[Cite as State v. Ditto, 2010-Ohio-1503.]




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



STATE OF OHIO,                                             CASE NO. 12-09-08

   PLAINTIFF-APPELLEE,

  v.

KALOB DITTO,                                                     OPINION

   DEFENDANT-APPELLANT.



                  Appeal from Putnam County Common Pleas Court
                             Trial Court No. 09-CR-27

                                       Judgment Affirmed

                               Date of Decision: April 5, 2010




APPEARANCES:

        Matthew A. Cunningham for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-09-08



WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Kaleb Ditto (“Ditto”) brings this appeal from

the judgment of the Court of Common Pleas of Putnam County finding him guilty

of failing to stop after an accident and sentencing him to one year in prison. For

the reasons set forth below, the judgment is affirmed.

       {¶2} On March 28, 2009, the victim left a party on foot. Ditto, who had

been drinking, decided to go find the victim on his four-wheeler. While operating

the four-wheeler, Ditto struck the victim and severely injured her.        He then

panicked and returned to the party. He did not tell anyone about the accident and

eventually went home. The victim was subsequently found lying injured on the

side of the road. An ambulance was called and the victim was taken to the

hospital for treatment.   She suffered a broken jaw, her second vertebra was

fractured, and she was suffering from hypothermia. She has additionally suffered

from psychological problems and economic harm as a result of the accident.

       {¶3} On May 1, 2009, Ditto was indicted on one count of failing to stop

after an accident in violation of R.C. 4549.02, a fifth degree felony. Pursuant to a

plea agreement, Ditto entered a plea of no contest on August 4, 2009.             A

sentencing hearing was held on Sept 2, 2009. At the hearing, Ditto was sentenced

to twelve months in prison. Ditto appeals from this judgment and raises the

following assignment of error.



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               The trial court erred in sentencing Ditto to the maximum
                                    sentence.

         {¶4} Ditto argues that the trial court erred by not considering the factors

set forth in R.C. 2929.12. Ditto claims that these factors, considered along with

the presumption against prison for a fifth degree felony committed by a first time

offender, would not support the maximum sentence. The basis for Ditto’s claim

is whether the trial court considered the factors set forth in R.C. 2929.12, not how

the factors were applied. When reviewing whether the factors were considered,

the standard of review is clear and convincing evidence as set forth in R.C.

2953.08(G).1 State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124.

         R.C. 2953.08(G) is also applicable to R.C. 2929.12 only insofar
         as reviewing whether the trial courts bothered to consider the
         factors of divisions (B) through (D). If they did consider the
         factors of divisions (B) through (D), then their consideration of
         these factors is reviewed under an abuse of discretion standard,
         since they are specifically indicated by R.C. 2929.12 to be
         discretionary.

Id. at ¶42 (concurring opinion). Although the trial court is required to consider

the factors set forth in R.C. 2929.12, the trial court is not required to either discuss

the factors on the record or even to state that the factors were considered on the


1
    A distinction is noted between an appeal based, as here, upon whether the trial court considered the
factors of R.C. 2929.12 and appeal based upon how the trial court, having considered the factors of R.C.
2929.12, applied those factors. In the former, the standard of review on appeal is whether the appellate
court clearly and convincingly finds that the sentence is contrary to law, i.e. that the trial court failed to
consider the factors of R.C. 2929.12, as set forth in R.C. 2953.08(G)(2)(b). In the latter, the standard of
review on appeal is an abuse of discretion standard, discretion being explicitly granted to the trial court in
R.C. 2929.12.


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Case No. 12-09-08


record as long as the record is sufficient for a court to determine that the

consideration occurred. State v. Scott, 3d Dist. No. 6-07-17, 2008-Ohio-86.

       {¶5} A review of the record in this case indicates that the trial court did

not specifically indicate that it had considered the statutory factors set forth in

R.C. 2929.12. The judgment entry indicated that the court “considered the record,

oral statements, any victim impact statements, and the pre-sentence investigation

report prepared, as well as the principles and purposes of sentencing under [R.C.

2929.19].” Sept. 3, 2009, Entry, 1. Although the trial court did not specifically

address the factors of R.C. 2929.12, the applicable factors were raised through the

oral statements made during the hearing and the pre-sentence investigation. The

trial court considered the serious physical, psychological and economic harm

suffered by the victim, the fact that the offender was under the influence of

alcohol at the time of the offense, the remorse shown by the offender, the

relationship of the parties, and the seriousness of the offender’s actions. Thus, the

record is sufficient to indicate that the trial court gave consideration to the

applicable statutory factors set forth in R.C. 2929.12.

       {¶6} Ditto was charged with a fifth degree felony. The range of prison

sentences for this degree of offense is six to twelve months. A trial court has

discretion to impose any sentence within the statutory range. State v. Mathis, 109

Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. Since the sentence imposed is

within the range permitted by law, the trial court did not abuse its discretion by


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imposing a sentence of twelve months in prison.2 Ditto has failed to clearly and

convincingly demonstrate to this court that the sentence is contrary to law or that

the trial court failed to consider the factors set forth in R.C. 2929.12. Thus, the

assignment of error is overruled.

        {¶7} Having found no error prejudicial to Ditto, the judgment of the

Court of Common Pleas of Putnam County is affirmed.

                                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jnc




2
   This court notes that in addition to not being an abuse of discretion, the sentence is not clearly and
convincingly shown to be contrary to law. Thus, under either standard of review, the sentence is not
improper.


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