[Cite as State v. Lehmkuhle, 2013-Ohio-2610.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-13-01
v.
ERIK R. LEHMKUHLE, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR 11-11-146
Judgment Affirmed
Date of Decision: June 24, 2013
APPEARANCES:
Gregory W. Unterbrink for Appellant
Eva J. Yarger for Appellee
Case No. 15-13-01
WILLAMOWSKI, J.
{¶1} Defendant-appellant Erik R. Lehmkuhle (“Lehmkuhle”) brings this
appeal from the judgment of the Court of Common Pleas of Van Wert County
finding him guilty of one count of gross sexual imposition. For the reasons set
forth below, the judgment is affirmed.
{¶2} On November 4, 2011, The Van Wert County Grand Jury indicted
Lehmkuhle on seven counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies
of the first degree, five counts of gross sexual imposition in violation of R.C.
2907.05(A)(4), felonies of the third degree, and one count of attempted rape in
violation of R.C. 2907.02(A)(1)(b) and R.C. 2923.02(A), a felony of the second
degree. Lehmkuhle entered pleas of not guilty to all charges. On June 21, 2012,
the State moved to dismiss seven counts of the indictment, leaving four counts of
rape, one count of gross sexual imposition, and one count of attempted rape. The
trial was then scheduled for November 5, 2012.
{¶3} On October 31, 2012, a change of plea hearing was held. Lehmkuhle
then entered an Alford Plea to one count of gross sexual imposition. The
remaining charges were dismissed. The trial court accepted the plea and found
Lehnkuhle guilty of gross sexual imposition. A sentencing hearing was held on
December 12, 2012. The trial court sentenced Lehmkuhle to serve forty-eight
months in prison. Lehmkuhle was given credit for 458 days of time served.
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Case No. 15-13-01
Lehmkuhle appeals from this judgment and raises the following assignments of
error.
First Assignment of Error
The trial court erred when imposing a forty-eight (48) month
sentence when the sentence was not supported by the record on
an Alford guilty plea.
Second Assignment of Error
The trial court erred in not determining whether the State had
sufficient evidence to convict after new evidence in the form of a
retraction of victim’s accusation was received by the court after
the acceptance of an Alford guilty plea.
{¶4} In the first assignment of error, Lehmkuhle claims that his sentence
was not supported by the record.
Trial courts have full discretion to impose any sentence with the
statutory range. State v. Saldana, 3d Dist. No. 12–12–09, 2013–
Ohio–1122, ¶ 20. * * * However, the trial court must still
consider the purposes of felony sentencing as set forth in R.C.
2929.11 and be guided by the sentencing factors set forth in R.C.
2929.12 and R.C. 2929.13 when determining the appropriate
sentence. Saldana at ¶ 20–21.
State v. Walton, 3d Dist. Nos. 16-12-13, 16-12-14, 2013-Ohio-2147, ¶4. Here,
Lehmkuhle was convicted of a felony of the third degree. The range of sentences
for the offense was twelve, eighteen, twenty-four, thirty, thirty-six, forty-two,
forty-eight, fifty-four, or sixty months. R.C. 2929.14(A)(3). The trial court
indicated that it considered the sentencing factors pertaining to the seriousness of
the offense and the likelihood of recidivism along with all other factors as set forth
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Case No. 15-13-01
in R.C. 2929.12 and 2929.13(B). Tr. 53. In addition, there was a pre-sentence
investigation done, a letter written by the victim in this case, and a letter written by
the victim’s guardian which was also reviewed by the trial court. The trial court
acknowledged that while the victim’s letter did not recant the allegations, it did
raise questions about what had really happened. Tr. 53. The sentence
recommendation in the PSI was for a term of 54 months. The trial court sentenced
Lehmkuhle to a prison term of 48 months. This is within the statutory permissible
sentences. The trial court considered all of the statutory factors and considered the
information in the PSI as well as the letters. Thus, the trial court did not err in
imposing the sentence it chose. The first assignment of error is overruled.
{¶5} In the second assignment of error, Lehmkuhle alleges that the trial
court erred in not reviewing the acceptance of the Alford plea after receiving the
letter from the victim. Initially, this court notes that Lehmkuhle never asked to
withdraw his plea. In addition, Lehmkuhle never even suggested to the court that
the facts supporting the plea should be reviewed a second time. A review of the
record shows that the victim did write a letter to the court stating that she believed
Lehmkuhle had been punished enough and that she wished to see him again. A
second letter was written by the victim’s guardian. This letter called into question
whether the alleged incidents ever occurred. However, the guardian was merely
speculating based upon her interactions with the victim and could not say that the
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Case No. 15-13-01
events did not occur, just that she was not sure the events occurred. The victim
herself, contrary to Lehmkuhle’s position, did not recant her accusations or state
that the events did not occur. Although the letters were sufficient to cause the trial
court to have second thoughts, they, alone, were insufficient to require the court,
as a matter of law, to reconsider the plea sua sponte. Thus, the trial court was
correct in proceeding to sentencing. The second assignment of error is overruled.
{¶6} The judgment of the Court of Common Pleas of Van Wert County is
affirmed.
Judgment Affirmed
SHAW, J., concurs.
PRESTON, P.J., concurs in Judgment Only.
/jlr
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