[Cite as State v. Witt, 2017-Ohio-7441.]




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




STATE OF OHIO,
                                                           CASE NO. 2-17-09
       PLAINTIFF-APPELLEE,

       v.

STEPHEN C. WITT,                                           OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2016-CR-159

                                       Judgment Affirmed

                           Date of Decision: September 5, 2017



APPEARANCES:

        James F. Hearn, Jr. for Appellant

        R. Andrew Augsburger for Appellee
Case No. 2-17-09


WILLAMOWKSI, J.

       {¶1} Defendant-appellant Stephen C. Witt (“Witt”) appeals the judgment of

the Auglaize County Court of Common Pleas, alleging that the trial court abused its

discretion in ordering Witt to serve the maximum sentence allowed under the law

for the crime of fleeing the scene of an accident that resulted in serious injury. For

the reasons set forth below, the judgment of the lower court is affirmed.

                           Facts and Procedural History

       {¶2} On June 25, 2016, Witt was charged with an OVI violation in Miami

County, Ohio. Sentencing Tr. 5. Witt was arraigned on this charge on June 27,

2016 and was released on his own recognizance. Id. While Witt was out on bond

on the Miami County OVI charge, he was involved in a motor vehicle accident on

July 2, 2016 in Auglaize County, Ohio. Doc. 1. In this incident, Witt, while driving

his vehicle, struck a parked minivan and two pedestrians standing outside of the

minivan. Plea Change Hearing Tr. 23. Both pedestrians suffered injuries. Id. Witt

fled the scene of the accident prior to the arrival of law enforcement. Id. This

incident in Auglaize County is the subject of this case. Roughly an hour after this

accident, on July 2, 2016, the Lima Police came upon Witt in Allen County, Ohio.

Ex. A. Witt was sitting in his vehicle, which was parked at a green light at an

intersection. Id. The police determined that Witt was operating a vehicle while

impaired and cited him accordingly. Id. This citation is the basis of a separate case



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in Allen County that was ongoing at the time of the present case from Auglaize

County. Plea Change Hearing Tr. at 24.

       {¶3} Three days after the accident in Auglaize County, on July 5, 2016, Witt

was involved in another accident in Delaware County. Sentencing Tr. 6. This

accident gave rise to yet another OVI charge against Witt in Delaware County. Id.

Ex. A.   Witt suffered serious injuries in the Delaware County accident, was

hospitalized, and sent to a nursing home in the Dayton area for recovery. Sentencing

Tr. 12-13. On September 29, 2016, while Witt was still in the nursing home, he was

indicted in Auglaize County on two counts of fleeing the scene of an accident that

resulted in serious physical harm in violation of R.C. 4549.02(A). Doc. 1. See R.C.

4549.02(B)(2)(a). On the same date, an arrest warrant for Witt was also issued in

Auglaize County. Doc. 6. In October of 2016, Witt was involved in an altercation

at the nursing home, which led the nursing home staff to call the police. Sentencing

Tr. at 12-13. After the police officers arrived at the nursing home, they discovered

the arrest warrant for Witt that had previously been issued from Auglaize County.

Id. The police then arrested Witt. Id.

       {¶4} On January 6, 2017, Witt accepted a plea agreement in which the second

charge filed against him would be dropped and in which he would plead guilty to

one count of fleeing the scene of an accident. Doc. 30. On January 6, 2017, the

trial court accepted Witt’s guilty plea but delayed sentencing until a presentence

investigation could be conducted. Doc. 31. During the presentence investigation

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(“PSI”), Witt told the PSI writer that he had no intention of following any orders

given to him by the trial court if he were placed on community control. Sentencing

Tr. 4-5.

       {¶5} On March 8, 2017, the trial court held Witt’s sentencing hearing. Id. at

1. Defense counsel argued that the four and a half months that Witt spent in jail

prior to this hearing was sufficient punishment, that no further prison term was

necessary for this offense, and that Witt should merely be placed on community

control. Id. at 9. The prosecution argued that Witt should serve more jail time. Id.

at 4. The prosecutor pointed to the comments that Witt made during the PSI and

argued, on the basis of Witt’s own statements, that community control was

insufficient to address Witt’s conduct. Id. at 4-5.

       {¶6} The prosecutor also referenced the three outstanding warrants for Witt’s

arrest that had been issued from Miami County, Allen County, and Delaware

County over Witt’s OVI charges in each of those counties. Id. at 5-7. The trial

court discussed these charges, considering the fact that all of these incidents

occurred within a very short time frame. Id. at 6. The prosecutor stated that further

action on these three charges had not been taken since the proceedings began against

Witt in Auglaize County. Id. at 5. The trial court also noted that the accident in

Auglaize County occurred while Witt was out on bond for the Miami County charge

and that Witt did not appear for his arraignment or a pretrial conference on his

Delaware County OVI charge. Id. at 7.

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      {¶7} Towards the end of the hearing, the trial court read from a report from

the nursing home where Witt was recovering from his injuries received in the

Delaware County crash. Id. at 12-13. The report read, in its relevant part, as

follows:

      He [Witt] used racially charged language, derogatory remarks,
      cursing and often yelling at staff and other residents. * * * After
      his behavior continued after repeated warnings, Doctor Patel
      discharged the offender for almost daily verbal abuse and leaving
      the facility when he became angry, refusing the follow the rules.
      When he was told he was being discharged, he began hitting
      objects with rage and the Administrator called Centerville police
      again to escort him from the facility. When police arrived, his
      warrant for Auglaize County surfaced and he was arrested * * *.

Id. After going through the history of this case, the trial court gave Witt the

maximum sentence of one year in prison in addition to post-release control. Doc.

40. Witt filed notice of appeal on March 31, 2017. Doc. 64.

                              Assignment of Error

      {¶8} In this appeal, Witt raises the following assignment of error:

      The trial court’s sentences the maximum allowed by law of
      defendant-appellant was unsupported by the record and was
      contrary to law and further constitutes an abuse of discretion in
      failing to properly follow the felony sentencing guidelines set forth
      in Ohio Revised Code 2929.11 and 2929.12.

In his brief, Witt argues that the trial court did not comply with the statutory

requirements governing the sentencing process and, in so doing, abused its




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discretion in ordering Witt to serve the maximum sentence for the crime of fleeing

the scene of an accident. 1 See R.C. 2929.11 and R.C. 2929.12.

        {¶9} In support of this claim, Witt points to the trial court’s mention of an

altercation involving Witt at the nursing home and argues that it was inappropriate

for the trial court to consider these facts as Witt was not charged or convicted of a

crime in relation to this incident. Witt also points to the factors in R.C. 2929.12(B)

that are used to determine whether “the offender’s conduct is more serious than

conduct normally constituting the offense” and argues that many of the factors do

not apply in his case, indicating that his conduct was not sufficiently serious to

warrant the maximum sentence. R.C. 2929.12(B). We, however, do not find these

arguments to be persuasive.

                                           Legal Standard

        {¶10} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give

its reasons for imposing maximum or more than minimum sentences.” State v.

Dayton, 3d Dist. Union No. 14-16-05, 2016-Ohio-7178, ¶ 15, quoting State v.

Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26-27, quoting, State v.

King, 2d Dist. Clark Nos. 2012-CA-25 and 2012-CA-26, 2013-Ohio-2021, ¶ 45.



1
  In his brief, Witt uses the standard set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124. However, Kalish was abrogated by State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231. Marcum held that “appellate courts may not apply the abuse-of-discretion standard in
sentencing term challenges.” Id. at ¶ 10. While the brief forms its arguments on the basis of Kalish, our
analysis will follow Marcum.

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Case No. 2-17-09


See State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 8

(holding “that trial courts have full discretion to impose a prison sentence within the

statutory range without the mandatory findings.”). However, R.C. 2929.11(A) does

require courts, in the process of sentencing offenders for felonious conduct, to “be

guided by the overriding purposes of felony sentencing.” R.C. 2929.11(A).

       The overriding purposes of felony sentencing are to protect the
       public from future crime by the offender and others 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. To
       achieve those purposes, the sentencing court shall 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. In this determination, “the trial court must comply with all applicable rules and

statutes * * *. State v. Wells, 2015-Ohio-3511, 41 N.E.3d 216, ¶ 22 (2d Dist.),

quoting State v. Eicholtz, 2d Dist. Clark No. 2012-CA-7, 2013-Ohio-302, ¶ 53.

Further, a sentence for a felonious crime must be “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).

       {¶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 ‘[s]tate on the record that it

considered the statutory criteria or discuss[ed] them.’” State v. Kegley, 3d Dist.

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Case No. 2-17-09


Crawford No. 3-16-06, 2016-Ohio-8467, ¶ 20, quoting State v. Maggette, 3d Dist.

Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 32, quoting State v. Polick, 101 Ohio

App.3d 428, 431, 655 N.E.2d 820, 822 (4th Dist.1995). A “trial court has full

discretion to impose any sentence within the authorized statutory range, and the

court is not required to make any findings or give its reasons for imposing maximum

or more than minimum sentences.” State v. Shreves, 2016-Ohio-7824, 74 N.E.3d

765, ¶ 14, quoting State v. Castle, supra, at ¶ 26 quoting, State v. King, supra, at ¶

45. “A trial court’s statement that it considered the required statutory factors,

without more, is sufficient to fulfill its obligations under the sentencing statutes.”

State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and 12-16-16, 2017-Ohio-2920,

¶ 12, quoting Maggette, supra, at ¶ 32.

         {¶12} “Ordinarily, appellate courts defer to trial courts’ broad discretion in

making sentencing decisions.” State v. Rahab, 2017-Ohio-1401, --- N.E.3d ---, ¶

19. “R.C. 2953.08(G)(2) allows an appellate court to increase, reduce, or otherwise

modify a sentence only when it clearly and convincingly finds that the sentence is

(1) contrary to law and/or (2) unsupported by the record.”2 State v. McGowan, 147

Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1, citing State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 24. See R.C. 2953.08(G)(2).



2
  We note that the trial court is given discretion in applying the statutory factors in the process of determining
an appropriate sentence. A misapplication of these factors in sentencing that rises to the level of an abuse of
discretion is clearly and convincingly contrary to law. Thus, we examine the record to determine whether
the trial court clearly and convincingly failed to act in accordance with the laws governing the imposition of
sentences.

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“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.’” State

v. Silknitter, 3d Dist. Union No. 14-16-07, 2017-Ohio-327, ¶ 7, quoting Marcum at

¶ 1.

                                   Legal Analysis

       {¶13} We will first address the assertion of the appellant that claims that the

trial court did not consider the relevant statutory factors contained in R.C. 2929.11

and R.C. 2929.12. Our review of the record shows that a number of relevant factors

were considered at length. In this case, the trial court ordered Witt’s sentence in a

journal entry that begins as follows:

       Defendant was afforded all rights pursuant to Criminal Rule 32.
       The court has considered the record, oral statements, any Victim
       Impact Statement and Pre-Sentence Report prepared, as well as
       the principles and purposes of sentencing under Ohio Revised
       Code 2929.11, and has balanced the seriousness and recidivism
       factors under Ohio Revised Code 2929.12.

Doc. 40. See Magette, supra, at ¶ 33; Silknitter, supra, at ¶ 9. This statement in the

journal entry is confirmed by the transcript of the sentencing hearing. The trial

judge inquired into the condition of the victims of the incident and into how Witt’s

offense impacted these people. Tr. 4. See R.C. 2929.12(B).

       {¶14} The trial judge considered, at length, Witt’s extensive criminal history

as documented in the PSI submitted to the court. Tr. 5. See R.C. 2929.12(D); R.C.

2929.12(E). The PSI confirmed that Witt committed the felony that is the subject


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of this case while he was out on bond for another criminal action in Miami County,

Ohio. Tr. 7, 15. See 2929.13(B)(1)(b)(xi); R.C. 2929.12(D)(1). Further, at the time

of this hearing, four different counties had initiated criminal proceedings against

Witt for similar offenses. Tr. 7. The acts that gave rise to these four separate charges

were all committed within a two-week timeframe in four different locations across

Ohio. Ex. A. Witt was also subject to an administrative license suspension as the

result of the Allen County OVI charge. Id.

       {¶15} The court also considered the fact that Witt had warrants for his arrest

out in three other counties for offenses similar to the crime committed in the present

case. Sentencing Tr. 7. Miami County had a warrant issued for Witt because he

failed to appear for two pretrial conferences. Ex. A. Allen County had a warrant

issued for Witt because he failed to appear for his arraignment. Id. Delaware

County had a warrant issued for Witt because he failed to appear for his arraignment

and another pretrial conference. Id. The prosecutor also brought up statements that

Witt made to the PSI writer in which Witt said that he would not abide by the orders

of the trial court if he were placed on community control. Sentencing Tr. 4. See

R.C. 2929.12(D)(5).

       {¶16} The trial court listened to defense counsel argue the mitigating factors,

such as Witt’s age and his physical condition. Sentencing Tr. at 8. See R.C.

2929.12(C)(4). The trial court also heard from Witt and engaged in a colloquy over

Witt’s behavior as reported in the PSI. Tr. 9-12. See R.C. 2929.12(C)(4). After

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hearing Witt’s statement, the trial court concluded that Witt was not taking

responsibility for his actions and was using injuries he had sustained in an accident

in 1996 as an excuse for his behavior.            Sentencing Tr. 14, 16.     See R.C.

2929.12(D)(5). R.C. 2929.12 directs trial courts to consider the factors listed in that

section of the Revised Code but also directs the trial court to “consider any other

factors that are relevant to achieving those purpose and principles of sentencing.”

R.C. 2929.12(A). The record shows that the trial court considered a variety of

relevant factors in reaching its determination.

       {¶17} Appellant also argues that the trial court relied too heavily on his

altercation at the nursing home in reaching its determination on sentencing. We

disagree. The record shows that this was just one of many facts that the trial court

considered in sentencing Witt. The incident at the nursing home was referenced by

the trial court in the process of questioning Witt and determining whether he was

remorseful. The incident was documented in the PSI report and was directly related

to the facts of this case as this altercation is how Witt was apprehended by the police

for the crime for which he was being sentenced. Ex. A. Thus, the trial court did

not, in considering this information, abuse its discretion or, in any way, act contrary

to the law.

       {¶18} Appellant’s final argument rests on R.C. 2929.12(B), which lists

factors that “[indicate] that the offender’s conduct is more serious than conduct

normally constituting the offense.” R.C. 2929.12(B). Appellant argues that the

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maximum sentence is inappropriate in this case because none of the factors listed in

R.C. 2929.12(B) is present in this case. However, the trial court has full discretion

to impose a sentence within the statutory range. See Shreves, supra, at ¶ 14. The

wording of R.C. 2929.12(B) directs the trial court to consider the factors listed in

the statute and “any other relevant factors” that may “[indicate] that the offender’s

conduct is more serious than conduct normally constituting the offense.” R.C.

2929.12(B). Thus, the presence of a factor listed in R.C. 2929.12(B) is not a

necessary condition for a trial court to order an offender to serve a maximum

sentence.

       {¶19} In the end, the trial court considered a wide variety of information to

render a determination. The record demonstrates that the trial court expressly

applied a number of the factors at the sentencing hearing that Ohio law directed it

to consider in evaluating this information in addition to other relevant factors

present in this case. Thus, we find that the sentence ordered in this case is supported

by the record. Further, we do not find evidence in the record that the trial court

clearly and convincingly failed to comply with the law in ordering the maximum

sentence for the crime of fleeing the scene of an accident. For this reason, Witt’s

sole assignment of error is overruled.




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                                   Conclusion

       {¶20} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Auglaize County Court of Common Pleas is

affirmed.

                                                              Judgment Affirmed



ZIMMERMAN and SHAW, J.J., concur.

/hls




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