restitution was joint and several with Allenback. Kline

appealed from this judgment.                  However, on December 27, 2010, this court

dismissed the appeal for lack of a final, appealable order.1                       The matter was

remanded to the trial court for entry of a final, appealable order. On January 3,

2012, Kline filed a motion for the trial court to reconsider the amount of restitution

and allocate damages between the co-defendants.                          The trial court denied the

motion on January 13, 2012, claiming that it did not retain jurisdiction to modify

the previous order. The trial court then limited the amount of restitution to the

previously ordered amount of $16,377.77. Kline appeals from these judgments

and raises the following assignments of error.

                                     First Assignment of Error

          The maximum sentence imposed on [Kline] was not supported
          by the record.

                                   Second Assignment of Error

          The trial court erred in ordering restitution which was not
          supported by the record.




1
    The amount of restitution cannot be left open for future determination.

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                            Third Assignment of Error

       The trial court erred in allowing inflammatory evidence at
       sentencing without a finding or an agreement that its admission
       was part of a plea bargain.

                           Fourth Assignment of Error

       The trial court erred in refusing to hold an evidentiary hearing
       to allocate responsibility for damages between the co-offenders
       after announcing that the co-offenders would be jointly and
       severally liable.

In the interests of clarity, the assignments of error will be addressed out of order.

       {¶6} The first assignment of error alleges that the maximum sentence was

not supported by the record. Kline argues that the record does not support the

maximum sentence because there were mitigating factors.

       When determining the appropriate sentence, the trial court may
       consider charges and their supporting facts that are dismissed
       pursuant to a plea agreement when the defendant is entering a
       plea to reduced charges. State v. Bowser, 186 Ohio App.3d 162,
       2010-Ohio-951, 926 N.E.2d 714. “[T]rial courts have full
       discretion to impose a prison sentence within the statutory range
       and are no longer required to make findings or give their
       reasons for imposing maximum, consecutive, or more than the
       minimum sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-
       Ohio-855, ¶37, 846 N.E.2d 1.

State v. Triggs, 3d Dist. No. 12-10-03, 2010-Ohio-4178, ¶3.

       {¶7} A review of the record in this case shows that although Kline argues

that he was not the primary aggressor, the victim’s reports contradict Kline’s

claims. According to the information in the PSI, Kline was actively engaged in


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beating the defendant and repeatedly threatened to kill Westfall. Westfall also

reported that Kline wrapped him in a sheet and blanket and then placed him into

the vehicle where he was repeatedly assaulted until he was thrown out of the

vehicle. This version of what happened was supported by the report of Balazs. In

addition, the State presented copies of numerous texts from Kline to Balazs in

which he threatened to kill Westfall. Given this information, the trial court could

properly conclude that Kline’s version of events, that things just “spiraled out of

control” and that he had sought medical treatment for Westfall, was not credible.

Based upon the information before it, the trial court could reasonably conclude

that this was one of the worst forms of the offense and could sentence Kline to a

maximum sentence. Since he was sentenced prior to the effective date of H.B. 86,

no findings were required. The sentence imposed was within the statutory range

and there are no allegations that the trial court did not consider the statutory

factors set forth in R.C. 2929.11 and R.C. 2929.12. Thus, the first assignment of

error is overruled.

       {¶8} In the third assignment of error, Kline claims that the trial court erred

in viewing inflammatory images during sentencing without the agreement of

Kline. At a sentencing hearing, “the offender, the prosecuting attorney, the victim

or the victim’s representative in accordance with [R.C. 2953.08] * * * may present

information relevant to the imposition of the sentence in the case.”            R.C.


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2929.19(A). Kline argues that the photos of Westfall’s injury were inflammatory

and caused the trial court to impose the maximum sentence. This court need not

determine whether the photos were in fact inflammatory. As a matter of law, a

reviewing court presumes that a judge will consider only relevant, material, and

competent evidence. State v. Post, 32 Ohio St.3d 380, 384 (1987). Thus absent

evidence that the trial court improperly considered any improper evidence, the

judgment will not be reversed. State v. Simko, 71 Ohio St.3d 483, 491 (1994).

      {¶9} A review of the record finds that the trial court stated the basis for the

sentence imposed.

      The Court: The rendition of the history of these two men, the
      victim and the defendant, with this mutual girlfriend, the court
      could care less about. This isn’t’ high school. When persons
      can’t control their passions, there’s a place those persons need to
      be and it’s prison. Now the court has listened to the defendant’s
      version of some of the facts that occurred that night and is
      aware, according to that version, some of the facts may be in
      dispute. There are some facts that are not in dispute. This
      defendant came to where this victim was that night; uninvited.
      Weapons, multiple weapons were involved in the commission of
      this crime. The extent of the serious physical and emotional
      injuries caused to the victim in this case are (sic) not in dispute.
      The defendant’s criminal record is not in dispute. His record of
      assault and battery and violation of a protection order in the
      state of Nebraska isn’t in dispute. His violating his probation on
      that offense isn’t in dispute.

      The Court finds the defendant’s version of self-defense which
      was the catalyst for this offense, to not be credible. The Court
      finds the defendant’s version of trying to seek out medical aid
      for this victim, the court finds not credible. In one of the more
      preposterous statements possibly I’ve ever heard in a criminal

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      sentencing is the statement the “defendant didn’t intentionally
      hurt [Westfall].” One cannot consider the serious extent of his
      injuries and come to that conclusion.

      The factors the court is to consider in every sentence are the
      seriousness and recidivism factors and I want to review those as
      they apply to the facts in this case. There is no question this
      victim suffered serious physical and psychological harm and
      economic harm to the extent that he is not able to work. His
      victim impact statement graphically describes that he is still
      suffering from emotional results of this offense in terms of his
      fear when anyone comes to his door. He rather simply and
      basically describes the fear that he experiences and the
      emotional impact this crime has had on him. Three days in ICU,
      the photographs introduced today at the sentencing demonstrate
      the very serious nature of the injuries that were inflicted here.
      The relationship to the extent the girlfriend was involved
      mutually between them --- the relationship with the victim
      facilitated this offense. Those are the seriousness factors that are
      present in this case.

      In terms of recidivism, the court must consider the fact that he
      failed previously on probation in the state of Nebraska. And as I
      recall, there was some evidence of drinking or alcohol abuse that
      night by the defendant.

      The principle offense of felonious assault, being a second degree
      felony, it carries a presumption of prison and certainly prison is
      required in this case in addition to the mandatory three years on
      the gun specification. The Court finds that to impose the
      shortest prison term for the principle offense would demean the
      seriousness of this offense. The very serious nature of the
      injuries inflicted, the nature of the crime committed, a minor
      child being present during the assault, the use of weapons
      against this victim – multiple weapons, taser, knife, gun; the
      continuous course of conduct of this continual beating and then
      leaving the victim to fend for himself, combined with the
      defendant’s prior record, all are reasons which justify the
      imposition of the longest prison term to be imposed in this case.


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       The Court finds this offender committed the worst form of this
       offense.

Tr. 51-53. Although the trial court considered the photographs in determining the

seriousness of Westfall’s injuries, the trial court did not clearly give them excess

weight. The trial court also pointed to the fact that Westfall was in ICU for three

days following the assault. The trial court could reasonably infer from this fact

that the injuries were serious. Additionally, Westfall gave a statement about the

severity of the injuries. Thus, there is no evidence that even if the photographs

were inflammatory, that they affected the sentence.       The other evidence was

overwhelming and uncontradicted that the injuries were severe.            Without a

showing of prejudice, there is no error. The third assignment of error is overruled.

       {¶10} In the second and fourth assignments of error, Kline challenges the

order of restitution. The second assignment of error claims that the amount of

restitution is not supported by the record. A trial court has the authority to order

restitution as part of the sentence. R.C. 2929.18(A). The amount of restitution

from the defendant to the victim shall be based on the victim’s economic loss.

R.C. 2929.18(A)(1). “[T]he court may base the amount of restitution it orders on

an amount recommended by the victim, the offender, a presentence investigation

report, estimates or receipts indicating the cost of repairing or replacing property,

and other information provided that the amount the court orders as restitution shall

not exceed the amount of the economic loss suffered by the victim as a direct and

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proximate result of the commission of the offense.” Id.        A review of the record

in this case indicates that Westfall stated in his victim impact statement that his

medical bills at the time of sentencing were $16,377.77. Kline did not object to

this amount at the hearing. Since this amount was that recommended by the

victim and represented the economic loss suffered by the victim, the trial court did

not err in ordering Kline to pay $16,377.77 in restitution to Westfall. The second

assignment of error is overruled.

       {¶11} In the fourth assignment of error, Kline alleges that the trial court

erred by not apportioning the restitution between the co-defendants. This court

notes that although the court denied the motion to apportion the restitution based

upon a lack of jurisdiction, the trial court was incorrect.          When this court

dismissed the prior appeal due to lack of a final, appealable order, that meant that

the trial court still had the jurisdiction to consider the amount of restitution. The

trial court’s jurisdiction does not terminate until a final, appealable order is issued.

However, this does not affect the current appeal.

       {¶12} Here, Kline argues that the trial court should have apportioned the

amount of restitution between the two co-defendants instead of ordering that his

restitution was joint and several. However, Kline presents no legal authority for

his claim that the trial court had a duty to apportion the damages. The statute

allowing the imposition of restitution does not require apportionment. See R.C.


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2929.18. Instead, as discussed above, it allows for the trial court to order complete

restitution orders against any defendant.      The fourth assignment of error is

overruled.

       {¶13} Having found no error prejudicial to the defendant, the judgment of

the Court of Common Pleas of Henry County is affirmed.

                                                                Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr




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