[Cite as State v. Mizicko , 2022-Ohio-262.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNT Y STATE OF OHIO, Plaintiff-Appellee,

- v - KEITH D. MIZICKO, Defendant-Appellant. CASE NO. 2021 - T-0017

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2020 CR 00708

O P I N I O N Decided: Januar y 31, 2022 Jud g ment: Affirmed

Dennis Watkins , Trumbull County Prosecutor, and Ryan J. Sanders , Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Str eet, N.W., Warren, OH 44481 ( For Plaintiff-Appellee )

. Michael A. Partlow , 112 South Water Street, Suite C, Kent, OH 44240 (For Defendan tAppellant )

. MARY JANE TRAPP, J. {¶1} Appellant, Keith D. Mizicko (“Mr. Mizicko”), appeals the judgme nt of the Trumbull County Court of Common Pleas sentencing him to an aggr egate prison term of 60 months following his guilty pleas to attempted unlawful sexu al conduct with a minor and unlawful sexual conduct with a minor. {¶2} Mr. Mizicko asserts one assignment of error, contending that th e record does not support the trial court’s imposition of a prison sente nce instead of community2 Case No. 2021-T-0017 control sanctions. He further contends that the appellate stan dard of review violates the due process rights of “the accused.” {¶3} After a review of the record and pertinent law, we find that Mr . Mizicko’s assignment of error lacks merit. Pursuant to binding precedent from the Supreme Court of Ohio, this court is not permitted to independently reweigh t he sentencing factors in R.C. 2929.11 and R.C. 2929.12. In addition, Mr. Mizicko has failed to present a coherent constitutional argument; therefore, we decline to address it. {¶4} Thus, we affirm the judgment of the Trumbull County Court of Co mmon Pleas. Substantive and Pr ocedural History {¶5} In December 2020, the Trumbull County Grand Jury indicted Mr. M izicko on three counts of unlawful sexual conduct with a minor, felonies of the third degree, in violation of R.C. 290 7.04(A) and (B)(3). He initially entered not guilty pleas. {¶6} Mr. Mizicko subsequently entered written and oral pleas of guil ty to amended count one, attempted unlawful sexual conduct with a min or, a felony of the fourth degree, in violation of R.C. 2923.02(A) and (E) and R.C. 2907.04(A) and (B)(3), and to count three as originally charged. The state agreed to dismiss count two at sentencing. {¶7} In February 2021, the trial court held a plea hearing and engag ed in a colloquy with Mr. Mizicko pursuant to Crim.R. 11. As a factual basis, the state indicated as follows: {¶8} “The State would have shown, with respect to Count One, that du ring September, 2020, the Defendant attempted to engage in fellatio with a 13-year old minor3 Case No. 2021-T-0017 female victim, date of birth is [REDACTED] of 2007, in a vacant apartment located at [REDACTED], City of Hubbard, Trumbull County, Ohio. The Defend ant is more than ten years older than the minor female and knew her age. The Defend ant had previously been advised of her age by a family member of the minor female as we ll as a Hubbard City Police officer. {¶9} “As to Count Three, the State would have shown that on Septembe r 11th, 2020, the Defendant did engage in vaginal intercourse with the same minor female victim at the same location. The State would have offered the testimo ny of the minor female, investigating officers, an eyewitness to Count Three, BCI foren sic scientists as well as medical personnel, and would have offered into evidence at tria l the victim’s rape kit, DNA connecting this Defendant to the crime that occurred on Septemb er 11th, as well as text messages between the victim and this Defendant.” {¶10} The trial court accepted Mr. Mizicko’s guilty pleas and found h im guilty. It set the matter for sentencing and ordered the completion of a p resentence investigation (“PSI”). {¶11} In March 2021, the trial court held a sentencing hearing. The victim’s father, Mr. Mizicko’s defense counsel, and Mr. Mizicko himself each add ressed the court. The trial court stated that it had considered the principles and pu rposes of felony sentencing, the relevant seriousness and recidivism factors, and the PSI. With respect to the PSI, the trial court commented as follows: {¶12} “The Court does take note of the presentence investigation. An d I can tell you, Mr. Mizicko, I’ve seen some pretty bad presentence investi gations, and yours is one of the worst I’ve seen.4 Case No. 2021-T-0017 {¶13} “You’re the kind of person that can be a poster child why [sic] we have sexual registration of sex offenders. This girl was 13-years o ld, and for you to cast blame on her because you claim she pursued you is – is almost unbelie vable. You have accepted no responsibility for your actions.” {¶14} The trial court sentenced Mr. Mizicko to prison terms of 18 mon ths on amended count one and 60 months on count three, to be served co ncurrently, for an aggregate prison term of 60 months. The trial court subsequent ly filed a judgment entry memorializing Mr. Mizicko’s sentences. {¶15} Mr. Mizicko appealed and raises one assignment of error: {¶16} “The trial court erred by sentencing appellant to a term of 60 months incarceration as the record does not support such a sentence.” Standard of Review {¶17} The standard of review for felony sentences is governed by R.C. 2953.08(G)(2). State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. That provision states: {¶18} “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. {¶19} “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 s tandard of review is not whether the sentencing court abused its discretion. The appell ate court may take any action authorized by this division if it clearly and convincing ly finds either of the following:5 Case No. 2021-T-0017 {¶20} “(a) That the record does not support the sentencing court’s fi ndings 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; {¶21} “(b) That the sentence is otherwise contrary to law.” {¶22} The Supreme Court of Ohio recently clarified in State v. Jones , 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, that contrary to the “dicta” in Marcum , R.C. 2953.08(G)(2)(a) does not provide a basis for an appellate cour t to modify or vacate a sentence based on the lack of support in the record for the tri al court’s findings under R.C. 2929.11 and 2929.12. Id . at ¶ 29; see Marcum at ¶ 23. According to the court, “[n]othing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 29 29.12.” Jones at ¶ 42. Moreover, the term “otherwise contrary to law” in R.C. 2953.08( G)(2)(b) does not encompass an appellate court’s conclusion that a sentence is no t supported by the record under R.C. 2929.11 and R.C. 2929.12. Id . at ¶ 32. Law and Analysis {¶23} Mr. Mizicko first contends that the record clearly and convinci ngly indicates that the trial court should have imposed sentences of community control sanctions. In essence, Mr. Mizicko disagrees with the trial court’s applicati on of R.C. 2929.11 and R.C. 2929.12 in determining his sentences. {¶24} R.C. 2929.11 and R.C. 2929.12 apply as a general judicial guide for every sentencing. State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 36. R.C. 2929.11(A) provides that the trial court “shall be guided by the overriding purposes6 Case No. 2021-T-0017 of felony sentencing,” which are “[1] to protect the public fro m future crime by the offender and others, [2] to punish the offender, and [3] to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or loc al government resources.” To “achieve those purposes,” the trial court “shal l consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the vict im of the offense, the public, or both.” Id. {¶25} R.C. 2929.12(A) grants the sentencing court discretion to deter mine the most effective way to comply with the purposes and principles o f sentencing. Foster at ¶ 37. In exercising that discretion, the court shall consider, a long with any other relevant factors, the seriousness factors in R.C. 2929.12(B) and (C) and the recidivism factors in R.C. 2929.12(D) and (E). R.C. 2929.12(A). {¶26} Here, the trial court stated at the sentencing hearing and in i ts sentencing entry that it considered the principles and purposes of sentenc ing in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12. Pursua nt to Jones , supra , we are not authorized to review Mr. Mizicko’s sentences in the man ner he requests. Rather, “the competing factors in R.C. 2929.11 and 2929.12 are for the sentencing court to weigh, not the court of appeals.” State v. Stanley , 11th Dist. Trumbull No. 2020-T-0039, 2021- Ohio-549, ¶ 12. {¶27} Mr. Mizicko next contends that the standard of review for felon y sentencing fails to provide meaningful appellate review and violates the d ue process rights of “the7 Case No. 2021-T-0017 accused.” This court recently rejected a similar argument in Stanley , where the appellant did not raise a constitutional challenge in the trial court. See id . at ¶ 14-15. {¶28} Mr. Mizicko suggests that he could not have raised the issue be low because a trial court has no authority to mandate that a court of appea ls employ a particular standard of review. We acknowledge that issues concerning appe llate review were not implicated until after the trial court imposed Mr. Mizicko’s se ntences. However, Mr. Mizicko’s constitutional argument is not clear. {¶29} For instance, Mr. Mizicko does not challenge the constitutional ity of R.C. 2953.08(G)(2), which governs appellate review of felony sentenc es. Rather, he appears to disagree with other appellate courts’ explanation of the statutory standard of review. {¶30} In addition, Mr. Mizicko makes only general references to “due process” rights. He engages in no constitutional analysis and cites no relevant authority. See App.R. 16(A)(7). {¶31} The Supreme Court of Ohio has stated that courts should avoid a nswering constitutional questions unless it is absolutely necessary to d o so. See State v. Talty , 103 Ohio St.3d 177, 814 N.E.2d 1201, 2004-Ohio-4888, ¶ 9. Sinc e Mr. Mizicko has failed to present a coherent constitutional argument, we decline to ad dress it. {¶32} Mr. Mizicko’s sole assignment of error is without merit. {¶33} For the foregoing reasons, the judgment the Trumbull County Cou rt of Common Pleas is affirmed.

MATT LYNCH, J., JOHN J. EKLUND, J.,

concur.