[Cite as State v. Rush, 2013-Ohio-2728.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                     :   Hon. John W. Wise, J.
                                              :   Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
RANDALL D. RUSH                               :   Case No. CT12-0038
                                              :
                                              :
       Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Muskingum County
                                                  Court of Common Pleas, Case No.
                                                  CR2012-0038



JUDGMENT:                                         REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                           June 20, 2013




APPEARANCES:

For Defendant-Appellant:                          For Plaintiff-Appellee:

DAVID E. MORTIMER                                 D. MICHAEL HADDOX
HOWARD ZWELLING                                   MUSKINGUM CO. PROSECUTOR
MICHELI, BALDWIN, NORTHRUP LLP                    27 N. Fifth St., 2nd Floor
3803 James Court, Suite 2                         Zanesville, OH 43701
Zanesville, OH 43701
Delaney, J.


       {¶1} Appellant Randall D. Rush appeals from the judgment entry of conviction

and sentence entered in the Muskingum County Court of Common Pleas on June 21,

2012. Appellee is the state of Ohio and did not file a brief.

                              FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal.

       {¶3} Appellant was originally charged by indictment with six counts of gross

sexual imposition pursuant to R.C. 2907.05(A)(1), all felonies of the fourth degree; one

count of rape pursuant to R.C. 2907.02(A)(1)(c), a felony of the first degree; one count

of sexual battery pursuant to R.C. 2907.03(A)(2), a felony of the third degree; and one

count of child endangering pursuant to R.C. 2919.22(A), a misdemeanor of the first

degree. On May 18, 2012, appellee entered a nolle prosequi as to counts two through

nine and amended count one to attempted child endangering pursuant to R.C.

2923.02 and 2919.22(A), a felony of the fourth degree. Appellant entered a plea of no

contest to the amended charge of attempted child endangering.

       {¶4} The “Plea of No Contest” form signed by appellant, his counsel, and the

prosecutor states in pertinent part:

              * * *.

              The defendant acknowledges that the parties have engaged in

              plea negotiations and the defendant accepts and agrees to be

              bound by the following agreement, which is the product of such

              negotiations.
                Upon a plea of “no contest” to Count One as amended, the State

                agrees to make no recommendation and leave sentencing to the

                discretion of the Court. The State further agrees to Nolle Counts 2

                through 9 at the time of sentencing.

                The defendant further acknowledges that he/she understands that

                the prosecutor’s recommendation does not have to be followed by

                the Court.

                * * *.

         {¶5} The trial court ordered a pre-sentence investigation.1

         {¶6} Appellant appeared before the trial court for sentencing on June 18,

2012, and the trial court sentenced him to a prison term of 18 months.                  At the

sentencing hearing, the trial court stated the following:

                * * * *.

                THE COURT: And the state has made no recommendation when

                it comes to sentencing. I’ll also note for the record I have received

                the presentence investigation and I have reviewed it thoroughly.

                Included in the presentence investigation is a victim impact

                statement, as well as a specific letter from the victim concerning

                this matter, as well as letters from many others supporting the

                victim, as well as letters [defense counsel] has filed supporting

                you, Mr. Rush. All of that is included in the Court’s file.




1
    The pre-sentence investigation is not in the record.
             I understand, Mr. Rush, that you have taken no responsibility for

             any sexual misconduct by this plea, but I think it’s pretty clear that

             there’s alleged sexual misconduct. Agreed, [defense counsel]?

             [DEFENSE COUNSEL:] Yes, Your Honor.

             THE COURT: [Prosecutor?]

             [PROSECUTOR:] Yes, Your Honor.

             THE COURT:       That’s why we’re here.       That’s why this case

             started. That’s why the charges were initially filed were based

             upon sex charges (sic), and that the gross sexual imposition,

             Count 1, was amended to attempted child endangering, a felony of

             the fourth degree. Based upon that, Mr. Rush, your sentence on

             Count 1 will be 18 months in prison.

             * * * *.

      {¶7} Appellant now appeals from the judgment entry of his conviction and

sentence.

                              ASSIGNMENT OF ERROR

      {¶8} Appellant raises one Assignment of Error:

      {¶9}   “I. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT

TO A PRISON SENTENCE, SPECIFICALLY A MAXIMUM TERM, CONTRARY TO

THE SENTENCING STATUTES.”
                                        ANALYSIS

                                            I.


       {¶10} Appellant argues his maximum sentence for attempted child endangering

does not comply with R.C. 2929.13 and therefore he should have been sentenced to

community control or a lesser prison term instead of a maximum term of 18 months.

We agree.

       {¶11} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,

the Ohio Supreme Court set forth a two-step process for examining felony sentences.

The first step is to “examine the sentencing court's compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is clearly

and convincingly contrary to law.” Kalish at ¶ 4. If this first step “is satisfied,” the

second step requires the trial court's decision be “reviewed under an abuse-of-

discretion standard.” Id.

       {¶12} Appellant was sentenced on June 18, 2012. R.C. 2929.13(B), effective

September 30, 2011, states:

              (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if

              an offender is convicted of or pleads guilty to a felony of the fourth

              or fifth degree that is not an offense of violence or that is a

              qualifying assault offense, the court shall sentence the offender to

              a community control sanction of at least one year's duration if all

              of the following apply:

              (i) The offender previously has not been convicted of or pleaded

              guilty to a felony offense.
(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation

and correction pursuant to division (B)(1)(c) of this section, the

department, within the forty-five-day period specified in that

division, provided the court with the names of, contact information

for, and program details of one or more community control

sanctions of at least one year's duration that are available for

persons sentenced by the court.

(iv) The offender previously has not been convicted of or pleaded

guilty to a misdemeanor offense of violence that the offender

committed within two years prior to the offense for which sentence

is being imposed.

(b) The court has discretion to impose a prison term upon an

offender who is convicted of or pleads guilty to a felony of the

fourth or fifth degree that is not an offense of violence or that is a

qualifying assault offense if any of the following apply:

(i) The offender committed the offense while having a firearm on

or about the offender's person or under the offender's control.

(ii) If the offense is a qualifying assault offense, the offender

caused serious physical harm to another person while committing

the offense, and, if the offense is not a qualifying assault offense,
the offender caused physical harm to another person while

committing the offense.

(iii) The offender violated a term of the conditions of bond as set

by the court.

(iv) The court made a request of the department of rehabilitation

and correction pursuant to division (B)(1)(c) of this section, and

the department, within the forty-five-day period specified in that

division, did not provide the court with the name of, contact

information for, and program details of any community control

sanction of at least one year's duration that is available for

persons sentenced by the court.

(v) The offense is a sex offense that is a fourth or fifth degree

felony violation of any provision of Chapter 2907. of the Revised

Code.

(vi) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person with a deadly

weapon.

(vii) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person, and the

offender previously was convicted of an offense that caused

physical harm to a person.

(viii) The offender held a public office or position of trust, and the

offense related to that office or position; the offender's position
             obliged the offender to prevent the offense or to bring those

             committing it to justice; or the offender's professional reputation or

             position facilitated the offense or was likely to influence the future

             conduct of others.

             (ix) The offender committed the offense for hire or as part of an

             organized criminal activity.

             (x) The offender at the time of the offense was serving, or the

             offender previously had served, a prison term.

             (xi) The offender committed the offense while under a community

             control sanction, while on probation, or while released from

             custody on a bond or personal recognizance.

      {¶13} We have closely examined the record of this case.           The trial court’s

sentencing decision was due to the fact that the resulting attempted child endangering

conviction was reduced from gross sexual imposition, and it is true that a sentencing

court may consider charges that have been dismissed or reduced pursuant to a plea

agreement. State v. Parsons, supra, 2013–Ohio–1281, ¶ 18, citing State v. Starkey,

7th Dist. No. 06MA110, 2007–Ohio–6702, ¶ 2; State v. Cooey, 46 Ohio St.3d 20, 35,

544 N.E.2d 895 (1989). “The fact that the charges were dramatically reduced also is a

factor in support of the court's decision to impose the maximum sentence.” Id.

      {¶14} Nevertheless, we are constrained by the fact that the charge was

reduced to attempted child endangering, a violation of R.C. 2919.22(A) and R.C.

2923.02, which is not an offense of violence. We are also constrained by the record of

this case, which we have examined for factors pursuant to R.C. 2929.13(B)(1)(a) and
find the only sentence available to the trial court was community control. And again,

we note appellee did not file a brief in this case which might have given us the benefit

of an argument on behalf of the victim of this offense.            We note appellant

acknowledges the victim of the charged offenses, and the resulting reduced offense of

attempted child endangering, is appellant’s stepdaughter. Absent the pre-sentence

investigation, we are unable to find any basis for a sentence other than community

control based upon R.C. 2929.13(B).

      {¶15} We find that pursuant to R.C. 2929.13(B), in light of appellant’s

conviction upon one count of a non-violent felony of the fourth degree, the trial court

was required to sentence him to community control. See, State v. Henson, 5th Dist.

No. 11 CAA 11 0112, 2012-Ohio-2894. The 18-month sentence, therefore, is clearly

and convincingly contrary to law.
                                         CONCLUSION

       {¶16} Appellant’s sole assignment of error is sustained and the judgment of the

Muskingum County Court of Common Pleas is reversed. This matter is remanded to

the trial court for further proceedings consistent with this opinion.

By: Delaney, J.

Hoffman, P.J. and

Wise, J. concur.



                                         HON. PATRICIA A. DELANEY



                                         HON. WILLIAM B. HOFFMAN



                                         HON. JOHN W. WISE




PAD:kgb
            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff-Appellee                   :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   CT12-0038
RANDALL D. RUSH                         :
                                        :
   Defendant-Appellant                  :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

Muskingum County Court of Common Pleas is reversed and this matter is remanded

to the trial court for further proceedings consistent with this opinion. Costs assessed

to Appellee.




                                        HON. PATRICIA A. DELANEY



                                        HON. WILLIAM B. HOFFMAN



                                        HON. JOHN W. WISE
