[Cite as State v. Pitzer , 2020-Ohio-4322.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY State of Ohio, : Case No. 19CA23 Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY Gage Allen Pitzer, : Defendant-Appellant. : RELEASED 8/26/2020

APPEARANCES: Tyler E. Cantrell, Office of Young & Caldwell, LLC, West Union, Ohio, for appellant. Anneka P. Collins, Highland County Prosecutor, and Adam J. King , Highland County Assistant Prosecutor, Hills boro, Ohio, for appellee.

Hess, J. {¶1} Gage Allen Pitzer appeals his conviction for felonious assault, abduction, and having a weapon while under disability, with a forfeiture s pecification and contends that the trial court abused its discretion in sentencing him to a total prison term of seven years. Pitzer and the state entered into a plea agreement, whic h included a jointly recommended total consecutive four and one-half years term of i ncarceration. However, the trial court considered certain factors, rejected the jointl y recommended sentence, and

determined that a total consecutive term of incarceration of se ven years was appropriate. Pitzer argues that the trial court improperly relied upon the a rresting officer’s affidavit when it increased the total prison term. We conclude that the t rial court’s consideration of the affidavit was not improper, the sentence is not clearly and convincingly contrary to law, and Pitzer has failed to demonstrate by clear and convinci ng evidence that theHighland App. No. 19CA23 2

sentence is not supported by the record. We overrule Pitzer’s s ole assignment of error and affirm the trial court’s judgment.

I. PROCEDURAL HISTORY {¶2} In September 2019, the Highland County Grand Jury indicted Pitz er on one count of felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony; one count of abduction in violation of R.C. 2905.02(A)(2), a third- degree felony; one count of receiving stolen property in violation of R.C. 2913.51, a fourt h-degree felony; one count of domestic violence in violation of R.C. 2919.25(A), a first-d egree misdemeanor; one count of endangering children in violation of R.C. 2919.22(A), a first-degree misdemeanor; one count of having weapons while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony; and a forfeiture specific ation as provided in R.C. 2941.1417. Pitzer and the state entered into a plea agreement i n which Pitzer pleaded guilty to felonious assault, abduction, and having weapons unde r disability, and conceded forfeiture. The state dismissed the counts of receiving stolen property, domestic violence, and endangering children. The terms of the plea agreement inclu ded a jointly recommended term of incarceration of two years for felonious as sault, eighteen months for abduction, and twelve mont hs for weapons under disability, to run consecutive for a total prison term of four and one-half years. {¶3} At the sentencing hearing, the trial court determined that a nu mber of considerations made the felonious assault and weapon offenses p articularly disturbing: Pitzer’s five-year-old son was present during the incident, Pit zer used a weapon to threaten members of the public who had telephoned 9-1-1, and th ere was physical harm to Pitzer’s wife’s head and face. As a result, the trial court sentenced Pitzer to four yearsHighland App. No. 19CA23 3

for felonious assault, rather than the jointly recommended two years, and eighteen months for weapons under disability, rather than the recommende d twelve months. The trial court imposed the eighteen month jointly recommended sent ence for abduction. As jointly recommended, the trial court ran each sentence consecut ively for a total prison term of seven years, rather than the jointly recommended total consecutive term of four and one-half years.

II. ASSIGNMENT OF ERROR {¶4} Pitzer assigns the following error for our review: 1. The Court abused its discretion in sentencing the Defendant[ .]

III. LAW AND ANALYSIS {¶5} Pitzer does not challenge the consecutive aspect of his sentenc e. He and the state jointly recommended that the prison terms on each ind ividual count run consecutively and the trial cour t ran his sentences consecutive ly. Rather Pitzer challenges the length of a nonmaximum sentence for the single c ounts of felonious assault and weapons under disab ility because the trial court im posed longer terms than jointly recommended on those two counts. Thus, this challenge r equires an analysis used

in Marcum, infra , not the consecutive sentence review used in State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 15-17.

A. Standard of Review {¶6} When reviewing felony sentences, appellate courts must apply th e standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum , 146 Ohio St.3d 516, 2016– Ohio–1002, 59 N.E.3d 1231, ¶ 1, 22–23. Under R.C. 2953.08(G)(2) , “[t]he appellate court's standard for review is not whether the sentencing court abused its discretion.”Highland App. No. 19CA23 4

Instead, R.C. 2953.08(G)(2) specifies that an appellate court m ay increase, reduce, modify, or vacate and remand a challenged felony sentence if th e court clearly and convincingly finds either: (a) That the record does not support the sentencing court's fin dings 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; (b) That the sentence is otherwise contrary to law. {¶7} Although R.C. 2953.08(G)(2)(a) does not mention R.C. 2929.11 an d 2929.12, the Supreme Court of Ohio has determined that the same standard of review applies to those statutes. Marcum at ¶ 23 (although “some sentences do not require the findings that R.C. 2953.08(G)[2][a] specifically addresses[,] * * * it is fully consistent for appellate courts to review those sentences that are imposed sol ely after consideration of

the factors in R.C. 2929.11 and 2929.12 under a standard that i s equally deferential to the sentencing court”); State v. Butcher , 4th Dist. Athens No. 15CA33, 2017–Ohio–1544, ¶ 84. Consequently, “an appellate court may vacate or modify an y sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the senten ce.” Marcum at ¶ 23; Butcher at ¶ 84. {¶8} “Once the trial court considers R.C. 2929.11 and 2929.12, the b urden is on the defendant to demonstrate by clear and convincing evidence t hat the record does not support his sentence.” State v. Akins–Daniels , 8th Dist. Cuyahoga No. 103817, 2016– Ohio–7048, ¶ 9; State v. O'Neill , 3d Dist. Allen No. 1–09–27, 2009–Ohio–6156, ¶ 9, fn. 1 (“The defendant bears the burden to demonstrate, by clear and c onvincing evidence, that the sentence is not supported by the record, that the sentencin g statutes' procedure wasHighland App. No. 19CA23 5

not followed, or there was not a sufficient basis for the impos ition of a prison term; or that the sentence is contrary to law”); State v. Leonhart , 4th Dist. Washington No. 13CA38, 2014–Ohio–5601, ¶ 5 (“because [appellant] failed to establish b y clear and convincing evidence either that the record does not support the trial cour t's findings or that the sentence is otherwise contrary to law, these assignments of err or are meritless”). “Clear and convincing evidence is ‘that measure or degree of proof whi ch 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 c riminal cases, and which will p roduce in the mind of the trier of facts a firm belief or conviction as to the facts soug ht to be established.’ ” State ex

rel. Husted v. Brunner , 123 Ohio St.3d 288, 2009–Ohio–5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; see also State v. Day, 2019-Ohio-4816, 149 N.E.3d 122, ¶ 8-10 (4th Dist.). B. Pitzer’s Sentence is Supported by the Record and Is Not Cont rary to Law {¶9} “ ‘[A] sentence is generally not contrary to law if the trial c ourt considered the R.C. 2929.11 purposes and principles of sentencing as well as the R.C. 2929.12 seriousness and recidivism factors, properly applied post[-]rel ease control, and imposed a sentence within the statutory range.’ ” State v. Perry , 4th Dist. Pike No. 16CA863, 2017– Ohio–69, ¶ 21, quoting State v. Brewer , 2014–Ohio–1903, 11 N.E.3d 317, ¶ 38 (4th Dist.). {¶10} In its judgment entry, the trial court stated that it considere d the R.C. 2929.11 purposes and principles of sentencing and the R.C. 2929 .12 seriousness and recidivism factors, properly applied post-release control, and imposed a four-year prison term for felonious assault and an eighteen-month term for weapo ns under disability, both which are within the statutory range. See R.C. 2903.11(D)(1)(a) (except as otherwiseHighland App. No. 19CA23 6

provided, felonious assault is a second-degree felony); R.C. 29 23.13(B) (having weapons under disability is a third-degree felony); R.C. 2929.14(A)(2)( a) and (3)(b) (providing generally that the prison term for a second-degree felony is an indefinite term of two, three, four, five, six, seven, six, seven, eight years and the prison term for third-degree felony is a definite term of nine, twelve, eighteen, twenty-fou r, thirty, and thirty-six months). {¶11} Pitzer argues that the trial court relied on information in the arresting officer’s affidavit which “was not in alliance with the facts p resented” by the state. He also argues that the seriousness and recidivism factors under R.C. 2 929.12 do not support his sentence. He contends that he had “a clean adult record,” the c rime did not involve the general public, and was not a crime likely to be committed agai n. In other words, Pitzer disagrees with the trial court’s analysis and balancing of thes e factors and contends that the court abused its discretion by taking into consideration in formation in the affidavit describing crimes for which Pitzer had not been convicted. {¶12} The Supreme Court of Ohio summarized the applicability of R.C. 2929.11 and 2929.12 in sentencing decisions: In Ohio, two statutory sections serve as a general guide for ev ery sentencing. First, R.C. 2929.11( A) provides that the overriding purposes of felony sentencing “are to protect the public from future crime by the offender and others and to punish the offender.” To achieve these purpos es, the trial court “shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offen der, and making restitution.” Id. The sentence must 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 c rimes committed by similar offenders.” R.C. 2929.11(B). * * * Second, R.C. 2929.12 specifically provides that in exercising i ts discretion, a trial court must consider certain factors that make the offen se more or less serious and that indicate whether the offender is more or less likely toHighland App. No. 19CA23 7

commit future offenses. * * * [A]n offender's conduct is consid ered less serious when there are “substantial grounds to mitigate the off ender's conduct, although the grounds are not enough to constitute a de fense.” R.C. 2929.12(C)(4). R.C. 2929.12(C) and (E) also permit a trial cour t to consider “any other relevant factors” to determine that an offense is le ss serious or that an offender is less likely to recidivate. State v. Day at ¶ 15, quoting State v. Long , 138 Ohio St.3d 478, 2014–Ohio–849, 8 N.E.3d 890, ¶ 17–18. {¶13} Here the trial court’s judgment entry stated that it considered both the principles and purposes of sentencing under R.C. 2929.11 and th e seriousness and recidivism factors under R.C. 2929.12. At the sentencing hearin g, the trial court more specifically found: Well, Mr. Pitzer, this case is disturbing. I’m taking into cons ideration the fact that you have admitted your guilt and avoided placing your wife and others through the rigors of a trial. I also note that it’s your first felony offense as an adult. Bu t, unfortunately, for your initiation you chose some real serious offenses. There are several aggravating factors here, in my judgment: The fact that your son was present. The officer indicated that the weapo n appeared to have been jammed, and it appeared to have been caused by a d oublefeed, meaning that more likely it was caused by repeatedly tryi ng to fire the weapon. * * * I also note that one of the people that called 9-1-1 was a witn ess who said that he had been threatened with a weapon as well. Whether you intended to do that or not, obviously it would have scared some body like that; so, there were people in the public that were involved. And then this whole thing took place with your child being in t he room, or the house. There were some efforts to harm your wife. The fact that she wa sn’t hurt badly isn’t the point. The point is that you were aggressi ve toward her; and apparently bloodied her nose * * * it appeared she had been struck about the head and the scalp. * * * But given that situation, uh, the Court is of the opinion that a two (2) year sentence for the felonious assault is not sufficient. {¶14} The trial court also found that the sentences should be served consecutively:Highland App. No. 19CA23 8

[T]he offenses * * * were of so great or unusual harm caused, n ot just to the victim, but to the public in general, that no one prison term w ould adequately reflect the seriousness of your conduct. And, given the fact that you’ve had a previous conviction in Ju venile Court for an assault on a police officer; that your history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crime. {¶15} The trial court considered the arresting officer’s affidavit in making its sentencing decision. Pitzer argues that the trial court abused its discretion in considering the arresting officer’s affidavit because some of the details i n it differed from the prosecutor’s statements made at the sentencing hearing and it i ncluded information about criminal acts the state did not pursue. However, Pitzer cites n o legal authority for his argument. The state contends that “it was obviously proper” for the trial court to consider the information in the affidavit but the state cites no legal a uthority for its argument. {¶16} At the sentencing hearing, the trial court is permitted to take into consideration defense counsel’s statements, defendant’s stateme nt, prosecutor’s statement, the victim’s or victim’s representative’s statement, any PSI report that may have been ordered, and any information relevant to the impositi on of the sentence presented by any other persons. See R.C. 2929.19(A); Crim.R. 32. Before imposing a sentence, the court must consider the record and any informatio n presented at the sentencing hearing. R.C. 2929.19(B)(1). The trial court may al so take into account evidence of other crimes, even though they were dismissed as pa rt of plea bargaining: As recently as 2008, in State v. Beaver , 4th Dist. Washington No. 07CA62, 2008–Ohio–4513, ¶ 13, this court pointed to other courts that h ave held that at sentencing, it is permissible to consider evidence of other crimes. See also State v. Starkey , 7th Dist. Mahoning No. 06MA110, 2007–Ohio–6702 (courts have consistently held that evidence of other crimes, i ncluding crimes that never result in criminal charges being pursued, or criminal charges that are dismissed as a result of a plea bargain, may b e considered at sentencing[)]; State v. Tolliver , 9th Dist. Wayne No. 03CA0017, 2003–Highland App. No. 19CA23 9

Ohio–5050 (uncharged crimes in pre-sentence investigation repor t may be a factor at sentencing); United States v. Mennuti , 679 F.2d 1032, 1037 (2d Cir.1982) (similar through [sic.] uncharged crimes may be a fac tor at sentencing); United States v. Needles , 472 F.2d 652, 654–56 (2d Cir.1973[)] (a dropped count in an indictment may be considered in sentencing). We also find the Second District's decision in State v. Bowser , 186 Ohio App.3d 162, 2010–Ohio–951, 926 N.E.2d 714 (2d Dist.) t o be instructive: “[I]t is well established in Ohio law that the cou rt may consider information beyond that strictly related to the conviction offe nse. For example, the statute governing the contents of a PSI report sim ply says, ‘[T]he officer making the report shall inquire into the circums tances of the offense and the criminal record, social history, and present co ndition of the defendant.’ R.C. 2951.03(A). The statutory directive no doubt r esults in the sentencing court considering evidence that would be inadmissibl e at trial, State v. Davis (1978), 56 Ohio St.2d 51, 10 O.O.3d 87, 381 N.E.2d 641—like hearsay—and results in the court considering evidence entirely unrelated to the conviction offense.” Bowser at ¶ 15

. State v. Wagner , 4th Dist. Adams No. 16CA1033, 2017-Ohio-8653, ¶ 13. {¶17} Pitzer’s argument that the trial court should limit its review to only those facts set forth by the prosecutor at the sentencing hearing is similar to the argument made by the defendant in Huntley, infra. There the defendant argued that the trial court’s sentencing review should be limited to the stipulated facts in the plea agreement. We rejected this argument and explained that trial courts may impo se a “real offense”

sentence: In their treatise, Griffin and Katz discuss the concept of “rea l offense sentencing.” See Griffin & Katz, Ohio Felony Sentencing Law (20 02 Ed.) at 545-46. There, Griffin and Katz state: “Notwithstanding that an offense has been plea bargained to a lesser offense, pre-sentence reports a re traditionally written to contain all facts in the police file. Likewise, judges have been accustomed to sentence an offender based on the judge 's perception of the true facts even though such facts may be inco nsistent with a plea bargain. * * * Notwithstanding the plea bargain the judg e may sentence the offender within the statutory parameters of the pl ea bargained offense based upon what the record shows to have been the real facts of the offense. Thus, seriousness of the offense will generally be based upon the judge's perception of the real facts of what occurred, and the plea bargained offense will simply set a ceiling on what the judge c an impose.” Under the concept of “real offense sentencing” a defendant rece ives the benefit of his plea when his sentence is within the statutory p arameters ofHighland App. No. 19CA23 10

the pled offense. Therefore, sentencing courts may consider the real fa cts behind a plea agreement when sentencing a defendant. A defendant's plea to a lesser charge is not a statutory facto r under the felony sentencing guidelines. State v. Murphy, Meigs App. No. 00CA13, 2001-Ohio-2461. However, following a plea agreement, courts mus t look at the totality of the circumstances when determining the seriousn ess of an offender's conduct. Id.; State v. Coleman, Meigs App. No. 00CA10, 2001- Ohio-2436 citing State v. Garrard (1997), 124 Ohio App.3d 718, 722, 707 N.E.2d 546. See, also, R.C. 2929.12(A) (stating that the senten cing court may consider “any other factors that are relevant to achieving” the purposes and principles of sentencing). Real offense sentencing allows sentencing courts to take into a ccount the true facts of a case even though a plea bargain may result in a more lenient charge. (Emphasis sic.) State v. Huntley , 4th Dist. Hocking No. 02CA15, 2002-Ohio-6806, ¶ 12-14. “Ohio courts have upheld trial courts' reliance on the actual facts from the indictment ‘even if [the defendant] negotiated a plea at odds with the indicted elements .’ ” (Brackets sic.) State v. Kimbrough , 1st Dist. Hamilton No. C-180295, 2019-Ohio-2561, ¶ 4, quoting State v. Mayor , 7th Dist. Mahoning No. 07 MA 177, 2008-Ohio-7011, ¶ 17; State v. Gore , 10th Dist. Franklin No. 15AP-686, 2016-Ohio-7667, ¶ 12-13 (discussin g “real-offense” sentencing). “Criminal defendants must accordingly proceed with eyes wide open to this possibility when they engage in the plea exercise.” Kimbrough at ¶ 4. {¶18} The trial court’s consideration of the arresting officer’s affi davit was entirely proper and is the type of information a trial court considers w hen imposing a sentence.

We find no error or abuse of discretion. {¶19} Although Pitzer disagrees with the trial court's analysis and i ts balancing of the seriousness and recidivism factors in R.C. 2929.12, in impo sing a sentence it is the role of the trial court to determine the weight afforded to any particular statutory factors, mitigating grounds, or other relevant circumstances. See State v. Bailey , 4th Dist.Highland App. No. 19CA23 11

Highland No. 11CA7, 2011–Ohio–6526, ¶ 34, quoting State v. Arnett , 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000) (“in considering the factors set for th in R.C. 2929.12, the trial court has ‘the discretion to determine the weight to assign a p articular statutory factor’ ”); State v. Kuykendall , 2017–Ohio–7280, 97 N.E.3d 32, ¶ 17 (12th Dist.), quoting State v. Steger , 12th Dist. Butler No. CA2016–03–059, 2016–Ohio–7908, ¶ 18 (“A lthough appellant disagrees with the trial court's analysis and its bal ancing of the seriousness and recidivism factors in R.C. 2929.12, it is ‘[t]he trial court [t hat], in imposing a sentence, determines the weight afforded to any particular statutory fact ors, mitigating grounds, or other relevant circumstances' ”); State v. Reeves , 10th Dist. Franklin No. 14AP–856, 2015–Ohio–3251, ¶ 10, quoting State v. Todd , 10th Dist. Franklin No. 06AP–1208, 2007– Ohio–4307, ¶ 23 (“ ‘the trial court, in exercising its sentenci ng discretion, determines the weight afforded to any particular statutory factors, mitigating grounds, or other relevant circumstances' ”). {¶20} Pitzer has failed to meet his burden to establish that his pris on sentence was clearly and convincingly not supported by the record. “Simp ly because the court did not balance the factors in the manner appellant desires does no t mean that the court failed to consider them, or that clear and convincing evidence shows that the court's findings are not supported by the record.” State v. Butcher , 4th Dist. Athens No. 15CA33, 2017–Ohio–1544, ¶ 87. After reviewing the record, we find no cl ear and convincing evidence that the court erred in balancing the factors in R.C. 2929.12 or in considering the principles and purposes of sentencing under R.C. 2929.11. T herefore, we overrule Pitzer's sole assignment of error.Highland App. No. 19CA23 12

IV. CONCLUSION {¶21} We overrule Pitzer’s assignment of error and affirm the judgmen t of the trial

court.

JUDGMENT AFFIRMED.Highland App. No. 19CA23 13

JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the HIGHLAND COUNTY COURT OF COMMON PLEAS, to carry this judgment into execu tion.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upo n the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a not ice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to R ule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the sta y will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY : ________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for fu rther appeal commences from the date of filing with the clerk.