State v. Fetterolf , 2018 Ohio 2454 ( 2018 )

[Cite as State v. Fetterolf, 2018-Ohio-2454.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-T-0109
- vs - :
MATTHEW T. FETTEROLF, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR
00131.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Michael A. Burnett and Ashleigh
Musick, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street,
N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Matthew T. Fetterolf, appeals from the October 26, 2017
judgment of the Trumbull County Court of Common Pleas, sentencing him to two years
in prison for burglary following a guilty plea. On appeal, appellant takes issue with his
sentence. Finding no reversible error, we affirm.
{¶2} On or about February 6, 2017, appellant entered a Newton Falls residence
by force and committed a theft offense while the victim was home.
{¶3} On March 29, 2017, appellant was indicted by the Trumbull County Grand
Jury on three counts: count one, aggravated burglary, a felony of the first degree, in
violation of R.C. 2911.11(A)(1) and (B); count two, assault, a misdemeanor of the first
degree, in violation of R.C. 2903.13(A) and (C)(1); and count three, disrupting public
services, a felony of the fourth degree, in violation of R.C. 2909.04(A)(1) and (C).
Appellant pleaded not guilty at his arraignment and, through counsel, waived his right to
a speedy trial.
{¶4} On August 31, 2017, appellant withdrew his not guilty plea and entered a
written plea of guilty to an amended count one, burglary, a felony of the second degree,
in violation of R.C. 2911.12(A)(1) and (C). The trial court accepted appellant’s guilty
plea, dismissed the remaining charges, and referred the matter to the Adult Probation
Department for a presentence investigation and report.1
{¶5} On October 26, 2017, the trial court sentenced appellant to two years in
prison. The court granted appellant credit for time served, February 7, 2017 to February
16, 2017 and October 19, 2017 to October 26, 2017. The court notified appellant that
post release control is mandatory for three years. Appellant filed a timely appeal and
raises the following assignment of error:
{¶6} “The trial court erred by sentencing appellant to a term of 24 months
incarceration as the record does not support such a sentence.”
{¶7} In his sole assignment of error, appellant argues the trial court erred by
imposing a two-year prison sentence instead of community control.
1. The PSI lists appellant’s criminal background which is four pages long.
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{¶8} “‘(T)his court utilizes R.C. 2953.08(G) as the standard of review in all
felony sentencing appeals.’ State v. Hettmansperger, 11th Dist. Ashtabula No. 2014-A-
0006, 2014-Ohio-4306, ¶14. R.C. 2953.08(G) provides, in pertinent part:
{¶9} “(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
{¶10} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
{¶11} “(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶12} “(b) That the sentence is otherwise contrary to law.”
{¶13} Appellant does not take issue with the statute. Although trial courts have
full discretion to impose any term of imprisonment within the statutory range, they must
consider the sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C.
2929.12.
{¶14} R.C. 2929.11(A) provides that the overriding purposes of felony
sentencing are (1) “to protect the public from future crime by the offender and others”;
and (2) “to punish the offender using the minimum sanctions that the court determines
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accomplish those purposes without imposing an unnecessary burden on state or local
government resources.” Further, the sentence imposed shall be “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).
{¶15} R.C. 2929.12 provides a nonexhaustive list of sentencing factors the trial
court must consider when determining the seriousness of the offense and the likelihood
that the offender will commit future offenses. The court that imposes a felony sentence
“has discretion to determine the most effective way to comply with the purposes and
principles of sentencing.” R.C. 2929.12(A). The factors a trial court may consider
include the “more serious” factors, such as “[t]he physical or mental injury suffered by
the victim of the offense due to the conduct of the offender was exacerbated because of
the physical or mental condition or age of the victim” and “[t]he victim of the offense
suffered serious physical, psychological, or economic harm as a result of the offense.”
R.C. 2929.12(B)(1) and (2). The court may also consider the “less serious” factors, any
recidivism factors, and any mitigating factors listed in R.C. 2929.12(C)-(F).
{¶16} At the sentencing hearing, the trial court considered the purposes and
principles of felony sentencing in arriving at a just sentence together with the
seriousness and recidivism factors and balanced those factors and considered all
relevant factors as well as the degree and type of felony; the court found the sentence
proportional to appellant’s conduct as well as consistent with similarly situated
offenders; the court took appellant’s statements into account; the court considered
defense counsel’s argument to impose community control instead of prison, including
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the fact that although appellant has had misdemeanor convictions, this was appellant’s
first felony conviction; the court considered appellant’s prior criminal history, as well as
the PSI, and the entire record. Regarding appellant’s criminal history, the court
specifically stated: “Well, it’s not like you have a pristine record and you have to worry
about one more criminal charge[.] If you didn’t have a criminal record, I could certainly
understand. Anybody is reluctant to have one. But you’ve got multiple[.]” (October 19,
2017 Sentencing T.p. p.15).
{¶17} Also, in its October 26, 2017 judgment, the trial court indicated it had
considered the record, oral statements, the PSI, and any victim impact statements,
based upon the purposes and principles of sentencing under R.C. 2929.11 and the
seriousness and recidivism sentencing factors under R.C. 2929.12 before imposing
sentence.
{¶18} Accordingly, the record reflects the trial court gave due deliberation to the
relevant statutory considerations. The court considered the purposes and principles of
felony sentencing under R.C. 2929.11, and balanced the seriousness and recidivism
factors under R.C. 2929.12, as evidenced from the record.
{¶19} Appellant was sentenced to the minimum sentence of 2 years on one
count of burglary, a felony of the second degree, following a guilty plea. Thus, the court
sentenced appellant within the statutory range under R.C. 2929.14(A) (“(2) For a felony
of the second degree, the prison term shall be two, three, four, five, six, seven, or eight
years.”) Second-degree felony convictions carry with them a presumption in favor of
prison. State v. Paulino, 8th Dist. Cuyahoga No. 104198, 2017-Ohio-15, ¶33.
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{¶20} R.C. 2929.13(D)(1) provides that for such a felony, “it is presumed that a
prison term is necessary in order to comply with the purposes and principles of
sentencing under [R.C. 2929.11].”
{¶21} R.C. 2929.13(D)(2) states: “Notwithstanding the presumption established
under division (D)(1) of this section for the offenses listed in that division other than a
violation of division (A)(4) or (B) of section 2907.05 of the Revised Code, the sentencing
court may impose a community control sanction or a combination of community control
sanctions instead of a prison term on an offender for a felony of the first or second
degree * * * for which a presumption in favor of a prison term is specified as being
applicable if it makes both of the following findings:
{¶22} “(a) A community control sanction or a combination of community control
sanctions would adequately punish the offender and protect the public from future
crime, because the applicable factors under section 2929.12 of the Revised Code
indicating a lesser likelihood of recidivism outweigh the applicable factors under that
section indicating a greater likelihood of recidivism.
{¶23} “(b) A community control sanction or a combination of community control
sanctions would not demean the seriousness of the offense, because one or more
factors under section 2929.12 of the Revised Code that indicate that the offender’s
conduct was less serious than conduct normally constituting the offense are applicable,
and they outweigh the applicable factors under that section that indicate that the
offender’s conduct was more serious than conduct normally constituting the offense.”
{¶24} The statute does not require courts to impose community control
sanctions. Instead, it gives courts an option to impose community control sanctions
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under certain circumstances. Even if the circumstances were met, the language of the
statute does not indicate that trial courts must impose community control sanctions in
lieu of prison time.
{¶25} In this case, the trial court noted the presumption of a prison term.
Contrary to appellant’s position, the court was not required to impose community control
and it did not err in failing to make findings when it imposed the minimum prison term.
See State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, ¶35-36; State v. Rady, 11th
Dist. Lake No. 2006-L-213, 2007-Ohio-1551, ¶52-54. Further, the record reveals the
court properly advised appellant regarding post release control. Therefore, the court
complied with all applicable rules and statutes and, as a result, appellant’s sentence is
not clearly and convincingly contrary to law.
{¶26} For the foregoing reasons, appellant’s sole assignment of error is not well-
taken. The judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.
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