[Cite as State v. Ditto, 2010-Ohio-1503.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PUTNAM COUNTY 

 

STATE OF OHIO, CASE NO. 12-09-08 

 PLAINTIFF-APPELLEE, 

 v. 

KALOB DITTO, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Putnam County Common Pleas Court 

Trial Court No. 09-CR-27 

Judgment Affirmed 

Date of Decision: April 5, 2010 

 

APPEARANCES: 

Matthew A. Cunningham for Appellant 

Todd C. Schroeder for Appellee 
Case No. 12-09-08 

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WILLAMOWSKI, P.J. 

{¶1} Defendant-appellant Kaleb Ditto (“Ditto”) brings this appeal from 

the judgment of the Court of Common Pleas of Putnam County finding him guilty 

of failing to stop after an accident and sentencing him to one year in prison. For 

the reasons set forth below, the judgment is affirmed. 

{¶2} On March 28, 2009, the victim left a party on foot. Ditto, who had 

been drinking, decided to go find the victim on his four-wheeler. While operating 

the four-wheeler, Ditto struck the victim and severely injured her. He then 

panicked and returned to the party. He did not tell anyone about the accident and 

eventually went home. The victim was subsequently found lying injured on the 

side of the road. An ambulance was called and the victim was taken to the 

hospital for treatment. She suffered a broken jaw, her second vertebra was 

fractured, and she was suffering from hypothermia. She has additionally suffered 

from psychological problems and economic harm as a result of the accident. 

{¶3} On May 1, 2009, Ditto was indicted on one count of failing to stop 

after an accident in violation of R.C. 4549.02, a fifth degree felony. Pursuant to a 

plea agreement, Ditto entered a plea of no contest on August 4, 2009. A 

sentencing hearing was held on Sept 2, 2009. At the hearing, Ditto was sentenced 

to twelve months in prison. Ditto appeals from this judgment and raises the 

following assignment of error. 
Case No. 12-09-08 

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The trial court erred in sentencing Ditto to the maximum 

sentence. 

{¶4} Ditto argues that the trial court erred by not considering the factors 

set forth in R.C. 2929.12. Ditto claims that these factors, considered along with 

the presumption against prison for a fifth degree felony committed by a first time 

offender, would not support the maximum sentence. The basis for Ditto’s claim 

is whether the trial court considered the factors set forth in R.C. 2929.12, not how 

the factors were applied. When reviewing whether the factors were considered, 

the standard of review is clear and convincing evidence as set forth in R.C. 

2953.08(G).1

 State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 

124. 

R.C. 2953.08(G) is also applicable to R.C. 2929.12 only insofar 

as reviewing whether the trial courts bothered to consider the 

factors of divisions (B) through (D). If they did consider the 

factors of divisions (B) through (D), then their consideration of 

these factors is reviewed under an abuse of discretion standard, 

since they are specifically indicated by R.C. 2929.12 to be 

discretionary. 

Id. at ¶42 (concurring opinion). Although the trial court is required to consider 

the factors set forth in R.C. 2929.12, the trial court is not required to either discuss 

the factors on the record or even to state that the factors were considered on the 

 

1

 A distinction is noted between an appeal based, as here, upon whether the trial court considered the 

factors of R.C. 2929.12 and appeal based upon how the trial court, having considered the factors of R.C. 

2929.12, applied those factors. In the former, the standard of review on appeal is whether the appellate 

court clearly and convincingly finds that the sentence is contrary to law, i.e. that the trial court failed to 

consider the factors of R.C. 2929.12, as set forth in R.C. 2953.08(G)(2)(b). In the latter, the standard of 

review on appeal is an abuse of discretion standard, discretion being explicitly granted to the trial court in 

R.C. 2929.12. 
Case No. 12-09-08 

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record as long as the record is sufficient for a court to determine that the 

consideration occurred. State v. Scott, 3d Dist. No. 6-07-17, 2008-Ohio-86. 

{¶5} A review of the record in this case indicates that the trial court did 

not specifically indicate that it had considered the statutory factors set forth in 

R.C. 2929.12. The judgment entry indicated that the court “considered the record, 

oral statements, any victim impact statements, and the pre-sentence investigation 

report prepared, as well as the principles and purposes of sentencing under [R.C. 

2929.19].” Sept. 3, 2009, Entry, 1. Although the trial court did not specifically 

address the factors of R.C. 2929.12, the applicable factors were raised through the 

oral statements made during the hearing and the pre-sentence investigation. The 

trial court considered the serious physical, psychological and economic harm 

suffered by the victim, the fact that the offender was under the influence of 

alcohol at the time of the offense, the remorse shown by the offender, the 

relationship of the parties, and the seriousness of the offender’s actions. Thus, the 

record is sufficient to indicate that the trial court gave consideration to the 

applicable statutory factors set forth in R.C. 2929.12. 

{¶6} Ditto was charged with a fifth degree felony. The range of prison 

sentences for this degree of offense is six to twelve months. A trial court has 

discretion to impose any sentence within the statutory range. State v. Mathis, 109 

Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. Since the sentence imposed is 

within the range permitted by law, the trial court did not abuse its discretion by 
Case No. 12-09-08 

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imposing a sentence of twelve months in prison.2 Ditto has failed to clearly and 

convincingly demonstrate to this court that the sentence is contrary to law or that 

the trial court failed to consider the factors set forth in R.C. 2929.12. Thus, the 

assignment of error is overruled. 

{¶7} Having found no error prejudicial to Ditto, the judgment of the 

Court of Common Pleas of Putnam County is affirmed. 

Judgment Affirmed 

SHAW and PRESTON, J.J., concur. 

/jnc 

 

2

 This court notes that in addition to not being an abuse of discretion, the sentence is not clearly and 

convincingly shown to be contrary to law. Thus, under either standard of review, the sentence is not 

improper.