[Cite as State v. Rousculp, 2014-Ohio-4715.]




           IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :       C.A. CASE NO.        2013 CA 58

v.                                                       :       T.C. NO.     13CR195

PHILLIP P. ROUSCULP                                      :        (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                              :

                                                         :

                                               ..........

                                               OPINION

                         Rendered on the          24th       day of         October       , 2014.

                                               ..........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
        Attorney for Plaintiff-Appellee

MARIA L. RABOLD, Atty. Reg. No. 0089080, 443 E. Central Avenue, Miamisburg, Ohio
45342
      Attorney for Defendant-Appellant

                                               ..........

FROELICH, P.J.

        {¶ 1}     Phillip P. Rousculp pled guilty to aggravated arson, in violation of R.C.
                                                                                                                                    2

2909.02(A)(2), a second-degree felony. In exchange for the plea, the State dismissed a

charge of aggravated arson, in violation of R.C. 2909.02(A)(1), a first-degree felony, and a

complicity to tampering with evidence charge. The trial court sentenced him to six years in

prison and ordered him to pay a fine of $1,000, restitution in the amount of $516, and court

costs. Rousculp was notified that he would be subject to lifetime registration as an arson

offender.

         {¶ 2}         Rousculp appeals from his conviction, challenging the trial court’s sentence

and claiming that his attorney rendered ineffective assistance. For the following reasons,

the trial court’s judgment will be affirmed.

                                   I. Erroneous and Unreasonable Sentence

         {¶ 3}         Rousculp’s first assignment of error states: “The trial court erred and

abused its discretion by imposing an unreasonable and disproportionately harsh sentence.”

         {¶ 4}         In State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.), we held

that we would no longer use an abuse-of-discretion standard in reviewing a felony sentence,

but would apply the standard of review set forth in R.C. 2953.08(G)(2).1 Under this statute,

an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence

and remand for resentencing, only if it “clearly and convincingly” finds either (1) that the

record does not support certain specified findings or (2) that the sentence imposed is



             1
                   Since then, several opinions from this court have expressed reservations about whether that decision in Rodeffer is
   correct. See, e.g., State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538, ¶ 9, fn.1; State v. Dover, 2d Dist. Clark No.
   2013-CA-58, 2014-Ohio-2303, ¶ 23; State v. Johnson, 2d Dist. Clark No. 2013-CA-85, 2014-Ohio-2308, ¶ 9, fn.1; State v. Byrd,
   2d Dist. Montgomery No. 25842, 2014-Ohio-2553, ¶ 44; State v. Collins, 2d Dist. Montgomery No. 25874, 2014-Ohio-2443, ¶
   21, fn. 1.
                                                                                              3

contrary to law. Rodeffer stated that “[a]lthough [State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124] no longer provides the framework for reviewing felony

sentences, it does provide * * * adequate guidance for determining whether a sentence is

clearly and convincingly contrary to law. * * * According to Kalish, a sentence is not

contrary to law when the trial court imposes a sentence within the statutory range, after

expressly stating that it had considered the purposes and principles of sentencing set forth in

R.C. 2929.11, as well as the factors in R.C. 2929.12.” (Citations omitted) Rodeffer at ¶ 32.

       {¶ 5}     “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. King,

2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a

trial court must consider the statutory policies that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500,

2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54,

2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

       {¶ 6}     R.C. 2929.11 requires trial courts to be guided by the overriding principles

of felony sentencing. Those purposes 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.” R.C. 2929.11(A). The court must “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
                                                                                              4

both.” Id. R.C. 2929.11(B) further provides that “[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.”

       {¶ 7}     R.C. 2929.12(B) sets forth nine factors indicating an offender’s conduct is

more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth four

factors indicating that an offender’s conduct is less serious. R.C. 2929.12(D) and (E) each

lists five factors that trial courts are to consider regarding the offender’s likelihood of

committing future crimes.      Finally, R.C. 2929.12(F) requires the sentencing court to

consider the offender’s military service record and “whether the offender has an emotional,

mental, or physical condition that is traceable to the offender’s service in the armed forces of

the United States and that was a contributing factor in the offender’s commission of the

offense or offenses.”

       {¶ 8}    At sentencing, the trial court heard statements from defense counsel, the

defendant, one of the complainants, and the prosecutor. According to the prosecutor, during

the night of May 11-12, 2013, while intoxicated, Rousculp got into a fight with the

complainants about harassment a family member was experiencing at work. Rousculp was

arrested and taken to jail.      After he was released on bail, Rousculp went to the

complainants’ home and set their shed on fire; the shed was located between 6 and 18 inches

from the trailer in which the complainants lived. The heat from the fire melted the side of

the trailer and smoke entered the trailer. The prosecutor stated that, “but for the grace of
                                                                                               5

God, I’m not sitting here telling you about five dead bodies that were found in a trailer on

May 12th, 2013, dying from smoke inhalation or from the fire itself.”                 The State

recommended a prison sentence, noting that Rousculp had committed the offense while on

community control, that he had a history of criminal convictions, that he had not responded

favorably to community control imposed by other courts, and that Rousculp had not shown

genuine remorse for his conduct.         The State argued that the victims had suffered

psychological and economic harm, that a prison sentence was necessary to punish Rousculp

and to protect the public, and that a non-prison sentence would demean the seriousness of

the offense.

         {¶ 9}   One of the complainants gave a brief statement, telling the court that there

were actually six people in the residence at the time of the fire and that the fire was located

within four feet of the propane tank outside her children’s bedroom. She also emphasized

that the offense occurred after Rousculp “bonded out” and that this was a premeditated

crime.

         {¶ 10} Speaking on Rousculp’s behalf, defense counsel stated that Rousculp was

cooperative with the presentence investigator and that Rousculp has shown and feels genuine

remorse. Counsel stated that Rousculp now understands that he has issues with anger and

alcohol, which affected his judgment in this matter. Counsel also stated Rousculp believed

the fire was out when he left the property, but the fact that he started the fire “weighs heavily

on him.” Counsel told the court that Rousculp anticipated a prison sentence, but requested

that the court consider a minimum sentence. Upon questioning from the court, counsel

confirmed that Rousculp was on community control in Clark County at the time of the
                                                                                            6

offense.

       {¶ 11} Rousculp read a prepared statement to the court. He expressed his remorse

and apologized for his actions.

       {¶ 12} The trial court questioned Rousculp about the events on May 12, 2013.

Rousculp acknowledged that he had gotten into a fight with one of the residents at the home

and that he was charged and ultimately convicted of assault arising out of that altercation.

Defense counsel and the prosecutor indicated that the assault occurred at approximately

10:30 p.m. on May 11, that Rousculp was arrested at approximately midnight, that he was

released at 3:50 a.m. on May 12, and that the fire department was dispatched at 5:53 a.m.

The court asked Rousculp if he had been convicted six times for OVI; Rousculp responded

that it was four times. The court discussed with Rousculp the fact that he had called his

wife and asked her to wash the clothes he was wearing when he started the fire.

       {¶ 13} In imposing sentence, the trial court expressly stated that it had considered

the purposes and principles of felony sentencing, and it noted the presumption of a prison

sentence for a second-degree felony. It found that a community control sanction would not

adequately punish Rousculp and protect the public, and the court made specific findings

under R.C. 2929.12 regarding the seriousness of the offense and Rousculp’s likelihood of

recidivism. The court noted that Rousculp had no military service.       The court sentenced

Rousculp to six years in prison, which was within the sentencing range for a felony of the

second degree. R.C. 2929.14(A)(2).

       {¶ 14} Rousculp asserts that the trial court abused its discretion when it imposed a

six-year sentence. He states that his prior record consisted of four (not six) convictions for
                                                                                              7

operating a vehicle while under the influence of drugs or alcohol and that the trial court

failed to consider necessary factors regarding recidivism and seriousness of the offense.

       {¶ 15} First, Rousculp argues that the trial court failed to consider the altercation

between Rousculp and the complainants as a factor that would lessen the seriousness of the

offense. Rousculp argues that the prior altercation constituted provocation for his actions

and should be considered a mitigating factor. Rousculp also cites to his counsel’s statement

that Rousculp thought the fire was out.

       {¶ 16} The trial court expressly found that there were no factors that indicated that

Rousculp’s conduct was less serious than normally constituting the offense.                 R.C.

2929.12(C).    The trial court did consider the altercation between Rousculp and the

complainants that occurred several hours before the arson, but the court considered the

altercation and Rousculp’s decision to set the fire upon his release from jail to be evidence

of premeditation, not mitigation. We find no error in the trial court’s interpretation of the

events. Nor was the trial court required to believe that Rousculp believed the fire was out

when he left the scene.

       {¶ 17} Moreover, we find no fault with the trial court’s conclusion that there were

several factors that indicated that Rousculp’s conduct was more serious than that normally

constituting the offense. The court reasonably found that the complainants suffered serious

psychological and economic harm. In addition, the trial court considered, as “additional

non-listed sentencing factors,” that Rousculp’s conduct was premeditated, that the shed was

close to the trailer, and that he caused damage to the trailer, which was occupied.

       {¶ 18} Second, Rousculp argues that the trial court erred in failing to find any
                                                                                              8

factors establishing that he was less likely to commit future crimes. Rousculp states that the

trial court should have considered that he had not been charged with any crimes for four

years and that he was remorseful.

         {¶ 19} The factors indicating that an offender is not likely to commit future crimes

include that the offender shows genuine remorse for the offense and that, prior to

committing the offense, the offender had led a law-abiding life for a significant number of

years.    R.C. 2929.12(E)(3) and (5).      Rousculp expressed remorse for his conduct at

sentencing, but the trial court found that his post-offense conduct reflected otherwise.

Specifically, the trial court found that, when the offense occurred, Rousculp had attempted to

cover up the crime by asking his wife to wash his clothes before fire investigators got to their

house. In addition, there was evidence that Rousculp had multiple prior convictions for

OVI, assault, and other misdemeanor offenses, and that he had assaulted a police officer (a

fourth-degree felony) in 2009, for which he was on community control in May 2013.

         {¶ 20} The trial court found, and the record supports, that the factors indicating that

Rousculp was likely to commit future offenses outweighed any factors to the contrary. As

stated above, the trial court reasonably determined that Rousculp did not show genuine

remorse for the offense, and he was on community control for assaulting a police officer at

the time of the offense. See R.C. 2929.12(D)(1) and (5). In addition to the 2009 felony

assault, Rousculp had six 2 prior OVI convictions, two prior convictions for disorderly

conduct, two prior misdemeanor assault convictions, as well as misdemeanor convictions for

“hit/skip”, menacing, domestic violence, and telecommunication harassment. Thus, there


            2
                See ¶ 27, infra.
                                                                                           9

was evidence that Rousculp had a history of criminal convictions. R.C. 2929.12(D)(2).

Rousculp reported during the presentence investigation that he had received alcohol

treatment at West Central in 2008 and attends AA meetings, but he acknowledged at the

sentencing hearing that he was drunk both when he assaulted the police officer and when he

committed the aggravated arson at issue. The record supports a conclusion that Rousculp

has a pattern of alcohol abuse related to the offense, but has refused to acknowledge that he

has demonstrated that pattern. R.C. 2929.12(D)(4).

       {¶ 21} The trial court did not perfunctorily address the statutory mandates, but

evidenced a consideration of them. The trial court’s sentence of six years was not clearly

and convincingly contrary to law, nor was it an abuse of discretion. The first assignment of

error is overruled.

                            II. Ineffective Assistance of Counsel

       {¶ 22}     Rousculp’s second assignment of error states: “The appellant was provided

ineffective assistance of counsel.”

       {¶ 23}     To reverse a conviction based on ineffective assistance of counsel, an

appellant must demonstrate both that trial counsel’s conduct fell below an objective standard

of reasonableness and that the errors were serious enough to create a reasonable probability

that, but for the errors, the result of the trial would have been different. Strickland v.

Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption

that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466

U.S. at 688.
[Cite as State v. Rousculp, 2014-Ohio-4715.]
        {¶ 24} Rousculp claims that his trial counsel acted deficiently by failing to review

the PSI with Rousculp prior to sentencing so that the number of OVI convictions reported in

the presentence investigation could be corrected. Rousculp states that he was prejudiced by

the inconsistency between the number of OVI convictions reported and the actual number of

convictions because the trial court relied on these past convictions in imposing sentence.

        {¶ 25} Upon review of the record, we find no basis to conclude that Rousculp was

prejudiced by his counsel’s alleged failure to review the PSI with Rousculp prior to

sentencing. During the sentencing hearing, the trial court asked Rousculp about his OVI

convictions, as follows:

        Q: You’ve been previously convicted of six OVI offenses?

        A: Six? No, no. It would be four.

        Q: I have one in April of ‘97 in Clark County. One in October of ‘97 in

        Champaign County. One in March of ‘98 in Clark County. One in May of

        ‘98 in Champaign County. And one in January of ‘02 in Clark County.

        And then one in February of ‘08 in Champaign County.

        A: No. My fourth one I was convicted, the last one was in Champaign

        County.

        Q: Was that a felony conviction?

        A: No. They said next time would be – in there would be.

        Q: Whether it’s four or six, you and alcohol aren’t a good mix are they?

        A: No, sir.

        Q: Were you under the influence when you assaulted the police officer in

        ‘09?
                                                                                            11

       A: Yes, sir.

The record thus reflects that Rousculp had an opportunity to discuss his prior criminal record

with the court, and that the trial court was aware that Rousculp disputed that he had six, as

opposed to four, prior OVI convictions.

       {¶ 26} The court did not reference the specific number of OVI convictions when

imposing sentence.    Rather, the trial court emphasized that Rousculp had a history of

criminal convictions, that he had not responded favorably to community control sanctions

previously imposed, and that he had “demonstrated a pattern of alcohol abuse that is related

to the offense and refused to acknowledge that or refuses treatment.” The court noted that

Rousculp was on community control for a past offense of violence when he committed the

aggravated arson, and that his conduct demonstrated that he was “seeking revenge and a

cover-up.” The court further stated that the arson “was alcohol related after the Defendant

had been on community control for * * * past alcohol related offenses [which] makes the

Court conclude that these are more serious conduct.”

       {¶ 27} We find no basis from the record to conclude that the discrepancy between

the number of OVI convictions had any bearing on the trial court’s sentence; in fact, the trial

court specifically commented that “whether it’s four or six” made no difference.

Accordingly, Rousculp has not demonstrated that he was prejudiced by his trial court’s

failure to review the PSI with him prior to sentencing.

       {¶ 28} Rousculp’s second assignment of error is overruled

                                       III. Conclusion

       {¶ 29} The trial court’s judgment will be affirmed.
                                                                                           12

                                        ..........

WELBAUM, J., concurs.



DONOVAN, J., concurring:

       {¶ 30} Although I agree that Rousculp’s sentence is not clearly and convincingly

contrary to law, nor is it an abuse of discretion, I write separately only to emphasize that

neither four nor six convictions for OMVI are documented in the PSI report. The PSI

reflects six arrests for OMVI (not six convictions as the majority states at paragraph 20).

Only one OMVI indicates a disposition, however, the dispositional record thereof does not

indicate if the OMVI was reduced. The remaining five OMVI(s) list no dispositional

history, hence I would not conclude that there are 6 OMVI convictions.

       {¶ 31} Nevertheless, Rousculp admitted to four OMVI convictions, thus I see no

error given the court’s statement “ four or six, you and alcohol aren’t a good mix. . .” In my

view, the important lesson of this case is absent Rousculp’s admission to four OMVI(s), the

case would be remanded for resentencing to allow a full development of Rousculp’s OMVI

history. A criminal defendant is entitled to a PSI which includes dispositions, not just

arrests.3 The trial court should require no less in order to accurately assess recidivism and

the appropriate sentence.

                                        ..........

Copies mailed to:

          3
             The arrests were local and in a neighboring county, hence dispositions
   should be readily available, unlike some out-of-state records which may prove
   difficult to obtain expeditiously.
                         13

Jane A. Napier
Maria L. Rabold
Hon. Nick A. Selvaggio
