[Cite as State v. Schwytzer, 2021-Ohio-83.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT

MIAMI COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DUSTIN A. SCHWYTZER 

Defendant-Appellant 

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Appellate Case No. 2019-CA-20 

Trial Court Case No. 2019-CR-476 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 15th day of January, 2021. 

. . . . . . . . . . . 

JANNA L. PARKER, Atty. Reg. No. 0075261, Miami County Prosecutor’s Office, Safety 

Building, 201 West Main Street, Troy, Ohio 45373 

 Attorney for Plaintiff-Appellee 

 

BENJAMIN ELLIS, Atty. Reg. No. 0092449, 805-H Patterson Road, Dayton, Ohio 45419 

 Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

TUCKER, P.J. 
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{¶ 1} Defendant-appellant, Dustin A. Schwytzer, appeals from his convictions on 

one count of unlawful sexual conduct with a minor, a fourth degree felony pursuant to 

R.C. 2907.04(A) and (B)(1), and one count of sexual battery, a third degree felony 

pursuant to R.C. 2907.03(A)(1) and (B). Raising one assignment of error, Schwytzer 

argues that the trial court erred in sentencing him for the offense of sexual battery, 

because the court incorrectly indicated that a term of imprisonment was presumptively 

necessary. Although no such presumption applies to the offense, we hold that the trial 

court’s error was harmless, and therefore, Schwytzer’s convictions are affirmed. 

I. Facts and Procedural History

{¶ 2} On September 24, 2019, a high school counselor contacted the West Milton 

Police Division to report that a female student wanted to obtain a protection order against 

Schwytzer. The student disclosed that in October 2018, when she was 15 years old, 

Schwytzer, who was then 27 years old, had engaged in sexual conduct with her on 

several occasions. Schwytzer persisted in contacting the student by telephone and 

appearing outside her home long after she had ended the relationship, which prompted 

her to seek assistance. Another female student, who was 16 years old, reported that 

Schwytzer had recently forced himself on her in the back seat of a car; Schwytzer was 28 

years old at that time. 

{¶ 3} On October 3, 2019, Schwytzer appeared before the Miami County Municipal 

Court, where he waived his right to a preliminary hearing and agreed to plead guilty to 

one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A) and one 

count of sexual battery in violation of R.C. 2907.03(A)(1). In exchange, the State agreed 
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to refrain from prosecuting Schwytzer on a proposed count of rape. The parties did not 

agree to a recommended sentence. 

{¶ 4} Schwytzer appeared before the Miami County Court of Common Pleas on 

October 29, 2019. He waived his right to prosecution by indictment, consented to 

prosecution by information, and entered pleas of guilty to the charges of unlawful sexual 

conduct with a minor in violation of R.C. 2907.04(A) and sexual battery in violation of R.C. 

2907.03(A)(1). The case was referred for a presentence investigation, and the court 

scheduled a sentencing hearing for December 2, 2019. 

{¶ 5} At the sentencing hearing, the trial court sentenced Schwytzer to serve 

concurrent terms in prison of 16 months on the charge of unlawful sexual conduct with a 

minor and 60 months on the charge of sexual battery. While discussing the latter 

offense, the court remarked that “[b]ecause [Schwytzer] [was] convicted of sexual 

battery[,] * * * a felony of the third degree[,] * * * there is a presumption for prison.” 

Transcript of Sentencing Hearing 11:13-11:15, Dec. 2, 2019 [hereinafter Sentencing 

Transcript]. The court filed an entry memorializing the sentences on December 4, 2019, 

and Schwytzer timely filed a notice of appeal to this court on December 9, 2019. 

II. Analysis 

{¶ 6} For his single assignment of error, Schwytzer contends that: 

 THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE IN 

SENTENCING HIM UNDER A PRESUMPTION OF PRISON[.] 

{¶ 7} Schwytzer argues that the trial court erred by sentencing him to serve 60 

months in prison for the offense of sexual battery, because the court stated incorrectly 

that a term of imprisonment was presumptively necessary. Appellant’s Brief 7. In 
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Schwytzer’s view, the court thus “began its consideration of the proper punishment from 

the wrong place,” which had “the same practical effect [as] judicial bias.” Id. at 10. The 

State concedes that no presumption applied. Appellee’s Brief 3. 

{¶ 8} A “trial court has full discretion to impose any sentence within the authorized 

statutory range, and [it] is not required to make any findings or give its reasons for 

imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 

992 N.E.2d 491, ¶ 45 (2d Dist.), citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 

845 N.E.2d 470, paragraph seven of the syllabus. On review of a felony sentence, an 

appellate court may vacate or modify the sentence “only if it determines by clear and 

convincing evidence” that the record of the case does not warrant the sentence, pursuant 

to the relevant statutes, or that the sentence is otherwise contrary to law. See State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.2d 1231, ¶ 1; see also R.C. 

2953.08(G)(2). A sentence “is not contrary to law [if it falls] within the statutory range 

[and the trial court] expressly state[s] that it * * * considered the purposes and principles 

of sentencing [under] R.C. 2929.11 [and] 2929.12.” (Citation omitted.) State v. 

Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32 (2d Dist.). 

{¶ 9} Under R.C. 2929.11(A), a “court that sentences an offender for a felony shall 

be guided” by the “overriding purposes” of punishing the offender and “protect[ing] the 

public from future crime by the offender and others,” while “using the minimum sanctions 

that [it] determines [likely to] accomplish [these] purposes without imposing an 

unnecessary burden on state or local government resources.” Accordingly, the “court 

shall consider the need for incapacitating the offender, deterring the offender and others 

from future crime, rehabilitating the offender, and making restitution.” Id. R.C. 
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2929.11(B) adds that a felony sentence “shall be reasonably calculated to achieve the 

two overriding purposes of felony sentencing * * *, commensurate with and not demeaning 

to the seriousness of the offender’s conduct and its impact upon [any] victim[s], and 

consistent with sentences imposed for similar crimes committed by similar offenders.” 

{¶ 10} Pursuant to R.C. 2929.12(A), in “exercising [its] discretion” to determine “the 

most effective way to comply with the purposes and principles of sentencing set forth in 

[R.C.] 2929.11,” a court must consider, among other things, a list of nine factors 

“indicating that [an] offender’s conduct [was] more serious than conduct normally 

constituting” the offense for which the offender was convicted; a list of four factors 

“indicating that the offender’s conduct [was] less serious than conduct normally 

constituting the offense”; a list of five factors “indicating that the offender is likely to commit 

future crimes”; and a list of five factors “indicating that the offender is not likely to commit 

future crimes.” See also R.C. 2929.12(B)-(E). The court “may [further] consider any 

other factors that are relevant to achieving [the] purposes and principles of [felony] 

sentencing.” R.C. 2929.12(A). 

{¶ 11} Schwytzer challenges his sentence for sexual battery. By default, sexual 

battery is a third-degree felony, but if the victim is less than 13 years old, “sexual battery 

is a felony of the second degree,” entailing “a mandatory prison term equal to one of the 

definite prison terms prescribed in [R.C.] 2929.14[(A)(2)(b)].” Id.; see also R.C. 

2929.13(F)(3)(c) (similarly requiring imposition of a term in prison for the offense of sexual 

battery in cases in which the victim is under 13). The victim in the instant case, however, 

was more than 13 years old at the relevant time, meaning that a prison term was not 

mandatory pursuant to R.C. 2907.03(B). Moreover, a prison term was not “presumed [to 
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be] necessary” under R.C. 2929.13(D)(1), which includes no provisions relating to cases 

of sexual battery involving victims over the age of 13. The trial court therefore erred by 

stating that a presumption in favor of a prison term applied to the charge of sexual battery. 

{¶ 12} Even so, “[a]ny error, defect, irregularity, or variance [in a criminal matter] 

which does not affect [the defendant’s] substantial rights shall be disregarded” as a 

“harmless error.” See Crim.R. 52(A); State v. Harris, 142 Ohio St.3d 211, 2015-Ohio166, 28 N.E.3d 1256, ¶ 36. Under the “harmless-error standard of review, ‘the 

government bears the burden of demonstrating that [a purportedly harmless] error did not 

affect the substantial rights of the defendant.’ ” (Emphasis omitted.) Harris at ¶ 36, 

quoting State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. 

Generally, for an error to be deemed to have affected the defendant’s substantial rights, 

the defendant must have suffered prejudice as a result of the error. Id.

{¶ 13} The trial court sentenced Schwytzer to a term in prison of 60 months on the 

charge of sexual battery. During the sentencing hearing, the court offered the following 

explanation to Schwytzer: 

 The court has considered the presentence investigation report[,] 

[along with] [t]he statement that you’ve made and [the statement made by] 

your counsel, as well as the [arguments offered by] the [S]tate[,] and [the] 

victim impact statement[s] from [the victim of the sexual battery offense and] 

her [mother,] [her] grandmother[,] and [her] brother. The court must 

consider the three principles of sentencing, [which are] to protect the public 

from future crime; to punish [offenders] for the offense[s] [they have] 

committed; and [to] promote effective rehabilitation. The court must 
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[further] consider whether you’re likely to [commit additional crimes in the 

future,] and that is based upon your history of delinquency as a juvenile. 

Part of it may be your pattern [of] treating yourself with marijuana[.] I’m not 

quite clear about that, but it’s very clear [that] that’s what you do * * *. You 

do not appear to be rehabilitated. The court must consider the seriousness 

factors under [R.C. 2929.12], and again, that [implicates your] significant 

juvenile history, including the non-compliance. Under the statute, you also 

satisfy the provisions that it was the relationship with the victim that 

facilitated the offense[,] and [the victim’s] age is a contributing factor. * * * 

In the sexual battery charge, you were 28 [years old] and the victim had 

turned 16 * * * one month [before the commission of the offense]. Because 

you have been convicted of sexual battery[,] it is a felony of the third 

degree[,] and there is a presumption for prison[.] You do [sic] meet the 

following elements [on the basis of which] the court concludes prison is 

appropriate. Your conduct was more serious than conduct normally 

constituting the offense[s] [with which you were charged] because it’s your 

relationship with the victims that facilitated [the] offense[s]. [The] 

differen[ce] [between your age and that of the victim, who was] just turning 

16 when you were * * * 28[, is another factor making your conduct more 

serious than conduct normally constituting the offense.] You have a 

serious juvenile record that makes this court believe it involved the same 

exact type of conduct[.] [T]he reason for that is it was a felony burglary 

charge on a reduction[,] and part of your sentence was you were ordered to 
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complete sex offender treatment. 

(Emphasis added.) Sentencing Transcript 10:19-11:23. 

{¶ 14} When the trial court mentioned that Schwytzer had, in the past, been 

ordered to complete sex offender treatment, Schwytzer responded, “[w]hich I did, your 

honor.” Id. at 11:24. The court then continued as follows: 

 You would not have had to [complete sex offender treatment] if [the 

corresponding juvenile offense] did not involve the same type of conduct [at 

issue] here * * *. Furthermore, your background and the facts of this case 

are disturbing. You have an extensive juvenile history. That history 

includes [the foregoing] felony burglary charge[, as part of which] you were 

ordered to complete treatment for impulsive disorder[,] and mental health 

and sex offender treatment, amongst other treatments. You violated 

probation[,] and you were committed. You had parole violations in 2007 

and two parole violations in 2008. The facts in this case demonstrate to 

the court that you clearly prey on young girls. Two girls came forward[,] 

and the [presentence investigation] report clearly indicates that there are 

more victims, [who] just didn’t come forward. * * *. [With respect to the 

sexual battery offense], the victim had just turned 16; you were 28; [and you 

and the victim] were [with two other persons] in a car in a McDonald’s 

parking lot. You * * * spoke quietly outside the car [with one of the other 

two persons], [and the two other persons] then left. You intentionally got 

[the victim] alone in the car where you then sexually assaulted her. There 

was no provocation; no relationship; nothing more than you having 
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compulsive behavior to sexually assault young girls. I have personally 

been to that McDonald’s. I cannot even begin to describe what I think of 

when I hear about that conduct in that parking lot. That is an extremely 

small parking lot. There’s no extended parking[, and] no semi parking[,] 

[and] all the cars are very close in proximity[.] [A]nd you’re having sex in a 

car in the McDonald’s parking lot during business hours. There’s 

absolutely no excuse[,] [no] reason[,] [n]or any explanation for that. You 

didn’t care if anyone saw you; nothing was going to stop you from attacking 

that girl in that car. 

* * * 

 In looking at * * * mitigating factors, the court finds none. * * * The 

court doesn’t find anything believable you’ve said here today. You have 

had—you’re 28[, so] you’ve had plenty of time to get treatment [since you 

were adjudicated delinquent as a juvenile]. You said yourself [that] you 

had all kinds of treatment ordered during your juvenile history[.] [Y]ou have 

a father who’s not [a good] example, and yet you’ve done nothing to help 

yourself. You’ve done nothing to get treatment on your own[.] [Y]ou’ve 

not taken the [prescribed] medication for any mental health issue[s] you may 

have; instead, you hung out with children or girls that were [10] years or 

more younger than you and smoked marijuana[.] [A]nd the court also finds 

it troubling that this is the reason [you said earlier that] you’re ready to 

change[,] because you haven’t been in that big of trouble [sic] before. You 

* * * have an adult record, [though] it’s just not as serious as this one [sic], 
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but you’ve [been convicted of] theft[,] [and were charged with] drug 

[offenses] that were amended to disorderlies. * * * 

Id. at 12:1-14:2. 

{¶ 15} The trial court’s explanation conveys an emphatic belief that a prison 

sentence was necessary as a sanction for the offense of sexual battery, regardless of 

whether a presumption in favor of prison was applicable. After noting the victim’s age, 

Schwytzer’s age, the nature of the offense and the degree of the offense, the court 

referred only once to a presumption, and then discussed its rationale at length. The court 

deemed a prison sentence to be necessary in reliance on the presentence investigation 

report, which recommended that Schwytzer be sentenced to prison; the likelihood that 

Schwytzer would commit similar offenses in the future; the seriousness of Schwytzer’s 

conduct, which the court found to be more serious than conduct normally constituting the 

offense; Schwytzer’s considerable juvenile record, which included indications that 

Schwytzer had a predilection to commit sex offenses; the circumstances of the offense, 

which the court found to be particularly disturbing; and the lack of any mitigating factors. 

{¶ 16} Furthermore, the trial court imposed nearly the maximum prison term for the 

other offense with which Schwytzer was charged—unlawful sexual conduct with a minor, 

a fourth-degree felony. Although no presumption in favor of prison applied to the 

offense, the court determined nonetheless that a term in prison was warranted. This 

determination suggests, all but conclusively, that the court’s decision to impose a prison 

sentence for the more serious offense of sexual battery was based independently on the 

court’s discretion, rather than the court’s incorrect reference to a presumption in favor of 

prison. 
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{¶ 17} Schwytzer argues that the trial “court’s application of a presumption of 

prison in sentencing [him], where no such presumption exists,” is “contrary to law in the 

most elementary meaning of the phrase.” Appellant’s Brief 8, citing State v. Lofton, 2d 

Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. He cites two opinions from the 

Seventh District Court of Appeals in support of his argument. 

{¶ 18} In the first of these, the trial court sentenced the defendant to a total of 30 

months in prison, and in its judgment entry, the court found that the “ ‘[d]efendant had 

failed to overcome the presumption of imprisonment under [R.C.] 2929.13(D).’ ” State v. 

Robinson, 7th Dist. Mahoning No. 07 MA 224, 2008-Ohio-4321, ¶ 5, quoting the trial 

court’s judgment entry. Yet, the fourth-degree felony and fifth-degree felony “offenses 

to which [the defendant] pleaded guilty [were] not [among] the offenses listed in R.C. 

2929.13(D),” nor did any “other statute [establish] a presumption in favor of a prison term 

for * * * the offenses to which [the defendant] pleaded guilty.” Id. at ¶ 7. As a result, the 

Seventh District vacated the sentence. Observing that R.C. 2929.13(B)(1) establishes a 

presumption in favor of community control sanctions for fourth- and fifth- degree felonies, 

the Seventh District explained that it could not “excuse the fact that the trial court used an 

incorrect presumption for imprisonment in place of a correct presumption against 

imprisonment[,] simply because the trial court made other findings which would [have] 

support[ed] the [imposition of a prison] sentence.” See id. at ¶ 9-22. Here, however, no 

mandate or presumption in favor of community control sanctions applied to the offenses 

for which Schwytzer was sentenced to prison. See R.C. 2929.13(B)(1)(a)(ii), (C) and 

(D)(1). 

{¶ 19} In the second of the Seventh District cases, the defendant was convicted 
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on two counts of gross sexual imposition under R.C. 2907.05(A)(4), and the trial court 

found that a term in prison was presumptively necessary pursuant to R.C. 2907.05(C)(2) 

and 2929.13(D). State v. DiMichelle, 7th Dist. Jefferson No. 09-JE-31, 2010-Ohio-3169, 

¶ 13 and 17-18. On review, the Seventh District noted that the trial court had relied on 

versions of R.C. 2907.05 and 2929.13 which became effective after the defendant had 

committed the offenses for which he was convicted, meaning that the trial court should 

have applied the previous versions of the statutes. See id. at ¶ 19-25. The Seventh 

District reasoned that, “[b]ecause the trial court improperly applied the wrong statutory 

presumption in favor of prison, the sentence is contrary to law and must be reversed.” 

Id. at ¶ 25. 

{¶ 20} Schwytzer argues likewise that because the trial court in this case 

incorrectly stated that a presumption applied to the offense of sexual battery, the sentence 

was contrary to law. Appellant’s Brief 8-10. Although the trial court did refer to a 

presumption, we find the record suggests that the court did not rely on the presumption 

to any meaningful extent as part of its sentencing determination. Instead, the court 

determined that a term in prison was the appropriate punishment based on the purposes 

and principles of felony sentencing set forth in R.C. 2929.11 and 2929.12. In DiMichelle, 

by contrast, the Seventh District found that “there [was] no question that the trial court 

applied a presumption of prison.” DiMichelle at ¶ 13. 

{¶ 21} On review of the record of Schwytzer’s sentencing hearing, we find that in 

sentencing Schwytzer to a term in prison of 60 months on the charge of sexual battery, 

the trial court relied on the facts of the case and the statutory purposes and principles of 

felony sentencing, rather than its single reference to an inapplicable presumption in favor 
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of prison. The record fully supports the trial court’s findings, and the term was within the 

range authorized by R.C. 2929.14(A)(3)(a). Consequently, we hold that the trial court’s 

erroneous reference to a presumption in favor of prison was a harmless error. 

Schwytzer’s assignment of error is overruled. 

III. Conclusion 

{¶ 22} The trial court’s incorrect reference to a presumption in favor of a term in 

prison for the offense of sexual battery did not affect Schwytzer’s substantial rights. 

Although the trial court referred to a presumption, the court’s rationale for the sentence 

demonstrates that the court deemed a term in prison to be the appropriate sanction 

regardless of whether a presumption applied to the offense under the circumstances. 

Therefore, Schwytzer’s convictions are affirmed. 

. . . . . . . . . . . . . 

HALL, J., concurs. 

FROELICH, J., dissents: 

{¶ 23} By dissenting, I am not saying that the ultimate sentence was not 

appropriate and supported by the record. My concern is that we have no way of discerning 

how much weight, if any, the trial court gave to the non-existent presumption and whether 

the result would have been the same had the trial court exercised its discretion without 

that presumption. An appellate court cannot and should not exercise its discretion based 

on the record and find that the sentence was based solely on the trial court’s discretion 

and the statutory factors, as opposed to the statutory presumption which the court 

articulated. 
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{¶ 24} The Robinson decision, while neither binding nor precisely on point, is 

nonetheless instructive. There, the trial court mistakenly used a presumption of 

imprisonment when sentencing the defendant to consecutive prison terms on his guilty 

pleas to burglary and breaking and entering. See Robinson, 7th Dist. Mahoning No. 07 

MA 224, 2008-Ohio-4321, ¶ 1-2. As in this case, the State acknowledged the trial court’s 

error, yet argued that the error was harmless because the prison sentence imposed was 

within the statutory range and supported by the record. The State relied on State v. Good, 

3d Dist. Logan No. 8-04-37, 2005-Ohio-2660, which held that the trial court’s citation to 

inapplicable factors, in addition to the correct statutory factors, when imposing sentence 

was harmless. The appellate court vacated Robinson’s sentence, stating in part: 

The difference between the error the trial court made in Good and the error 

the trial court made in this case is not merely a difference of degree, which 

can be judged similarly; it is a difference of type, which calls for a difference 

[sic] type of analysis. We cannot excuse the fact that the trial court used an 

incorrect presumption for imprisonment * * * simply because the trial court 

made other findings which would support the sentence imposed. The trial 

court started its consideration of the proper punishment to be imposed on 

Robinson from the wrong place. 

Id. at ¶ 9. 

{¶ 25} The State seeks to distinguish Robinson on the basis that, at the time the 

defendant in that case was sentenced, the sentencing statute required trial courts to 

determine that defendants convicted of non-violent fourth- and fifth-degree felonies (such 

as Robinson) were not amenable to community control sanctions before imposing a 
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prison sentence. See former R.C. 2929.13(B)(1)-(2). The trial court in Robinson failed to 

do so. Robinson at ¶ 22. This is a distinction without a difference since the Robinson

appellate court could have found that the other factors in the record demonstrated that 

Robinson was not amenable to community control. 

{¶ 26} Further, any distinction that does exist between Robinson and the instant 

case is insufficient to overcome the likelihood of prejudice stemming from the trial court’s 

explicit beginning of its analysis of Schwytzer’s sentencing factors “from the wrong place.” 

See Robinson at ¶ 9. Although the trial court thoroughly considered the seriousness and 

recidivism factors before imposing a prison term in Schwytzer’s case, the record does not 

disclose the extent to which that conclusion was influenced by the trial court’s erroneous 

belief that a presumption of prison applied. While the trial court detailed factors that may 

have supported a prison sentence even in the absence of a statutory presumption of such, 

I cannot say, beyond a reasonable doubt, that the trial court would have imposed a prison 

term regardless of the erroneous presumption. 

Copies sent to: 

Janna L. Parker 

Benjamin W. Ellis 

Hon. Stacy M. Wall