[Cite as State v. Vanmeter, 2018-Ohio-3528.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-18-18

        v.

KURT W. VANMETER,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR2017 0388

                                     Judgment Affirmed

                          Date of Decision: September 4, 2018




APPEARANCES:

        Linda Gabriele for Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-18


PRESTON, J.

       {¶1} Defendant-appellant, Kurt W. Vanmeter (“Vanmeter”), appeals the

March 19, 2018 judgment entry of sentence of the Allen County Court of Common

Pleas. We affirm.

       {¶2} This case stems from the November 24, 2017 overdose death of Frank

Coleman (“Coleman”). (Doc. No. 2). Vanmeter allegedly provided Coleman the

substance which led to Coleman’s overdose death. (Id.). On January 11, 2018, the

Allen County Grand Jury indicted Vanmeter on three counts: Count One of

involuntary manslaughter in violation of R.C. 2903.04(A), (C), a first-degree felony;

Count Two of corrupting another with drugs in violation of R.C. 2925.02(A)(3),

(C)(1), a second-degree felony; and Count Three of trafficking in heroin in violation

of R.C. 2925.03(A)(1), (C)(6)(a), a fifth-degree felony. (Doc. No. 3).

       {¶3} On January 19, 2018, Vanmeter appeared for arraignment and entered

pleas of not guilty. (Doc. No. 10).

       {¶4} On January 31, 2018, Vanmeter withdrew his plea of not guilty and

entered a guilty plea, under a negotiated plea agreement, to Count One of the

indictment. (Doc. Nos. 19, 20). In exchange for his change of plea, the State agreed

to dismiss Counts Two and Three of the indictment. (Doc. No. 19). The trial court

accepted Vanmeter’s guilty plea, found him guilty, dismissed Counts Two and

Three, and ordered a presentence investigation (“PSI”). (Doc. No. 20).


                                         -2-
Case No. 1-18-18


       {¶5} On March 16, 2018, the trial court sentenced Vanmeter to 11 years in

prison. (Doc. No. 28). The trial court filed its judgment entry of sentence on March

19, 2018. (Id.).

       {¶6} On April 16, 2018, Vanmeter filed a notice of appeal. (Doc. No. 31).

He raises two assignments of error for our review, which we address together.

                            Assignment of Error No. I

       The Maximum Sentence Imposed by the Trial Court was
       Excessive and Contrary to Law.

                           Assignment of Error No. II

       There is Clear and Convincing Evidence that the Record Does Not
       Support the Maximum Sentence Imposed by the Trial Court.

       {¶7} In his assignments of error, Vanmeter argues that the trial court erred

by imposing the maximum term of imprisonment. In particular, he argues that “the

trial court failed to properly consider the principles and purposes of felony

sentencing” under R.C. 2929.11 in imposing his sentence. He contends that the trial

court abused its discretion by concluding that the factors indicating that Vanmeter

is likely to commit future crimes outweighed the factors indicating that he is not

likely to commit future crimes.         He also contends that his sentence is

disproportionate to sentences in similar cases.

       {¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not


                                         -3-
Case No. 1-18-18


support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. 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.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

       {¶9} “It is well-established that the statutes governing felony sentencing no

longer require the trial court to make certain findings before imposing a maximum

sentence.” State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 29,

citing State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14

(“Unlike consecutive sentences, the trial court was not required to make any

particular ‘findings’ to justify maximum prison sentences.”) and State v. Hinton, 8th

Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 9 (“The law no longer requires the

trial court to make certain findings before imposing a maximum sentence.”).

Rather, “‘trial courts have full discretion to impose any sentence within the statutory

range.’”    State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 10,

quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing

State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. In this case,

as a first-degree felony, involuntary manslaughter carries a non-mandatory sanction

of 3-years to 11-years imprisonment. R.C. 2903.04(A), (C); R.C. 2929.14(A)(1).


                                           -4-
Case No. 1-18-18


(See Mar. 16, 2018 Tr. at 16); R.C. 2929.13(F)(6). Because the trial court sentenced

Vanmeter to 11 years in prison, the trial court’s sentence falls within the statutory

range. “[A] sentence imposed within the statutory range is ‘presumptively valid’ if

the [trial] court considered applicable sentencing factors.” Maggette at ¶ 31, quoting

State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.

       {¶10} “R.C. 2929.11 provides, in pertinent part, that the ‘overriding purposes

of felony sentencing are to protect the public from future crime and to punish the

offender.’” Smith at ¶ 10, quoting R.C. 2929.11(A). “In advancing these purposes,

sentencing courts are instructed to ‘consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or both.’” Id., quoting

R.C. 2929.11(A). “Meanwhile, R.C. 2929.11(B) states that felony sentences must

be ‘commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim’ and also be consistent with sentences

imposed in similar cases.” Id., quoting R.C. 2929.11(B). “In accordance with these

principles, the trial court must consider the factors set forth in R.C. 2929.12(B)-(E)

relating to the seriousness of the offender’s conduct and the likelihood of the

offender’s recidivism.” Id., citing R.C. 2929.12(A). “‘A sentencing court has broad

discretion to determine the relative weight to assign the sentencing factors in R.C.




                                         -5-
Case No. 1-18-18


2929.12.” Id. at ¶ 15, quoting State v. Brimacombe, 195 Ohio App.3d 524, 2011-

Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio St.3d 208, 215 (2000).

       {¶11} “Although the trial court must consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.

2929.12, the sentencing court is not required to ‘state on the record that it considered

the statutory criteria or discuss[ed] them.’” Maggette at ¶ 32, quoting State v.

Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995). “‘A trial court’s statement that

it considered the required statutory factors, without more, is sufficient to fulfill its

obligations under the sentencing statutes.’” Id., citing State v. Abrams, 8th Dist.

Cuyahoga No. 103786, 2016-Ohio-4570, ¶ 14, quoting State v. Payne, 114 Ohio

St.3d 502, 2007-Ohio-4642, ¶ 18. At Vanmeter’s sentencing hearing and in its

sentencing entry, the trial court considered the R.C. 2929.11 and 2929.12 factors.

(Mar. 16, 2018 Tr. at 16-20); (Doc. No. 28).

       {¶12} In particular, in addressing the seriousness of Vanmeter’s conduct, the

trial court found that “obviously the harm suffered by the victim is serious * * *, it’s

the ultimate harm” even though it is a harm “that would be present in any

manslaughter case, so it doesn’t necessarily make it more serious * * *.” (Mar. 16,

2018 Tr. at 16); (Doc. No. 28). See R.C. 2929.12(B)(2). The trial court also found

that “there was a relationship with the victim * * * that facilitated the fact that * * *




                                          -6-
Case No. 1-18-18


the offense was committed.” (Mar. 16, 2018 Tr. at 17); (Doc. No. 28). See R.C.

2929.12(B)(6). Applying the factors under R.C. 2929.12(C), the trial court stated:

       I don’t find any of the less serious factors to apply * * * under the

       circumstances, [but] I suppose it could be argued that the victim by

       using the heroin may have somehow facilitated it * * * if that’s a factor

       * * * but I don’t give that any weight to outweigh the seriousness

       factors that I’ve recited.

(Mar. 16, 2018 Tr. at 17). In assessing whether Vanmeter was likely to commit

future crimes, the trial court weighed against Vanmeter his prior record and found

that Vanmeter “hasn’t responded favorably to the sanctions previously imposed.”

(Id. at 17-19); (Doc. No. 28). See R.C. 2929.12(D)(3). The trial court also found

that Vanmeter “demonstrated a pattern of substance abuse obviously related to the

offense; he does acknowledge that, I’ll give him credit for that.” (Mar. 16, 2018 Tr.

at 19-20); (Doc. No. 28). See R.C. 2929.12(D)(4). Further, the trial court noted that

Vanmeter’s Ohio Risk Assessment System score was a “33,” “which indicates a

high risk of reoffending.” (Mar. 16, 2018 Tr. at 20). In assessing the factors under

R.C. 2929.12(E), the trial court found that Vanmeter “expresses remorse.” (Id.);

(Doc. No. 28). See R.C. 2929.12(E)(5).

       {¶13} On appeal, Vanmeter argues that the trial court abused its discretion in

weighing the R.C. 2929.12 factors to sentence him to a maximum term of


                                         -7-
Case No. 1-18-18


imprisonment. In particular, he challenges the trial court’s conclusion that he is

likely to commit future crimes because, according to Vanmeter, the trial court did

not apply the appropriate weight to the mitigating evidence. Vanmeter’s argument

is erroneous because “it is ‘[t]he trial court [that], in imposing a sentence, determines

the weight afforded to any particular statutory factors, mitigating grounds, or other

relevant circumstances.’” State v. McKennelly, 12th Dist. Butler No. CA2017-04-

055, 2017-Ohio-9092, ¶ 15, quoting State v. Steger, 12th Dist. Butler No. CA2016-

03-059, 2016-Ohio-7908, ¶ 18, citing State v. Stubbs, 10th Dist. Franklin No. 13AP-

810, 2014-Ohio-3696, ¶ 16. “The fact that the trial court chose to weigh various

sentencing factors differently than how appellant would have weighed them does

not mean the trial court erred in imposing appellant’s sentence.” Id.

       {¶14} After weighing the recidivism factors, the trial court ultimately

concluded that Vanmeter failed to overcome the presumption in favor of prison after

concluding that he is likely to commit future crimes. In concluding that Vanmeter

is likely to commit future crimes, the trial court found that Vanmeter has a history

of criminal convictions and has not responded favorably to sanctions previously

imposed for criminal convictions, that he demonstrated a pattern of drug abuse that

is related to the offense, and that he received a score indicative of a high risk of

reoffending under the Ohio Risk Assessment System. Those findings are clearly

and convincingly supported by the record. The PSI details Vanmeter’s prior record.


                                          -8-
Case No. 1-18-18


In particular, the PSI reflects that Vanmeter has a prior felony-drug conviction and

has a prior drug-related probation violation. (PSI at 5-6). The record reflects

Vanmeter’s history of drug abuse, including heroin—the drug which led to

Coleman’s overdose death. (Mar. 16, 2018 Tr. at 6-16, 19); (PSI at 4, 6, 8-9). The

Ohio Risk Assessment System results are also included in the record reflecting the

high-risk-of-reoffending score. (PSI at 12-18).

       {¶15} In addition to the specific factors listed under R.C. 2929.12, the statute

permits the trial court to consider “any other factors relevant to achieving [the]

purposes and principles of sentencing,” including “any other relevant factors”

regarding the seriousness of the offender’s conduct and likelihood of recidivism.

R.C. 2929.12(A)-(E). As such, it was within the trial court’s discretion to conclude

that the imposition of a prison sentence is “the most effective way to comply with

the purposes and principles of sentencing set forth in section 2929.11 of the Revised

Code.” R.C. 2929.12(A). See also R.C. 2929.13(D). For these reasons, the trial

court did not abuse its discretion by concluding that Vanmeter did not overcome the

presumption in favor of prison. Accordingly, we will not reverse Vanmeter’s

sentence because it is within the permissible statutory range, the trial court properly

considered the criteria found in R.C. 2929.11 and 2929.12, and the record clearly

and convincingly supports the trial court’s findings under R.C. 2929.11 and

2929.12. See Maggette, 2016-Ohio-5554, at ¶ 36.


                                         -9-
Case No. 1-18-18


       {¶16} Vanmeter further argues that his sentence is disproportionate to

sentences in similar cases. “‘A defendant alleging disproportionality in felony

sentencing has the burden of producing evidence to “indicate that his sentence is

directly disproportionate to sentences given to other offenders with similar records

who have committed these offenses * * *.”’” State v. Norman, 3d Dist. Seneca No.

13-13-50, 2014-Ohio-3010, ¶ 17, quoting State v. Ewert, 5th Dist. Muskingum No.

CT2012-0002, 2012-Ohio-2671, ¶ 31, quoting State v. Breeden, 8th Dist. Cuyahoga

No. 84663, 2005-Ohio-510, ¶ 81. “If a defendant fails to argue to the trial court that

his sentence is not consistent with or proportionate to sentences imposed for similar

crimes committed by similar offenders, then the defendant waives that issue for

appeal.” Id., citing Ewert at ¶ 31, citing State v. Santiago, 8th Dist. Cuyahoga No.

95516, 2011-Ohio-3058, ¶ 42 and State v. Lycans, 8th Dist. Cuyahoga No. 93480,

2010-Ohio-2780, ¶ 5.

       {¶17} Not only did Vanmeter fail to raise the issue of sentence

proportionality before the trial court, he also failed to offer any information to the

trial court concerning sentences imposed for similar crimes committed by similar

offenders. Id. at ¶ 19. As such, Vanmeter waived this issue on appeal.

       {¶18} For these reasons, Vanmeter’s assignments of error are overruled.




                                        -10-
Case No. 1-18-18


       {¶19} 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, P.J. and ZIMMERMAN, J., concur.

/jlr




                                        -11-
