[Cite as State v. Allenback, 2012-Ohio-751.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 7-11-17

        v.

ERIC L. ALLENBACK AKA
ERIC L. ILDEFONSO,                                      OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 09CR0060

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: February 27, 2012




APPEARANCES:

        Alan J. Lehenbauer for Appellant

        John H. Hanna for Appellee
Case No. 7-11-17


SHAW, P.J.

      {¶1} Defendant-appellant, Eric L. Allenback aka Eric L. Ildefonso

(“Allenback”), appeals the September 12, 2011 judgment of the Henry County

Court of Common Pleas convicting him on one count of felonious assault and

sentencing him to the maximum prison term of eight years.

      {¶2} On September 15, 2009, the Henry County Grand Jury returned a five-

count indictment alleging Allenback committed the following offenses. Count

One: aggravated burglary, in violation of R.C. 2911.11(A)(1), a felony of the first

degree; Count Two: kidnapping, in violation of R.C. 2905.01(A)(2), (C)(1), a

felony of the first degree; Count Three: kidnapping, in violation of R.C.

2905.01(A)(2), (C)(1), a felony of the second degree; Count Four: kidnapping, in

violation of R.C. 2905.01(A)(2), (C)(1), a felony of the second degree; Count

Five: felonious assault, in violation of 2903.11(A)(1), a felony of the second

degree. All five counts were charged with additional firearm specifications.

      {¶3} The charges stemmed from an incident on August 11, 2009, in which

Allenback and a friend, John Kline, went to the home of Kline’s estranged ex-

girlfriend, Holli Balazs. The victim, Jason Westfall, answered the door at Balazs’

home. Upon Westfall opening the door, Allenback tasered Westfall a number of

times. Allenback and Kline then began to severely beat Westfall as he waivered in

and out of consciousness. The record indicates that every time Westfall came to,


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Allenback and Kline would continue to beat him by kicking and punching him in

the head and the side. Allenback and Kline then forced Westfall into a vehicle.

Balazs and Balazs’ two-year-old child were also placed in the vehicle. Allenback

continued to beat Westfall, which included punching him and wrapping the seat

belt around his neck. Allenback also completely severed a portion of Westfall’s

ear from his head with a knife during the beating. Allenback and Kline released

Balazs and her child to a safe place, but drove Westfall to Toledo and dropped him

off in the street, where EMS eventually found Westfall and transported him to the

hospital.

       {¶4} On November 3, 2009, Allenback appeared for arraignment where the

issue of his competency to stand trial was raised. On November 5, 2011, the trial

court ordered Allenback to be referred to the Court Diagnostic and Treatment

Center for a competency evaluation.

       {¶5} On December 19, 2009, the trial court held a competency hearing.

The report of the Court Diagnostic and Treatment Center was admitted into

evidence. This report concluded that Allenback was incompetent to stand trial, but

had a substantial probability of being restored to competency within one year. The

trial court ordered Allenback to be held as an in-patient at the Northwest Ohio

Psychiatric Hospital in Toledo for treatment and re-evaluation of competency.




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       {¶6} On June 24, 2010, the trial court revisited the issue of Allenback’s

competency to stand trial. At this hearing, a second report of the Court Diagnostic

and Treatment Center was admitted into evidence. This report concluded that

Allenback was now competent to stand trial.

       {¶7} On June 30, 2010, Allenback entered a plea of not guilty by reason of

insanity (“NGRI”) to the five counts listed in the indictment.

       {¶8} On November 16, 2010, Allenback filed a motion for psychological

evaluation, requesting an independent psychological evaluation relating to his

NGRI pleas.      The trial court subsequently granted Allenback’s motion for

psychological evaluation.

       {¶9} On March 22, 2011, Allenback withdrew his NGRI pleas and entered

a plea of not guilty to the charges.

       {¶10} On July 22, 2011, the trial court held a hearing. The prosecution

moved to dismiss the firearm specification attached to Count Five of the

indictment, which was granted by the trial court. The prosecution also notified the

trial court of a plea arrangement with Allenback. The prosecution would be

dismissing Counts One through Four in exchange for Allenback entering a plea of

no contest to Count Five, as amended, charging second degree felonious assault

with no firearm specification. The prosecution stated on the record that it would

be recommending the maximum sentence of eight years in prison, but that this was


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not a joint sentence recommendation. The trial court subsequently conducted a

Crim.R. 11 plea colloquy with Allenback on the record, correctly noting that

Allenback would be subject to a mandatory period of three years of postrelease

control. Allenback then withdrew his former plea of not guilty and pleaded no

contest to Count Five.

      {¶11} On September 6, 2011, Allenback appeared for sentencing. The trial

court heard arguments from both sides regarding the aggravating and mitigating

circumstances relevant to Allenback’s sentencing. The trial court then sentenced

Allenback to the maximum sentence of eight years in prison. However, the trial

court incorrectly stated both on the record and its September 12, 2011 Judgment

Entry journalizing the conviction and sentence that Allenback is subject to a

mandatory five year period of postrelease control.

      {¶12} Allenback now appeals, asserting the following assignments of error.

                         ASSIGNMENT OF ERROR NO. I

      THE TRIAL COURT ERRED BY                           SENTENCING
      APPELLANT  TO THE MAXIMUM                           TERM   OF
      IMPRISONMENT.

                         ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT ERRED IN IMPOSING A FIVE YEAR
      TERM OF POST RELEASE CONTROL FOR A FELONY OF
      THE SECOND DEGREE.




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                             First Assignment of Error

       {¶13} In his first assignment of error, Allenback argues that the trial court

erred in sentencing him to the maximum prison term of eight years for his

conviction for a second degree felonious assault offense. In particular, Allenback

maintains that there are mitigating facts and circumstances in the record which

warranted the trial court imposing a lesser prison term.

       {¶14} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16–07–07,

2007–Ohio–5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003–P–0007, 2004–

Ohio—1181. A meaningful review means “that an appellate court hearing an

appeal of a felony sentence may modify or vacate the sentence and remand the

matter to the trial court for re-sentencing if the court clearly and convincingly

finds that the record does not support the sentence or that the sentence is otherwise

contrary to law.” Daughenbaugh, citing Carter at ¶ 44; R.C. 2953.08(G). 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,




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139 Ohio App.3d 827, 835 (12th Dist.2000).1

        {¶15} Additionally, “[a] sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing * * *

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).

        {¶16} Here, Allenback argues that his criminal conduct, including past

convictions, are episodic and occurred only in correlation with his history of

chronic mental illness. Allenback claims the record demonstrates that he is less

likely to commit future criminal offenses and pose a threat to the public when he is

being properly treated for his psychological condition. Allenback maintains that

while awaiting the resolution of this case, he has been medicated and

demonstrated an ability to successfully manage his mental illness.

        {¶17} On the record at the sentencing hearing, the trial court heard

arguments in mitigation from Allenback’s counsel as well as statements from

Allenback expressing accountability for his criminal conduct and asking for

leniency in sentencing. Prior to making its decision, the trial court noted that it



1
  We note that the Supreme Court of Ohio’s plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912, established a two-part test utilizing an abuse of discretion standard for appellate review of
felony sentencing decisions under R.C. 2953.08(G). Although this Court utilized our precedential clear and
convincing standard, affirmed and adopted by Kalish’s three dissenting Justices, we would have concluded
that Allenback’s sentence was proper under the Kalish plurality’s two-step approach as well.


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also reviewed the pre-sentencing investigation report, a letter from Allenback’s

mother and a letter from Allenback’s co-defendant, which stated that Allenback

was only involved in the assault on the victim at his co-defendant’s request.

       {¶18} Moreover, the record also demonstrates that the victim in this case,

Jason Westfall, has been unable to work since Allenback’s assault on him. As a

result of the injuries he sustained at the hands of Allenback, Westfall’s eyes are

still unable to focus and his left eye can no longer hold a line of sight. The record

also demonstrates that Allenback did not know the victim prior to the attack.

       {¶19} The trial court was in the best position to assess the credibility of

statements made in mitigation on Allenback’s behalf. The trial court stated on the

record that it considered the factors set forth in R.C. 2929.11 and 2929.12 in

reaching its ultimate determination to sentence Allenback to the maximum, eight

years in prison. Given all of the information before the trial court, we do not find

that the trial court erred in sentencing Allenback to the maximum sentence of eight

years in prison. Allenback’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶20} In his second assignment of error, Allenback argues that the trial

court erred when it imposed a mandatory five year period of postrelease control as

part of his sentence. Allenback was convicted of second degree felonious assault.

Section 2967.28(B)(2) of the Revised Code states that an offender convicted of a


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second degree felony that is not a felony sex offense shall be subject to a period of

three years of postrelease control. We note that the trial court properly advised

Allenback of postrelease control at the change of plea hearing. However, on the

record at the sentencing hearing and in its judgment entry of conviction and

sentence, the trial court incorrectly imposed a five year period of postrelease

control. Accordingly, pursuant State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–

6238, Allenback is entitled to be resentenced, but only for the limited purpose of

properly imposing the mandatory three years of postrelease control. Allenback’s

second assignment of error is sustained.

       {¶21} For the foregoing reasons, the judgment is affirmed in part, reversed

in part and remanded for further proceedings consistent with this opinion.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part and
                                                               Cause Remanded

PRESTON and ROGERS, J.J., concur.

/jlr




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