[Cite as State v. Thacker, 2016-Ohio-5732.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2015-CA-75
                                                    :
 v.                                                 :   Trial Court Case No. 2015-CR-75
                                                    :
 DAVID M. THACKER                                   :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                          Rendered on the 9th day of September, 2016.

                                               ...........

STEPHANIE R. HAYDEN, Atty. Reg. No. 0082881, Assistant Greene County Prosecuting
Attorney, 61 Greene Street, First Floor, Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

JEFFREY R. MCQUISTON, Atty. Reg. No. 0027605, 130 West Second Street, Suite
1818, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                              .............




WELBAUM, J.
                                                                                           -2-




       {¶ 1} In this case, Defendant-Appellant, David Thacker, appeals from a judgment

sentencing him to 30 months in prison for Attempted Felonious Assault and 12 months

each in prison on two charges of Domestic Violence, with all terms to run concurrently,

for a total of 30 months in prison. In support of his appeal, Thacker contends that the

trial court failed to properly consider the statutory aggravating and mitigating factors in

R.C. 2929.12, and that the record does not clearly and convincingly support the trial

court’s decision.

       {¶ 2} We conclude that the trial court properly complied with the pertinent statutory

factors governing sentencing, and we cannot find that the record clearly and convincingly

fails to support the trial court’s decision. Accordingly, the judgment of the trial court will

be affirmed.



                              I. Facts and Course of Proceedings

       {¶ 3} The charges against David Thacker arose from an attack that David made

on family members on January 25, 2015. At that time, Thacker attempted to attack his

father, D.T., with a knife. Other family members, T.T. and B.T., became involved in an

attempt to subdue Thacker. On January 27, 2015, the Fairborn Municipal Court issued

temporary protection orders for D.T., T.T., and B.T. Subsequently, Thacker was indicted

on one count of Felonious Assault, a second-degree felony, and two counts of Domestic

Violence, both fourth-degree felonies based on Thacker’s prior conviction for Domestic

Violence in Fairborn Municipal Court.

       {¶ 4} On March 6, 2015, Thacker’s appointed counsel filed a plea of not guilty by
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reason of insanity and motion for a competency evaluation. Counsel then filed a motion

for a second competency evaluation, after the first evaluator found Thacker was not within

the definition of “mental retardation” in the Ohio Revised Code and that he was competent

to stand trial. Attached to the motion were documents indicating that Thacker was within

the “mild range of mental retardation” with a full scale IQ score of 63. However, Thacker

demonstrated more significant attention and short-term memory deficits, and was not able

to obtain competitive employment.

       {¶ 5} A second mental evaluation was ordered, and Thacker was again found

competent. On August 5, 2015, Thacker entered a guilty plea to Attempted Felonious

Assault, a third-degree felony, and two fourth-degree felony Domestic Violence charges.

As part of the plea agreement, the State recommended community control. At the plea

hearing, Thacker was informed that the maximum punishment for the charges was 72

months in prison, zero of which was mandatory, and a $20,000 fine. The court then set

a sentencing hearing in October 2015, and referred Thacker for a presentence

investigation (“PSI”).

       {¶ 6} On October 21, 2015, the parties appeared for the sentencing hearing. At

that time, Thacker presented several witnesses, including a custodian of records from the

jail; Thacker’s mother, Y.T.; Bobbie Fussichen, a psychiatric nurse practitioner from TCN

Behavioral Services, who had treated Thacker before he was jailed and also treated

Thacker while he was jailed pending resolution of the current charges; and Mark

Moorman, a counselor employed by TCN Behavioral Services and stationed at the jail.

Thacker also testified at the hearing.

       {¶ 7} Y.T. indicated that Thacker had developmental and mental health disabilities.
                                                                                             -4-


He had been diagnosed as developmentally disabled in Kindergarten and currently

functioned cognitively at about a third-grade level. He had suffered from depression

since he entered puberty, and had paranoia and bipolar issues in additional to the

developmental problems. Thacker had also exhibited delusional behavior. When he

was medicated, he was easier to live with, but when he did not take his medication, he

was a different person.

         {¶ 8} Y.T. stated that on the day of the incident, Thacker came into the family’s

house with a knife and tried to attack his father. There was a physical altercation. D.T.

was able to get a candlestick from the fireplace, and threw it at Thacker to divert his

attention. While wrestling with Thacker, D.T. was able to get the knife away from him.

An older son then restrained Thacker until the police arrived. Despite this incident, Y.T.

stated that Thacker did not belong in prison.

         {¶ 9} Fussichen had treated Thacker for several years. She indicated that he had

multiple diagnoses, including a Schizoaffective Disorder; a “Bipolar type”; moderate

alcohol use disorder; moderate Cannabis use disorder; post-traumatic stress disorder;

and attention deficit hyperactive disorder.        Thacker was on several medications,

including Abilify, Tegretol, Trazadone, and Wellbutrin SR.          Fussichen indicated that

Thacker had never been aggressive towards her.            She also said that no lock-down

mental facilities were available, because such facilities do not exist.          According to

Fussichen, Thacker was not an imminent danger to himself or others, and was very

vulnerable in a jail facility with the close proximity of others and the personalities that were

there.

         {¶ 10} Moorman had consulted with Thacker approximately 43 times while
                                                                                            -5-


Thacker was in jail. He indicated that Thacker had never been aggressive with him, and

he described Thacker’s mental health problems as “severe.” Transcript of Proceedings,

p. 51.     Moorman stated that Thacker had been placed on suicide watch and had

threatened suicide many times. He further stated that Thacker had been involved in

disputes with other inmates. Thacker could get quite delusional at times, and believed

people were plotting against him. His low intellectual functioning caused him to misread

others and think other people were about to attack him. Moorman indicated that Thacker

had been injured a number of times from these fights.

         {¶ 11} According to Moorman, Thacker would not function well in the general

prison population. Moorman expressed concern over Thacker going into a predatory

environment in a prison population. He stated that TCN could offer various services if

Thacker were placed on probation, including removing him from Fairborn, away from

family members and bad friends and having him observed taking his medication.

Moorman indicated that Thacker’s failure to take medication and use of illicit drugs were

the precipitating events in the criminal violations.

         {¶ 12} Thacker identified a picture of himself in jail, with a black eye that resulted

from a fight. He also identified another picture of himself with bruises from a fight. An

employee from the Greene County Jail indicated that Thacker had been involved in fights

at the jail, but had not threatened any staff or correction officers. This employee also

indicated that in most of the incidents, Thacker was the individual who had been harmed.

         {¶ 13} After hearing the testimony, the trial court continued the sentencing hearing

to consider the evidence. On November 11, 2015, at the continued hearing, the court

heard testimony from two family members who had been involved in the altercation.
                                                                                      -6-


Both said they did not think that Thacker should go to prison. The prosecutor did not

examine any witnesses at the sentencing hearing, and said that the State recommended

community control.

      {¶ 14} The trial court then sentenced Thacker to 30 months on the Attempted

Felonious Assault and 12 months on each Domestic Violence charge, and imposed the

sentences concurrently, for a total of 30 months in prison. The court also added a

notation to the sentencing entry, recommending that the warden attempt to admit Thacker

into OASIS or a similar program at the earliest practical time. Thacker now appeals from

his conviction and sentence.



                                  II. Imposition of Sentence

      {¶ 15} Thacker’s sole assignment of error states that:

             The Trial Court Erred in Imposing a 30 Month Jail Sentence on the

      Defendant and Abused Its Discretion in Failing to Comply with the Pertinent

      Statutory Provisions Governing the Exercise of Discretion in Sentencing.

      {¶ 16} Under this assignment of error, Thacker agrees that his assignment of error

uses an incorrect standard of review, i.e., abuse of discretion. Thacker then argues,

under the correct standard, that the record does not clearly and convincingly support the

trial court’s decision to impose a 30-month prison sentence, since there is a presumption

of community control for fourth-degree felonies and no presumption for or against prison

sentences for third-degree felonies. Thacker also argues that various factors in R.C.

2929.12 indicate that a prison sentence should not have been imposed.

      {¶ 17} The Supreme Court of Ohio has held that we may not apply an abuse of
                                                                                         -7-


discretion standard when reviewing sentences. Instead, “an appellate court may vacate

or modify a felony sentence on appeal only if it determines by clear and convincing

evidence that the record does not support the trial court's findings under relevant statutes

or that the sentence is otherwise contrary to law.” State v. Marcum, Ohio Sup. Ct. Slip

Opinion No. 2016-Ohio-1002, ¶ 1, citing R.C. 2305.08(G)(2).

       {¶ 18} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus. Accord Marcum at ¶ 22.

       {¶ 19} “ ‘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. Armstrong,

2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12, quoting State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). Before imposing sentence, however, trial

courts are required to “consider the statutes that apply to every felony case. Those

include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12,

which provides guidance in considering factors relating to the seriousness of the offense

and recidivism of the offender.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846

N.E.2d 1, ¶ 38.

       {¶ 20} R.C. 2929.11(A) provides that “[t]he overriding purposes of felony

sentencing are to protect the public from future crime by the offender and others and to
                                                                                              -8-


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.”   “The statutory ‘seriousness’ and ‘recidivism’ factors that guide a court's

sentencing discretion are found in R.C. 2929.12.” State v. Dixon, 2d Dist. Clark No.

2015-CA-67, 2016-Ohio-2882, ¶ 5.

       {¶ 21} Under R.C. 2929.12, courts are to consider “the factors set forth in divisions

(B) and (C) of this section relating to the seriousness of the conduct, the factors provided

in divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism,

and the factors set forth in division (F) of this section pertaining to the offender's service

in the armed forces of the United States and, in addition, may consider any other factors

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

       {¶ 22} Thacker contends that of the nine mentioned factors in R.C. 2929.12(B),

only one factor indicates that his conduct was more serious than conduct normally

constituting his offenses. This factor is R.C. 2929.12(B)(6), which relates to the fact that

“[t]he offender's relationship with the victim facilitated the offense.” Thacker also notes

that R.C. 2929.12(C)(3) indicates that his conduct was less serious than conduct normally

constituting the offenses. This factor pertains to the fact that “[i]n committing the offense,

the offender did not cause or expect to cause physical harm to any person or property.”

       {¶ 23} Thacker also focuses on R.C. 2929.12(C)(4), which provides that the court

should consider, in deciding if an offender’s conduct was less serious, that “[t]here are
                                                                                        -9-


substantial grounds to mitigate the offender's conduct, although the grounds are not

enough to constitute a defense.”

      {¶ 24} Thacker is correct in pointing out that the State recommended community

control, and that the evidence at the sentencing hearing indicates that he suffered from

various mental health and developmental disabilities and would not fare well in prison.

The trial court was well aware of these facts, but commented that its primary purpose was

to protect the public. In this regard, the PSI Report indicated that Thacker “has extremely

violent tendencies.   His criminal history demonstrates the defendant is violent and

ultimately a probation officer safety problem.” PSI Report, p. 8. The report also noted

that Thacker had stated that his alcohol use was a factor in his violent behavior.

However, Thacker had been noncompliant while incarcerated and “had been involved in

6 physical altercations at Greene County Jail despite taking his medication as directed.”

Id.

      {¶ 25} Thacker also had substance abuse problems, and had first become

intoxicated in Kindergarten. He had been hospitalized twice for alcohol detoxification

and admitted he often got in trouble while intoxicated. He had last consumed alcohol on

the night of the offenses. Id. at p. 11. The PSI Report further noted that Thacker was

not a candidate for the Greene Leaf Program because he could not be housed at the

Adult Detention Center. Id. Finally, the probation department concluded that Thacker

was not amenable to available community control sanctions.             Again, the report

emphasized Thacker’s extremely violent tendencies, the criminal history indicating his

violence and a probation officer safety issue, his involvement in altercations at the jail,

and the fact that he was not a candidate for the Green Leaf Program.
                                                                                       -10-


       {¶ 26} Unfortunately – as was noted in the sentencing hearing – no long-term

mental health facilities exist. Thus, the trial court’s only alternatives were to sentence

Thacker to prison or to release him into the community, where there was no real

guarantee that Thacker would continue to take his medication.             Although TCN

employees testified that they could observe Thacker take his medication daily, TCN was

not a residential facility, and nothing prevented Thacker from simply deciding not to show

up to take his medication. Once Thacker went off his medication, the danger to his family

and the community would return.       Notably, this was not the first situation in which

Thacker attempted to harm someone.

       {¶ 27} Furthermore, we disagree that R.C. 2929.12(C)(3) applies. In attacking his

father with a knife, Thacker clearly expected to cause physical harm. In fact, the PSI

report indicates that Thacker punched his father during the altercation, and also hit

another victim, T.T., in the face.

       {¶ 28} In a similar situation, we observed that “[a]s best we can discern from the

record, the trial court faced a no-win choice between treatment without assured safety for

the community and safety for the community without assured treatment.”           State v.

Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 37.

       {¶ 29} Regarding recidivism factors, Thacker argues that while he had prior

misdemeanor convictions, none substantiate that he harmed the victims. We disagree.

The reason that Thacker’s two Domestic Violence charges were elevated to fourth-degree

felonies is because of his prior conviction for Domestic Violence in Fairborn Municipal

Court Case No. CRB 1400226, in violation of R.C. 2919.25(A). See Doc. #1, Indictment,

Counts Two and Three, and R.C. 2919.25(D)(3).
                                                                                          -11-


       {¶ 30} R.C. 2919.25(A) provides that “[n]o person shall knowingly cause or attempt

to cause physical harm to a family or household member.” Regarding criminal pleas,

Crim.R. 11(B) provides that “[w]ith reference to the offense or offenses to which the plea

is entered: (1) [t]he plea of guilty is a complete admission of the defendant's guilt.”

       {¶ 31} Accordingly, by pleading guilty to Counts Two and Three of the indictment,

Thacker admitted that he was guilty of causing or attempting to cause harm to a family or

household member on January 25, 2015, and that he had previously been convicted of

causing or attempting to cause harm to a family or household member in the 2014 criminal

case. While this technically may not mean that Thacker actually harmed his prior victim,

it does mean, at the least, that he attempted to harm his prior victim.

       {¶ 32} As a further matter, the PSI Report indicates that that Thacker had been

convicted of Domestic Violence in 2014. PSI Report at p. 4. In addition, Thacker had

prior convictions for resisting arrest and disorderly conduct in 2010; for criminal mischief

in 2011; and for disorderly conduct by intoxication in 2013. Id. at p. 3. He received

community control sanctions for all these violations, but reoffended by committing more

severe crimes.

       {¶ 33} Thacker also argues that he showed genuine remorse for his actions, which

indicates that he is less likely to reoffend pursuant to R.C. 2929.12(E)(5). Thacker did

tell the trial court that he was remorseful. However, this factor is not controlling, but is

simply one point to be considered. Again, the trial court was cognizant of the safety of

the public, including Thacker’s family, and made the best decision it could in difficult

circumstances. In view of our constrained power of review, we cannot find that the

record clearly and convincingly fails to support the court’s decision.
                                                                                    -12-


       {¶ 34} Based on the preceding discussion, Thacker’s sole assignment of error is

overruled.



                                       III. Conclusion

       {¶ 35} Thacker’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.




                                   .............



DONOVAN, P.J. and FAIN, J., concur.



Copies mailed to:

Stephanie R. Hayden
Jeffrey R. McQuiston
Hon. Michael A. Buckwalter
