[Cite as State v. Pippin,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1023

Appellee Trial Court No. CR0201702097

v.

William Jesse Pippin DECISION AND JUDGMENT

Appellant Decided: April 12, 2019

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Adam H. Houser, for appellant.

*****

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, William Pippin, appeals the judgment of the Lucas County Court

of Common Pleas, sentencing him to a maximum prison term following his guilty plea to

one count of domestic violence. Finding no error, we affirm. A. Facts and Procedural Background

{¶ 2} On May 16, 2017, appellant and his live-in girlfriend got into an argument at

their home in Holland, Ohio, that escalated to a physical confrontation with appellant, the

aggressor, and his girlfriend, the victim. The state charged appellant with one count of

domestic violence, in violation of R.C. 2919.25(A) and (D)(3), a felony of the fourth

degree. Appellant had a previous misdemeanor conviction for domestic violence, in

2007. Pursuant to a plea agreement, appellant entered a plea of guilty to the indictment in

exchange for the state’s agreement to remain silent at the time of sentencing.

{¶ 3} On January 16, 2018, the trial court held a sentencing hearing, and heard

statements in mitigation from appellant’s attorney, as well as a statement from the victim.

In her statement to the court, the victim referenced ongoing, abusive conduct by appellant

in general terms, spanning their entire relationship, with no mention of the specific

offense for which appellant was charged. In imposing its sentence, the trial court

indicated it considered appellant’s presentence investigation report, considered the

principles and purposes of sentencing under R.C. 2929.11, and balanced the serious and

recidivism factors under R.C. 2929.12.

{¶ 4} At sentencing, the trial court stated the following:

The Court finds the defendant has been convicted of domestic

violence, a misdemeanor – strike that – a felony of the fourth degree. The

Court also finds a number of factors. This Court has reviewed your record.

Mr. Pippin, you have a previous domestic violence charge that was

2. amended from a misdemeanor of the first degree to a misdemeanor of the

fourth degree. That was in September of 2007. You also have been

charged with assault in September of 2007, which was ultimately

dismissed. You were charged with assault in Sylvania Municipal Court in

November or 2016. Apparently that was dismissed. Apparently in May of

’17 there was a violation of a protection order, two counts of that, which

were ultimately dismissed. And then these cases were bound over and

presumably in front of me. Also, in May there was a contempt of court.

So you apparently don’t follow the terms and conditions that were

given to you in Sylvania Municipal Court resulting in a contempt of court

conviction of which you were sentenced on.

The Court would also find that there were a number of injuries that

were caused to the victim in this matter. The Court will note that the victim

suffered two black eyes, welts, and bruises all over her body as a result of

your actions. There was also a suggestion and indication that the victim

had been picked up and repeatedly slammed into a woodpile while you

were choking her.

Mr. Pippin, these are extremely, extremely serious events. You have

now been convicted of domestic violence. And therefore this Court finds

the defendant is not amenable to community control, and that prison is

consistent with the purposes of Revised Code 2929.11. The Court finds,

3. pursuant to Revised Code 2929.13(B)(1), that physical harm to a person

was caused. That having been said, this Court is going to order that the

defendant serve a term of 18 months in prison. That is the maximum

amount of time allowable in prison.

In its corresponding judgment entry, the trial court journalized its determination, stating:

The Court has considered the record, oral statements, any victim

impact statement and presentence report prepared, as well as the principles

and purposes of sentencing under R.C. 2929.11, and has balanced the

seriousness, recidivism and other relevant factors under R.C. 2929.12.

The Court finds on December 4, 2017, the defendant entered a plea

of Guilty, and was found guilty by the Court of DOMESTIC VIOLENCE, a

violation of R.C. 2919.25(A)&(D)(3), a FELONY of the FOURTH degree.

The Court further finds the defendant is not amenable to community

control and that prison is consistent with the purposes of R.C. 2929.11.

It is ORDERED that defendant serve a term of eighteen months in

prison. The Court finds pursuant to R.C. 2929.13(B)(1)(b) if the offense is a

qualifying assault offense, the defendant 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.

4. {¶ 5} Appellant now challenges the maximum sentence for his first felony

conviction, as well as the propriety of the trial court’s consideration of the victim’s

statement at sentencing in imposing that sentence.

B. Assignments of Error

{¶ 6} Appellant appeals his 18 month sentence, asserting the following

assignments of error:

I. The trial court erred when it sentenced appellant to a maximum

sentence.

II. The trial court considered improper facts during the victim

impact statement.

II. Analysis

{¶ 7} Appellant’s assignments of error challenge the trial court’s imposition of a

maximum sentence, arguing that sentence is unsupported in the record and based on

improper consideration of the victim’s statements regarding other, unrelated conduct.

Because each assignment of error requires review of the record considered by the trial

court at sentencing, we address them together.

{¶ 8} The review of felony sentences is governed under R.C. 2953.08(G)(2). A

sentence will not be modified or vacated unless appellant demonstrates, by clear and

convincing evidence, that the sentence is contrary to law or unsupported by relevant

findings in the record. State v. Torres, 6th Dist. Ottawa No. OT-18-008,

,

¶ 6; State v. Marcum,

,

,

, ¶ 1. “Clear

5. 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.” Marcum

at ¶ 22, quoting Cross v. Ledford,

,

(1954), paragraph

three of the syllabus. The standard requires proof of a negative, requiring demonstration

that “the record does not support the findings” of the trial court in order to merit reversal

or modification of a sentence. State v. Roberts, 8th Dist. Cuyahoga No. 104474, 2017-

Ohio-9014, ¶ 10.

{¶ 9} Pursuant to R.C. 2953.08(G)(2), an appellate court may increase, reduce,

modify, or vacate and remand a sentence only if the record demonstrates, clearly and

convincingly, either of the following:

(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; or

(b) That the sentence is otherwise contrary to law.

{¶ 10} State v. Jones, 6th Dist. Sandusky No. S-18-013,

,

citing State v. Behrendt, 6th Dist. Lucas No. L-15-1135,

; Marcum at

¶ 23. Furthermore, while R.C. 2953.08 does not reference other statutory factors, “it is

fully consistent for appellate courts to review those sentences that are imposed solely

6. after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is

equally deferential to the sentencing court.” Marcum at ¶ 23.

{¶ 11} In this case, the trial court referenced R.C. 2929.13(B)(1)(b) in imposing an

18 month prison term, finding appellant caused physical harm to the victim in committing

the offense. R.C. 2929.13(B)(1)(b) provides, in pertinent part:

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:

***

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.

{¶ 12} A community control sanction is only required 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.” R.C. 2929.13(B)(1)(a) (emphasis

added.) Here, appellant entered a guilty plea and was convicted of fourth degree

domestic violence, and “[d]omestic violence is categorized as an offense of violence.”

State v. Reid, 6th Dist. Lucas No. L-18-1001,

, citing R.C.

2901.01(A)(9)(a). Thus, the trial court was not limited to a community control sanction

7. at sentencing, and could consider any prison term within the statutory range. State v.

Neal, 6th Dist. Lucas No. L-16-1267,

, citing R.C. 2929.14(A)(4).

{¶ 13} The trial court also did not err in referencing appellant’s conduct related to

other convictions and dismissed charges in imposing sentence. See e.g. State v. Waxler,

6th Dist. Lucas No. L-11-1101,

, ¶ 12 (where court clearly states

consideration of record, oral statements, presentence report and statutory factors, no error

in referencing unadjudicated conduct, as such conduct not sole basis for imposing

sentence).

{¶ 14} Prior to imposing sentence, the trial court noted appellant’s September

2007 misdemeanor domestic assault conviction and dismissed assault charges in

September 2007 and November 2016. Additionally, the trial court noted that appellant

was charged with two counts of violating a protection order in May 2017, with charges

dismissed, and a contempt of court conviction arising from appellant’s failure to follow

terms and conditions imposed by Sylvania Municipal Court. The record does not

indicate, however, that these other incidents served as the sole basis for the sentence

imposed.

{¶ 15} The trial court recited consideration of the purposes and principles of

sentencing under R.C. 2929.11 as well as the seriousness and recidivism factors under

R.C. 2929.12, and noted that appellant caused the victim physical harm in committing the

offense of domestic violence, resulting in “two black eyes, welts, and bruises all over her

body” with an “indication that the victim had been picked up and repeatedly slammed

8. into a woodpile while [appellant choked] her.” In imposing sentence, the trial court noted

“these are extremely, extremely serious events.” Accordingly, while the trial court noted

that appellant had trouble complying with terms and conditions and referenced prior

conduct – both adjudicated and unadjudicated – it otherwise conducted a thorough

review, and unadjudicated allegations did not provide the sole basis for the maximum

sentence. See e.g. State v. Waxler, 6th Dist. Lucas No. L-11-1101,

, ¶

11-12 (although trial court noted other allegations at sentencing, these allegations were

merely in addition to the court’s consideration of the record, oral statements, and

statutory factors).

{¶ 16} As to the victim’s statements at the sentencing hearing, appellant’s trial

counsel made no objection at the hearing, thus waiving all but plain error on appeal. State

v. Allard,

,

(1996); State v. Vanculin, 2d Dist.

Miami No. 2011-CA-8,

. “To establish plain error, appellant must

be able to demonstrate that but for the victim impact statements, the trial judge would

clearly have sentenced appellant [to a lesser sentence].”

.

{¶ 17} Appellant demonstrates no such error in this case, despite arguing that he

had no way to prepare to address statements alleging other, unrelated conduct. Instead,

the record demonstrates that the trial court made no mention of the victim’s statement in

determining appellant’s sentence. In addition to weighing the statutory factors, the trial

court focused on the seriousness of the appellant’s conduct, the injury that resulted from

this conduct, and appellant’s criminal record. “Where the court imposes a sentence

9. within the maximum statutory limit, a reviewing court will presume the trial court

followed the standards in determining sentence, absent evidence to the contrary.” State v.

Kerekgyarto, 6th Dist. Lucas No. L-12-1115,

, ¶ 9, citing State v. Kalish,

,

,

; see also State v. Rose, 5th Dist.

Holmes No. 18CA005,

(post-Foster, courts are no longer required

to explain the basis for a maximum sentence).

{¶ 18} Appellant failed to demonstrate any lack of support for the trial court’s

findings, and failed to demonstrate that the inclusion of the victim’s statements caused

the trial court to impose a more severe sentence than it would have otherwise ordered.

Accordingly, appellant’s assignments of error are each found not well-taken.

III. Conclusion

{¶ 19} The judgment of the Lucas County Court of Common Pleas is affirmed.

Pursuant to App.R. 24(A)(2), appellant is assessed the cost of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

10. State v. Pippin C.A. No. L-18-1023

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

11.