State v. Walsh , 2022 Ohio 3883 ( 2022 )

[Cite as State v. Walsh, 2022-Ohio-3883.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ANDREW WALSH, : Case No. 21CA000016
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court
of Common Pleas, Case No. 20 CR
07-0179
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 31, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTINE WILLIAMS DONALD GALLICK
Assistant County Prosecutor The Law Office of Donald Gallick, LLC
Knox County, Ohio 190 North Union Street #102
117 East High Street Akron, Ohio 44304
Mount Vernon, Ohio 42050
DON HICKS
159 South Main Street #423
Akron, Ohio 44308
Knox County, Case No. 21CA000016 2
Baldwin, J.
{¶1} Appellant, Andrew Walsh, appeals his April 30, 2021 sentence from the Court of
Common Pleas of Knox County, Ohio. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On July 27, 2020, the Knox County Grand Jury indicted Walsh on two counts of
rape in violation of R.C. 2907.02 and one count of gross sexual imposition in violation of R.C.
2907.05. The charges arose from an incident between Walsh, a middle school teacher, and one
of his students. On March 25, 2021, Walsh pled guilty to an amended charge of sexual battery in
violation of R.C. 2907.03. A sentencing hearing was held on April 29, 2021. By sentencing entry
filed April 30, 2021, the trial court sentenced Walsh to sixty months in prison and classified him
as a Tier III sex offender.
{¶3} On May 27, 2021, Walsh filed a notice of appeal and on October 28, 2021, his
appellate counsel filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). By judgment entry filed February 28, 2022, this court
struck the Anders brief and denied counsel's motion to withdraw. On April 18, 2022, Walsh filed
his merit brief.
{¶4} This matter is now before this court for consideration. Assignments of error are as
follows:
{¶5} "I. THE TRIAL COURT DID NOT CONSIDER ALL REQUIRED FACTORS IN ORC
2929.12(C) AND 2929.12(D) BEFORE IMPOSING THE MAXIMUM SENTENCE."
{¶6} "II. THE TRIAL COURT IMPOSED A MAXIMUM SENTENCE IN VIOLATION OF
OHIO LAW."
{¶7} "III. THE TRIAL COURT FAILED TO CONSIDER WHETHER APPELLANT'S
SENTENCE SHOULD HAVE BEEN MITIGATED DUE TO THE MANDATORY FACTORS
Knox County, Case No. 21CA000016 3
FOUND IN OHIO REVISED CODE § 2929.12(E) AND BY FAILING TO CONSIDER A LOW
RECIDIVISM SCORE."
ANALYSIS
{¶8} In his three assignments of error, Walsh claims the trial court erred in sentencing
him to the maximum sentence without considering the factors listed in R.C. 2929.12(C), (D), and
(E). We will consider the assignments simultaneously.
{¶9} Pursuant to R.C. 2953.08(A)(1), Walsh is entitled to appeal as of right the
maximum sentence imposed on his conviction. Under R.C. 2953.08(G)(2), we may either
increase, reduce, modify, or vacate a sentence and remand for resentencing if we clearly and
convincingly find that either the record does not support the sentencing court's findings under
R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise
contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231; State v.
Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049.
{¶10} "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.
{¶11} As noted by this court in State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-
Ohio-8996, ¶ 16:
A trial court's imposition of a maximum prison term for a felony conviction
is not contrary to law as long as the sentence is within the statutory range for the
offense, and the court considers both the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors
Knox County, Case No. 21CA000016 4
set forth [in] R.C. 2929.12. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and
103414, 2016-Ohio-5234, ¶ 10, 16.
{¶12} R.C. 2929.11 governs overriding purposes of felony sentencing and states the trial
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."
{¶13} R.C. 2929.12 governs factors to consider in felony sentencing. Subsection (A)
states the trial court "shall consider the factors set forth in divisions (B) and (C) of this section
relating to the seriousness of the conduct, [and] the factors provided in divisions (D) and (E) of
this section relating to the likelihood of the offender's recidivism."
{¶14} In State v. Webb, 5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 17
we found that:
Although a trial court must consider the factors in R.C. 2929.11 and
2929.12, there is no requirement that the court state its reasons for imposing a
maximum sentence, or for imposing a particular sentence within the statutory
range. There is no requirement in R.C. 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and
recidivism or even discussed them. (Citations omitted.)
{¶15} "Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh
the evidence in the record and substitute its judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11 and 2929.12." State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.
{¶16} Walsh pled guilty to sexual battery in the third degree. A felony of the third degree
involving a violation of R.C. 2907.03 is punishable by "a definite term of twelve, eighteen, twenty-
four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months." R.C. 2929.14(A)(3)(a). The
Knox County, Case No. 21CA000016 5
trial court sentenced Walsh to the maximum, sixty months in prison, so the sentence is not
contrary to law.
{¶17} Walsh argues the trial court "mentioned all of the factors in 2929.12 that
recommended a harsh sentence. (Sentencing transcript 27-36). However, the trial court did not
mention any of the factors * * * that required a lesser sentence, a sentence lower than a maximum
sentence" and that the trial court "considered zero of the five factors listed in" R.C. 2929.12(E)."
{¶18} Walsh’s argument is frustrated by the decisions that make clear the trial court’s
obligation to consider the factors listed in R.C. 2929.12, but do not impose any fact-finding
requirement or explanation. We have found that:
While trial courts are required to consider both R.C. 2929.11 and 2929.12
before imposing a prison sentence, they are not required to make specific findings
under any of those considerations. State v. Wilson, 129 Ohio St.3d 214, 2011-
Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88 Ohio St.3d 208, 724 N.E.2d
793 (2000). “Indeed, consideration of the factors is presumed unless the defendant
affirmatively shows otherwise.” State v. Phillips, 8th Dist. Cuyahoga No. 110148,
2021-Ohio-2772, ¶ 8, citing State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16
(8th Dist.).
State v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-Ohio-3125, ¶ 18.
{¶19} The trial court completed a thorough analysis of the statutory sentencing factors
beginning on page 27, line 19 of the sentencing transcript and continuing through page 30, line
22. The trial court concluded by stating:
So the court has considered the purposes and principles contained in
Revised Code Section 2929.11. And I've considered the seriousness factors in the
Ohio Revised Code Section 2929.12 which I just reviewed with you. And the court
has fully considered the recidivism factors of Revised Code Section 2929.12. I do
Knox County, Case No. 21CA000016 6
find that a prison term is consistent with the purposes of Revised Code Section
2929.11. And that the defendant is not amenable to a community control sanction.
Sentencing Transcript, p. 30, line 23 to p. 31, line 9.
{¶20} The trial court confirmed that it considered the factors listed under R.C. 2929.12(D)
and (E), the “recidivism factors”, but did not recite each factor individually. We find that the lack
of an express review of each of the mitigating factors is not required by the Revised Code. Further,
Walsh has not provided an affirmative showing that the trial court did not consider those factors.
Crawford, supra.{¶21} Upon review of the entire record and counsel’s arguments, we do not find clear
and convincing evidence that the record does not support the trial court's findings or that the
sentence is contrary to law. R.C. 2953.08(G)(2). The sentence is within the statutory range for a
felony of the third degree, and the trial court considered the R.C. 2929.11 and 2929.12 factors.
{¶22} Assignments of Error I, II, and III are denied.
{¶23} The judgment of the Court of Common Pleas of Knox County, Ohio, is hereby
affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.