[Cite as State v. Lehmkuhle, 2013-Ohio-2610.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              VAN WERT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 15-13-01

        v.

ERIK R. LEHMKUHLE,                                       OPINION

        DEFENDANT-APPELLANT.




               Appeal from Van Wert County Common Pleas Court
                         Trial Court No. CR 11-11-146

                                     Judgment Affirmed

                             Date of Decision: June 24, 2013




APPEARANCES:

        Gregory W. Unterbrink for Appellant

        Eva J. Yarger for Appellee
Case No. 15-13-01


WILLAMOWSKI, J.

      {¶1} Defendant-appellant Erik R. Lehmkuhle (“Lehmkuhle”) brings this

appeal from the judgment of the Court of Common Pleas of Van Wert County

finding him guilty of one count of gross sexual imposition. For the reasons set

forth below, the judgment is affirmed.

      {¶2} On November 4, 2011, The Van Wert County Grand Jury indicted

Lehmkuhle on seven counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies

of the first degree, five counts of gross sexual imposition in violation of R.C.

2907.05(A)(4), felonies of the third degree, and one count of attempted rape in

violation of R.C. 2907.02(A)(1)(b) and R.C. 2923.02(A), a felony of the second

degree. Lehmkuhle entered pleas of not guilty to all charges. On June 21, 2012,

the State moved to dismiss seven counts of the indictment, leaving four counts of

rape, one count of gross sexual imposition, and one count of attempted rape. The

trial was then scheduled for November 5, 2012.

      {¶3} On October 31, 2012, a change of plea hearing was held. Lehmkuhle

then entered an Alford Plea to one count of gross sexual imposition.         The

remaining charges were dismissed. The trial court accepted the plea and found

Lehnkuhle guilty of gross sexual imposition. A sentencing hearing was held on

December 12, 2012. The trial court sentenced Lehmkuhle to serve forty-eight

months in prison. Lehmkuhle was given credit for 458 days of time served.


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Case No. 15-13-01


Lehmkuhle appeals from this judgment and raises the following assignments of

error.

                            First Assignment of Error

         The trial court erred when imposing a forty-eight (48) month
         sentence when the sentence was not supported by the record on
         an Alford guilty plea.

                           Second Assignment of Error

         The trial court erred in not determining whether the State had
         sufficient evidence to convict after new evidence in the form of a
         retraction of victim’s accusation was received by the court after
         the acceptance of an Alford guilty plea.

         {¶4} In the first assignment of error, Lehmkuhle claims that his sentence

was not supported by the record.

         Trial courts have full discretion to impose any sentence with the
         statutory range. State v. Saldana, 3d Dist. No. 12–12–09, 2013–
         Ohio–1122, ¶ 20. * * * However, the trial court must still
         consider the purposes of felony sentencing as set forth in R.C.
         2929.11 and be guided by the sentencing factors set forth in R.C.
         2929.12 and R.C. 2929.13 when determining the appropriate
         sentence. Saldana at ¶ 20–21.

State v. Walton, 3d Dist. Nos. 16-12-13, 16-12-14, 2013-Ohio-2147, ¶4. Here,

Lehmkuhle was convicted of a felony of the third degree. The range of sentences

for the offense was twelve, eighteen, twenty-four, thirty, thirty-six, forty-two,

forty-eight, fifty-four, or sixty months.      R.C. 2929.14(A)(3).   The trial court

indicated that it considered the sentencing factors pertaining to the seriousness of

the offense and the likelihood of recidivism along with all other factors as set forth

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Case No. 15-13-01


in R.C. 2929.12 and 2929.13(B). Tr. 53. In addition, there was a pre-sentence

investigation done, a letter written by the victim in this case, and a letter written by

the victim’s guardian which was also reviewed by the trial court. The trial court

acknowledged that while the victim’s letter did not recant the allegations, it did

raise questions about what had really happened.              Tr. 53.    The sentence

recommendation in the PSI was for a term of 54 months. The trial court sentenced

Lehmkuhle to a prison term of 48 months. This is within the statutory permissible

sentences. The trial court considered all of the statutory factors and considered the

information in the PSI as well as the letters. Thus, the trial court did not err in

imposing the sentence it chose. The first assignment of error is overruled.

       {¶5} In the second assignment of error, Lehmkuhle alleges that the trial

court erred in not reviewing the acceptance of the Alford plea after receiving the

letter from the victim. Initially, this court notes that Lehmkuhle never asked to

withdraw his plea. In addition, Lehmkuhle never even suggested to the court that

the facts supporting the plea should be reviewed a second time. A review of the

record shows that the victim did write a letter to the court stating that she believed

Lehmkuhle had been punished enough and that she wished to see him again. A

second letter was written by the victim’s guardian. This letter called into question

whether the alleged incidents ever occurred. However, the guardian was merely

speculating based upon her interactions with the victim and could not say that the


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Case No. 15-13-01


events did not occur, just that she was not sure the events occurred. The victim

herself, contrary to Lehmkuhle’s position, did not recant her accusations or state

that the events did not occur. Although the letters were sufficient to cause the trial

court to have second thoughts, they, alone, were insufficient to require the court,

as a matter of law, to reconsider the plea sua sponte. Thus, the trial court was

correct in proceeding to sentencing. The second assignment of error is overruled.

       {¶6} The judgment of the Court of Common Pleas of Van Wert County is

affirmed.

                                                                 Judgment Affirmed

SHAW, J., concurs.

PRESTON, P.J., concurs in Judgment Only.

/jlr




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