State v. Ditto , 2010 Ohio 1503 ( 2010 )

[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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Case No. 12-09-08
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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