[Cite as State v. Putzig, 2014-Ohio-2412.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
ROBERT T. PUTZIG, JR.                        :       Case No. 13-COA-034
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Ashland County
                                                     Court of Common Pleas, Case No.
                                                     13-CRI-050



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    June 3, 2014



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER R. TUNNELL                               TIMOTHY POTTS
Prosecuting Attorney                                 10 E. Second Street
                                                     Ashland, OH 44805

By: PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, OH 44805
Ashland County, Case No. 13-COA-034                                                      2

Baldwin, J.

     {¶1}     Appellant Robert T. Putzig, Jr. appeals a judgment of the Ashland County

Common Pleas Court sentencing him to an aggregate prison term of sixteen years for

four counts of sexual battery (R.C. 2907.03(A)(5)). Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

     {¶2}     In 2011, appellant was convicted of two counts of sexual battery in which

the victim was his stepdaughter. In November of 2012, Detective Dennis Evans of the

Ashland Police Department received a telephone call from the victim in the instant case,

who is the older sister of the victim in the 2011 case. She told the detective that

appellant had sexually molested her from the age of twelve to the age of fifteen.

Appellant was interviewed at the Madison Correctional Institution, where he confessed

to Detective Evans that he had performed oral sex on the victim on multiple occasions.

     {¶3}     Pursuant to a negotiated plea agreement, appellant was charged by Bill of

Information with four counts of sexual battery, all third degree felonies.      He was

sentenced to forty-eight months incarceration in each count, with all sentences to be

served consecutively to each other and consecutively to the sentence he was serving

from the 2011 case.

     {¶4}     Appellant assigns two errors on appeal:

     {¶5}     “I.   THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED       CONSECUTIVE        SENTENCES         UPON      DEFENDANT/APPELLANT

PURSUANT        TO    OHIO    REVISED      CODE     SECTION      2929.14(C)(4);      SAID

CONSECUTIVE          SENTENCES     EXCEEDED       THE    MAXIMUM       PRISON        TERM

PURSUANT TO OHIO REVISED CODE SECTION 2929.14(A)(3)(a), AND WERE NOT
Ashland County, Case No. 13-COA-034                                                         3


CONSISTENT WITH THE DIRECTIVES ESTABLISHED IN OHIO REVISED CODE

SECTION      2929.14(C)(4)     AND/OR      WERE       CLEARLY      AND     CONVINCINGLY

CONTRARY TO LAW.

      {¶6}    “II.   THE SENTENCES IMPOSED BY THE COURT OF COMMON

PLEAS OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON

STATE AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO

REVISED CODE SECTION 2929.13(A) [SIC].”

                                                 I.

      {¶7}    In his first assignment of error, appellant argues that the trial court erred in

making mere “boilerplate” findings with respect to consecutive sentencing without

correlating any of its findings to the facts of the case. He also argues that even if the

findings are sufficient to support the sentence, the sentence is contrary to law because

his offense was not excessively serious in nature and only one of the “more serious”

factors set forth in R.C. 2929.12(B) is relevant to this case.

      {¶8}    2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The General Assembly has thus expressed its intent to revive the

statutory fact-finding provisions pertaining to the imposition of consecutive sentences

that were effective pre- Foster. See State v. Wells, 8th Dist. Cuyahoga App.No. 98428,

2013–Ohio–1179, ¶ 11. These revisions to the felony sentencing statutes now require a

trial court to make specific findings when imposing consecutive sentences.

Nonetheless, “[a]lthough H.B. 86 requires the trial court to make findings before

imposing a consecutive sentence, it does not require the trial court to give its reasons
Ashland County, Case No. 13-COA-034                                                    4

for imposing the sentence.” State v. Bentley, 3rd Dist. Marion App.No. 9–12–31, 2013–

Ohio–852, ¶ 12, citing State v. Frasca, 11th Dist.Trumbull App.No.2011–T–01 08,

2012–Ohio–3746, ¶ 57. Likewise, “ * * * under H.B. 86, a trial court is not required to

articulate and justify its findings at the sentencing hearing when it imposes consecutive

sentences as it had to do under S.B. 2.” State v. Redd, 8th Dist. Cuyahoga App.No.

98064, 2012–Ohio–5417, ¶ 12. But the record must demonstrate that consecutive

sentences are appropriate and clearly supported. See State v. Ducker, 5th Dist. Stark

App.No.2012CA00192, 2013–Ohio–3657, ¶ 16.

      {¶9}    R.C. 2929.14(C)(4) states as follows:

      {¶10}   “If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public, and if the court also finds any of the following:

      {¶11}   “(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

      {¶12}   “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses
Ashland County, Case No. 13-COA-034                                                       5


committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

      {¶13}   “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

      {¶14}   At the sentencing hearing, the trial court noted that appellant had

committed the same crimes twice within one family, with girls in the age range of twelve

to sixteen. Tr. Sent. 11. The court stated that appellant took advantage of his position

and of issues he knew a victim had previously encountered in her life. Tr. Sent. 11-12.

The court found consecutive sentencing was necessary because of the history of

appellant’s criminal conduct and his repeated targeting of a certain type and age of

individual. Tr. 13. The court’s findings, coupled with the information set forth in the

presentence investigation report and filed under seal as a part of the record, were

sufficient to support consecutive sentences.

      {¶15}   Appellant also argues that the circumstances of the offense do not support

the court’s finding that this was a serious offense. The presentence investigation report

includes a letter from the victim setting forth in detail the significant impact the instant

crimes have had on her life. Appellant was the stepfather of this victim, as well as the

victim in the prior two convictions of sexual battery for which he was serving a prison

sentence when these offenses came to light. The offenses often occurred when the

mother of the girls, appellant’s wife, was at work and the girls were entrusted to

appellant’s care. The record supports the court’s findings that consecutive sentences

were not disproportionate to the seriousness of appellant’s conduct and that his history
Ashland County, Case No. 13-COA-034                                                        6


demonstrates that consecutive sentences are necessary to protect the public from

future crime.

      {¶16}     The first assignment of error is overruled.



                                                 II.

      {¶17}     In his second assignment of error, appellant argues that imposition of a

prison sentence in this case imposes an unnecessary burden on state or local

government resources.

      {¶18}     R.C. 2929.11(A) provides:

      {¶19}     “(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. 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.”

      {¶20}     As we noted in State v. Ferenbaugh, 5th Dist. Ashland No. 03COA038,

2004–Ohio–977 at paragraph 7, “[t]he very language of the cited statute grants trial

courts discretion to impose sentences. Nowhere within the statute is there any guideline

for what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. Ashland

No.2008–COA036, 2009–Ohio–3105, this Court reviewed a similar claim. We found
Ashland County, Case No. 13-COA-034                                                      7


that, although burdens on State resources may be a relevant sentencing criteria, state

law does not require trial courts to elevate resource conservation above seriousness

and recidivism factors. Shull, at paragraph 22, citing State v. Ober, 2nd Dist. No.

97CA0019, 1997 WL 624811 (October 10, 1997).

      {¶21}   Appellant   repeatedly   sexually   molested   the   teenage   victim,   his

stepdaughter, over a period of years. In addition, he has a prior conviction for similar

behavior concerning the victim’s younger sister. Appellant has not demonstrated that a

prison term in the instant case is an unnecessary burden on state and local resources.

      {¶22}   The second assignment of error is overruled.         The judgment of the

Ashland County Common Pleas Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Farmer, J. concur.
