State v. Pitzer

[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, Hillsboro, 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 specification 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, which included a jointly

recommended total consecutive four and one-half years term of incarceration. However,

the trial court considered certain factors, rejected the jointly recommended sentence, and

determined that a total consecutive term of incarceration of seven years was appropriate.

Pitzer argues that the trial court improperly relied upon the arresting officer’s affidavit

when it increased the total prison term. We conclude that the trial 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 convincing evidence that the
Highland App. No. 19CA23 2

sentence is not supported by the record. We overrule Pitzer’s sole assignment of error

and affirm the trial court’s judgment.

I. PROCEDURAL HISTORY

{¶2} In September 2019, the Highland County Grand Jury indicted Pitzer 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 fourth-degree felony; one count

of domestic violence in violation of R.C. 2919.25(A), a first-degree 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 specification as provided in R.C.

2941.1417. Pitzer and the state entered into a plea agreement in which Pitzer pleaded

guilty to felonious assault, abduction, and having weapons under disability, and conceded

forfeiture. The state dismissed the counts of receiving stolen property, domestic violence,

and endangering children. The terms of the plea agreement included a jointly

recommended term of incarceration of two years for felonious assault, eighteen months

for abduction, and twelve months 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 number of

considerations made the felonious assault and weapon offenses particularly disturbing:

Pitzer’s five-year-old son was present during the incident, Pitzer used a weapon to

threaten members of the public who had telephoned 9-1-1, and there was physical harm

to Pitzer’s wife’s head and face. As a result, the trial court sentenced Pitzer to four years
Highland App. No. 19CA23 3

for felonious assault, rather than the jointly recommended two years, and eighteen

months for weapons under disability, rather than the recommended twelve months. The

trial court imposed the eighteen month jointly recommended sentence for abduction. As

jointly recommended, the trial court ran each sentence consecutively 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 sentence. He and

the state jointly recommended that the prison terms on each individual count run

consecutively and the trial court ran his sentences consecutively. Rather Pitzer

challenges the length of a nonmaximum sentence for the single counts of felonious

assault and weapons under disability because the trial court imposed longer terms than

jointly recommended on those two counts. Thus, this challenge requires 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 the 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 may increase, reduce,

modify, or vacate and remand a challenged felony sentence if the court clearly and

convincingly finds either:

(a) That the record does not support the sentencing court's findings 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 and

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 solely after consideration of

the factors in R.C. 2929.11 and 2929.12 under a standard that is 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 any 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 sentence.” Marcum at ¶

23; Butcher at ¶ 84.

{¶8} “Once the trial court considers R.C. 2929.11 and 2929.12, the burden is on

the defendant to demonstrate by clear and convincing evidence that 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 convincing evidence, that

the sentence is not supported by the record, that the sentencing statutes' procedure was
Highland App. No. 19CA23 5

not followed, or there was not a sufficient basis for the imposition 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 by clear and convincing

evidence either that the record does not support the trial court's findings or that the

sentence is otherwise contrary to law, these assignments of error are meritless”). “Clear

and convincing evidence is ‘that measure or degree of proof which 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 criminal cases, and which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought 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 Contrary to Law

{¶9} “ ‘[A] sentence is generally not contrary to law if the trial court 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[-]release 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 considered 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 weapons under disability, both

which are within the statutory range. See R.C. 2903.11(D)(1)(a) (except as otherwise
Highland App. No. 19CA23 6

provided, felonious assault is a second-degree felony); R.C. 2923.13(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-four, 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 presented” by the state. He also

argues that the seriousness and recidivism factors under R.C. 2929.12 do not support his

sentence. He contends that he had “a clean adult record,” the crime did not involve the

general public, and was not a crime likely to be committed again. In other words, Pitzer

disagrees with the trial court’s analysis and balancing of these factors and contends that

the court abused its discretion by taking into consideration information 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 every
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 purposes, the trial
court “shall consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender, 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 crimes
committed by similar offenders.” R.C. 2929.11(B). * * *

Second, R.C. 2929.12 specifically provides that in exercising its discretion,
a trial court must consider certain factors that make the offense more or less
serious and that indicate whether the offender is more or less likely to
Highland App. No. 19CA23 7

commit future offenses. * * * [A]n offender's conduct is considered less
serious when there are “substantial grounds to mitigate the offender's
conduct, although the grounds are not enough to constitute a defense.” R.C.
2929.12(C)(4). R.C. 2929.12(C) and (E) also permit a trial court to consider
“any other relevant factors” to determine that an offense is less 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 the seriousness and

recidivism factors under R.C. 2929.12. At the sentencing hearing, the trial court more

specifically found:

Well, Mr. Pitzer, this case is disturbing. I’m taking into consideration
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. But,
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 weapon appeared
to have been jammed, and it appeared to have been caused by a double-
feed, meaning that more likely it was caused by repeatedly trying to fire the
weapon. * * *
I also note that one of the people that called 9-1-1 was a witness 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 somebody like
that; so, there were people in the public that were involved.
And then this whole thing took place with your child being in the
room, or the house.
There were some efforts to harm your wife. The fact that she wasn’t
hurt badly isn’t the point. The point is that you were aggressive 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, not just to the
victim, but to the public in general, that no one prison term would adequately
reflect the seriousness of your conduct.
And, given the fact that you’ve had a previous conviction in Juvenile
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 in it differed from the

prosecutor’s statements made at the sentencing hearing and it included information about

criminal acts the state did not pursue. However, Pitzer cites no 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 authority for its argument.

{¶16} At the sentencing hearing, the trial court is permitted to take into

consideration defense counsel’s statements, defendant’s statement, 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 imposition 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 information presented at the

sentencing hearing. R.C. 2929.19(B)(1). The trial court may also take into account

evidence of other crimes, even though they were dismissed as part 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 have 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, including
crimes that never result in criminal charges being pursued, or criminal
charges that are dismissed as a result of a plea bargain, may be 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 report 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 factor 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.) to be
instructive: “[I]t is well established in Ohio law that the court may consider
information beyond that strictly related to the conviction offense. For
example, the statute governing the contents of a PSI report simply says,
‘[T]he officer making the report shall inquire into the circumstances of the
offense and the criminal record, social history, and present condition of the
defendant.’ R.C. 2951.03(A). The statutory directive no doubt results in the
sentencing court considering evidence that would be inadmissible 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 impose a “real offense”

sentence:

In their treatise, Griffin and Katz discuss the concept of “real offense
sentencing.” See Griffin & Katz, Ohio Felony Sentencing Law (2002 Ed.) at
545-46. There, Griffin and Katz state: “Notwithstanding that an offense has
been plea bargained to a lesser offense, pre-sentence reports are
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 inconsistent with
a plea bargain. * * * Notwithstanding the plea bargain the judge may
sentence the offender within the statutory parameters of the plea 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 can impose.”
Under the concept of “real offense sentencing” a defendant receives the
benefit of his plea when his sentence is within the statutory parameters of
Highland App. No. 19CA23 10

the pled offense. Therefore, sentencing courts may consider the real facts
behind a plea agreement when sentencing a defendant.

A defendant's plea to a lesser charge is not a statutory factor under the
felony sentencing guidelines. State v. Murphy, Meigs App. No. 00CA13,
2001-Ohio-2461. However, following a plea agreement, courts must look at
the totality of the circumstances when determining the seriousness 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 sentencing 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 account 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 (discussing “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 affidavit was entirely

proper and is the type of information a trial court considers when imposing a sentence.

We find no error or abuse of discretion.

{¶19} Although Pitzer disagrees with the trial court's analysis and its balancing of

the seriousness and recidivism factors in R.C. 2929.12, in imposing 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 forth in R.C. 2929.12, the trial

court has ‘the discretion to determine the weight to assign a particular 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 (“Although

appellant disagrees with the trial court's analysis and its balancing of the seriousness and

recidivism factors in R.C. 2929.12, it is ‘[t]he trial court [that], in imposing a sentence,

determines the weight afforded to any particular statutory factors, 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 sentencing 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 prison sentence

was clearly and convincingly not supported by the record. “Simply because the court did

not balance the factors in the manner appellant desires does not 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 clear 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. Therefore, 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 judgment 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 directing the HIGHLAND
COUNTY COURT OF COMMON PLEAS, to carry this judgment into execution.

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 upon 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 notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule 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 stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant 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 final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.