[Cite as State v. O'Neil, 2014-Ohio-1359.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2013-L-068
        - vs -                                    :

PATRICK S. O’NEIL,                                :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR
000692.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Patrick S. O’Neil, appeals from the judgment of the Lake

County Court of Common Pleas sentencing him to a 36-month term of imprisonment

after his plea of guilty to felony-three attempted felonious assault. We affirm.

        {¶2}     Appellant was indicted on one count of felonious assault, in violation of

R.C. 2903.11(A)(1), a felony of the second degree, after he repeatedly struck another
man in the head with his fists while in a Willoughby bar. Appellant later entered a plea

of guilty to attempted felonious assault, a felony of the third degree, in violation o R.C.

2923.02(A) and R.C. 2903.11(A)(1).         The trial court sentenced appellant to the

maximum prison sentence 36 months and ordered him to pay $9,440.20 in restitution.

Appellant appeals and assigns the following error:

       {¶3}   “The trial court erred by sentencing the defendant-appellant to a maximum

thirty-six month prison sentence.”

       {¶4}   “[A]ppellate courts must apply a two-step approach when reviewing felony

sentences. First, they must 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. If this first prong is satisfied, the

trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-

of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.

       {¶5}   The overriding purposes of felony sentencing in Ohio “are to protect the

public from future crime by the offender * * * and to punish the offender.” R.C.

2929.11(A). “A sentence imposed for a felony shall be reasonably calculated to achieve

the two overriding purposes of felony sentencing set forth in division (A) of this section,

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.” R.C. 2929.11(B).

       {¶6}   It is well-recognized that a sentencing court “has discretion to determine

the most effective way to comply with the purposes and principles of sentencing.” R.C.

2929.12(A). And the Ohio Supreme Court has observed a sentencing court has “full




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discretion to impose a prison sentence within the statutory range.” State v. Mathis, 109

Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus; State v. Ries, 11th Dist.

Portage No. 2008-P-0064, 2009-Ohio-1316, ¶13 (“[s]uch discretion is plenary”).

Moreover, “the trial court is not obligated, in the exercise of its discretion, to give any

particular weight or consideration to any sentencing factor.” State v. Holin, 174 Ohio

App.3d 1, 2007-Ohio-6255, ¶34, (11th Dist.).

      {¶7}   Appellant does not argue his sentence was contrary to law; rather, he

contends the trial court abused its discretion when it ordered the maximum sentence

because it failed to give careful and substantial deliberation to the relevant statutory

sentencing factors.   First, appellant argues his statements in allocution provided a

strong foundation for a lesser sentence. In particular, appellant underscores that he

beat the victim because he felt threatened for his life.        He maintains the victim

threatened to cut his throat with a knife and, as a result, his assault was an act of self-

defense. Appellant asserts the trial court failed to properly weigh his statements in

mitigation and therefore erred in imposing the maximum sentence. We do not agree.

      {¶8}   Appellant, during his allocution, claimed he assaulted the victim based

upon a purported threat the victim cast at him. Because the statement occurred during

allocution, the statement was offered merely to mitigate the severity of his actions in the

eyes of the court. A video of the assault was played, which depicted the fight, during

which appellant struck the victim 12 times in six seconds. Several minutes after the

fight, the bartender retrieved an object, which appellant asserted was a closed,

apparent lock-blade knife from the bar’s floor. Defense counsel asserted the recovery

of the knife supported appellant’s explanation.




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       {¶9}   Given appellant’s rendition of events and defense counsel’s argument,

the court asked appellant if he wished to withdraw his plea and try the matter to a jury.

A recess was taken to discuss the possibility of appellant withdrawing the plea.

Appellant ultimately determined he did not wish to withdraw his plea.          The court

subsequently observed that it was not a fact finder for purposes of trying the merits of

the alleged defense. Given this point, the court noted the knife was folded and had not

been obviously brandished in the video.          Hence, the court determined appellant’s

statement regarding self-defense did not weigh heavily in mitigation.

       {¶10} It is clear the court critically considered and gave substantial deliberation

to appellant’s assertion that his actions were prompted by what he perceived as a

threat. Simply because appellant advanced an explanation of events that, if true, might

absolve him of legal blame does not imply the court was required to accept the rendition

appellant offered. This is especially true where the video evidence failed to overtly

indicate threatening behavior on the part of the victim.

       {¶11} A sentencing court may determine the weight afforded to relevant

mitigation evidence. See e.g. State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580,

¶65. In this case, it is clear the court considered appellant’s explanation and assessed

its persuasiveness against the video evidence. Given the circumstances, however, the

court found appellant’s explanation did not militate in favor of a lesser sentence. We

discern no abuse of discretion in the manner the court handled this issue.

       {¶12} Appellant further argues the trial court failed to give due consideration to

his mental health issues.      The record reveals that, at one point, appellant was

diagnosed with post-traumatic stress disorder (“PTSD”) in 1991.           This diagnosis




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followed appellant’s conviction for negligent homicide in the death of his younger

brother.1 Appellant further asserts the court simply dismissed evidence of appellant’s

apparent drug and alcohol addictions. In appellant’s view, these points were factors

that influenced his behavior on the night of the incident and, viewed as a whole,

weighed in favor of a lesser sentence. We do not agree.

       {¶13} The record demonstrates that, in addition to a purported PTSD diagnosis,

appellant had an axis 2 diagnosis of anti-social personality disorder. The court also

heard evidence relating to appellant’s lengthy criminal record, which included a theft

conviction, a vandalism conviction, two disorderly conduct convictions, a criminal

trespass conviction, a complicity to breaking and entering conviction, and seven

contempt-of-court convictions. The record also revealed appellant had committed a

vast array of traffic offenses, which included three OVIs and 13 citations for driving

without an operator’s license.

       {¶14} Moreover, while appellant was on bond for the underlying offense, he was

charged with disorderly conduct for apparently acting belligerently at a bar.        Appellant

also failed to report for his pre-sentence investigation interview. He eventually reported

to the probation department without an appointment at which time he brought fake urine

in order to pass his drug test. When appellant’s actual urine was analyzed, the results

revealed a positive test form marijuana and cocaine.

       {¶15} In light of the foregoing, the trial court determined the maximum three-year

term of imprisonment was appropriate. In drawing this conclusion, the court observed:




1. The record indicates appellant dropped a loaded firearm which discharged killing his younger
brother.


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{¶16} I’ve reasonably calculated this sentence to achieve the two

     overriding purposes of felony sentencing and to be commensurate

     with and not demeaning to the seriousness of this offender’s

     conduct and its impact on society and the victim, and to be

     consistent with sentences imposed for similar crimes committed by

     similar offenders.   In using my discretion to determine the most

     effective way to comply with the purposes and principles of

     sentencing, I have considered all relevant factors including the

     seriousness and recidivism factors set forth in 2929.12 of the

     Revised Code. In addition to what’s been mentioned, the Court

     notes that the pre-sentence report to the extent completed, at least

     in, from the May 2nd, 2007 report shows an LSI score of 34, which

     is intensive supervision. I don’t have one for the current situation

     because the Defendant did not cooperate with the probation

     department.   Also note that the psychological shows an axis 2

     diagnosis of anti-social personality disorder, and also a poor

     prognosis. The court believes that a prison sentence is needed to

     protect the public from future crime by this offender. The Court

     believes that a minimum sentence would demean the seriousness

     of this offender’s conduct.   In fact, the Court believes that the

     Defendant poses the greatest likelihood of recidivism. And since

     we’re talking about an attempt felonious assault, the offender




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             committed the worst form of this offense, landing 12 repeated blows

             in 6 seconds.

      {¶17} In light of the foregoing, it is clear the court gave substantial and careful

deliberation to the relevant statutory factors when it imposed appellant’s sentence. We

therefore conclude that, notwithstanding appellant’s PTSD and his issues with

addictions, appellant’s significant criminal record, the aggressive and violent nature of

the underlying crime, and appellant’s anti-social-personality-disorder diagnosis,

together, provide more than a sound basis for the trial court’s judgment. Thus, the trial

court did not abuse its discretion when it imposed the maximum sentence.

      {¶18} Appellant’s assignment of error lacks merit.

      {¶19} For the reasons stated in this opinion, the judgment of the Lake County

Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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