[Cite as State v. McFadden,
2017-Ohio-6905.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-28
:
v. : Trial Court Case No. 2016-CR-187
:
RICHARD MCFADDEN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 21st day of July, 2017.
...........
JANE NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office,
Appellate Division, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
J. ALLEN WILMES, Atty. Reg. No. 0012093, 7821 N. Dixie Drive, Dayton, Ohio, 45414
Attorney for Defendant-Appellant
.............
HALL, P.J.
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{¶ 1} Richard McFadden appeals from his conviction and sentence on two counts
of felony domestic violence, one count of obstructing official business, and one count of
resisting arrest.
{¶ 2} In his sole assignment of error, McFadden challenges his aggregate four-
year prison sentence, arguing that it is an abuse of discretion and that it is unsupported
by the record.
{¶ 3} The State obtained an eight-count indictment against McFadden in August
2016, charging him with one count of felonious assault (F2), three counts of domestic
violence (F4), one count of obstructing official business (F5), two counts of aggravated
menacing (M1), and one count of resisting arrest (M2). The domestic-violence charges
involved acts of physical harm against his wife and his mother in law. The felonious
assault charge involved cutting his mother in law’s hand with a knife. The resisting arrest
charge involved McFadden’s conduct when police arrested him for the foregoing
incidents. The aggravated menacing charges involved McFadden threatening to kill two
arresting police officers. The obstructing official business charge involved him resisting
an officer who was attempting to facilitate a video arraignment.
{¶ 4} McFadden ultimately pled guilty to two fourth-degree felony counts of
domestic violence (one involving his wife and one involving his mother in law), one fifth-
degree felony count of obstructing official business, and one count of resisting arrest, a
second-degree misdemeanor. In exchange for the plea, the State agreed to dismiss the
remaining four charges and to recommend a PSI report. The parties also agreed that
McFadden would pay $479 in restitution. The trial court accepted the guilty pleas, and the
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matter later proceeded to sentencing. During the sentencing hearing, the trial court
indicated that it had reviewed the PSI report and supporting materials. The trial court also
heard statements from counsel and from McFadden. It then imposed an 18-month prison
sentence for each domestic-violence conviction, a 12-month prison sentence for
obstructing official business, and a 60-day sentence for resisting arrest. The trial court
ordered the domestic-violence sentences and the obstructing-official-business sentence
to be served consecutively, resulting in an aggregate 48-month prison term. The trial court
made the 60-day misdemeanor sentence concurrent. It also imposed the agreed-upon
restitution.
{¶ 5} McFadden’s assignment of error states: “The trial court committed prejudicial
error in considering inaccurate ‘evidence’ and, thus, erroneously concluded that appellant
was likely to commit future crimes.” In support, he argues that the trial court “seemed
almost glibly willing to interpret every act [he committed] in an exaggerated and
deleterious fashion[.]” (Appellant’s brief at 7). He contends the trial court “flatly ignored” a
finding in the PSI report that his overall risk assessment was “low.” (Id.). He asserts that
his prior criminal record consisted of misdemeanors and that he never had been to prison.
He cites the trial court’s finding that he “believed” his wife was pregnant when, in fact, she
was not. (Id.). In addition, he takes issue with the trial court’s characterization of his
tussling with a police officer as an assault. Finally, he claims the trial court treated his lack
of prior military service as a factor making recidivism more likely and gave it substantial
weight. For the foregoing reasons, McFadden maintains that his aggregate 48-month
prison term is an abuse of discretion and is unsupported by the record.
{¶ 6} Upon review, we find McFadden’s argument to be unpersuasive. As a
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threshold matter, we do not review a trial court’s sentence for an abuse of discretion.
State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231, ¶ 10. Rather,
“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.” Id. at ¶ 23. With regard to consecutive sentences,
an appellant must demonstrate by clear and convincing evidence that the record does not
support the findings required by R.C. 2929.14(C)(4). When such findings are not required,
an appellant still must demonstrate by clear and convincing evidence that the record does
not support the sentence. Id.
{¶ 7} In the present case, McFadden’s individual sentences are within the
applicable statutory range, and the trial court indicated that it had considered the statutory
principles and purposes of sentencing as well as the seriousness and recidivism factors
before imposing them. Therefore, the individual sentences are not contrary to law. State
v. Cochran, 2d Dist. Clark No. 2016-CA-33, 2017-Ohio-217, ¶ 9-10 (recognizing that
maximum sentences are not contrary to law when they are within the authorized range
and the trial court considered the principles and purposes of sentencing and the
seriousness and recidivism factors). The trial court’s imposition of consecutive sentences
also is not contrary to law because the trial court made the findings required by R.C.
2929.14(C)(4) before ordering consecutive service. State v. Smith, 2d Dist. Champaign
No. 2015-CA-25,
2016-Ohio-3483, ¶ 13-15 (noting that consecutive sentences are not
contrary to law when a trial court makes the statutorily mandated findings).
{¶ 8} The only remaining question is whether McFadden has demonstrated by
clear and convincing evidence that the record fails to support his individual sentences or
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the trial court’s imposition of consecutive sentences. With regard to the individual
sentences, no particular findings were required. The trial court simply was obligated to
consider the principles and purposes of sentencing under R.C. 2929.11 and the
seriousness and recidivism factors under R.C. 2929.12. The trial court stated that it had
done so. (Sentencing Tr. at 19). Although not required, the trial court also expressly
discussed the seriousness and recidivism factors as follows:
With regard to seriousness factors, the Court finds that the
Defendant’s violent conduct, or admitted violent conduct, involve four
separate victims. Two of whom were family or household members and two
of whom were members of law enforcement. The Defendant was told prior
to the assault of the first domestic violence victim that the first domestic
violence victim was four weeks pregnant at the time of the offense. This
victim was choked and punched in the stomach four times. The same victim
was subsequently physically assaulted by the Defendant again after she
was able to initially remove herself from the household and then escorted
back by a neighbor.
The second domestic violence victim was physically assaulted by the
Defendant’s use of a knife against her resulting in defensive wounds to
three of her fingers. Court finds that the Defendant assaulted the second
domestic violence victim after forcefully entering her home and damaging
her front door and door frame. The Defendant’s relationship with the victims
facilitated the offense.
The Defendant also assaulted a video arraignment jail officer during
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an official court proceeding. And the Defendant was on probation for
domestic violence when he committed multiple acts of domestic violence in
the case at bar. Court also finds that the offense involved was domestic
violence. And that the Defendant committed the offense in the vicinity of one
or more children that are not victims of the offense. And the Defendant or
the victim of the offense was the parent of one or more of those children.
With regard to less serious factors, the Court finds none. Court
concludes that factors establishing Defendant’s conduct is more serious
outweigh factors establishing Defendant’s conduct is less serious. The
Court rejects the notion that the victim induced or facilitated the offense.
And the Court finds as non-credible the Defendant’s explanation for the
origin of the incident given the collaborating evidence that was also
presented in the case.
With regard to recidivism and more likely to commit future crimes,
the Court finds that Defendant was previously adjudicated a delinquent
child, has a history of criminal convictions, has not been rehabilitated to a
satisfactory degree, has not responded favorably to sanctions previously
imposed, the Defendant was on probation for domestic violence when he
committed multiple acts of domestic violence with different or family—with
different, family, or household victims, and the Defendant shows no genuine
remorse for the offense.
With regard to less likely to commit future crimes, the Court finds that
no factors exist. Court concludes that factors establishing Defendant’s
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recidivism more likely outweigh factors establishing recidivism is less likely.
…
(Id. at 19-21).
{¶ 9} The trial court also made the following findings under R.C. 2929.13(B), which
authorizes prison terms for certain fourth and fifth-degree felonies under specified
circumstances:
Court also makes the 2929.13(B)(1)(b) findings that in committing
the offense the Defendant attempted to cause or made an actual threat of
physical harm to a person with a deadly weapon. In committing the offense
the Defendant attempted to cause or made an actual threat of physical harm
to a person. And the Defendant was previously convicted of an offense that
caused physical harm to a person. The Defendant committed the offense
while on probation for a prior offense. …
(Sentencing Tr. at 21-22).
{¶ 10} On appeal, McFadden contends the trial court considered “inaccurate
‘evidence.’ ” He has not identified any particular inaccuracies, however, and the record
supports the foregoing findings.1 McFadden also claims the trial court “flatly ignored” his
low risk-assessment score. But the trial court did not ignore the score. It recognized that
“Defendant’s Ohio Risk Assessment Score is 10, which is considered low.” (Sentencing
Tr. at 18). It simply concluded based on all of the evidence that the statutory seriousness
1 The only potential inaccuracy we have found involves the trial court’s statement that
McFadden “was previously adjudicated a delinquent child … .” (Sentencing Tr. at 21).
The PSI report does not reflect any juvenile adjudications. (See PSI Report at 7).
McFadden has not mentioned this potential inaccuracy, however, or raised it as an
issue on appeal.
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and recidivism factors weighed against McFadden. We have recognized that a trial court
is not required to accept risk-assessment recommendations in a PSI report. State v. Bray,
2d Dist. Clark No. 2016-CA-22, 2017-Ohio-118, ¶ 33. In addition, the PSI report here
acknowledged that the risk-assessment tool depends on a defendant’s candor for
accuracy. (PSI Report at 9). McFadden’s score depended in part on his responses to
numerous questions, some of which were subjective opinions. For example, the risk-
assessment tool scored McFadden favorably for agreeing that he expresses concern
about others, stating that he does not feel a lack of control over events, saying that he
sees a problem with telling lies, and stating that he walks away from fights. The veracity
of these responses is for the trial court to consider given McFadden stomach-punching
his wife (who he thought was pregnant), cutting his mother in law with a knife, threatening
to kill the arresting officers, and tussling with another officer in jail. McFadden also
assaulted his wife a second time after the first incident ended, and he was on probation
for domestic violence at the time. McFadden admitted in a letter to the court that he needs
“to get help with [his] anger.” (Court’s Exhibit A to PSI Report). McFadden’s attorney
additionally acknowledged that he “does have to have some rage counseling.”
(Sentencing Tr. at 8). The trial court also found that McFadden’s version of events was
“not credible,” suggesting that McFadden was lying. The record supports the trial court’s
finding that McFadden was not credible. He attributed his behavior in part to his wife
secretly drugging him. He also claimed his wife and his mother in law had instigated the
incidents, that they had hit him first, and that his mother in law first had attacked him with
a knife. The trial court certainly had the discretion to disbelieve these statements.
{¶ 11} McFadden’s dispute about whether he “assaulted” the video-arraignment
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officer or “wrestled” with him is, at least for present purposes, nothing more than
semantics. The trial court did not find that McFadden’s actions met the legal definition of
criminal assault. (Sentencing Tr. at 4). He pled guilty to obstructing official business based
on the incident, which the record reflects involved McFadden cursing and then becoming
“combative and engaged in active resistance against Sergeant Wiskirchen’s attempts to
remove McFadden to a holding cell.” (PSI Report at 6). The sergeant injured his shoulder
during the incident, which was described as a “struggle” to subdue McFadden’s “turbulent
behavior.” (Id.).
{¶ 12} McFadden also criticizes the trial court for improperly treating his lack of
prior military service as a factor making recidivism more likely and for giving it substantial
weight. The record does not support this claim. The trial court did state that it had
“considered” McFadden’s lack of military service. (Sentencing Tr. at 19, 21). The trial
court made this statement, however, in apparent recognition of R.C. 2929.12(F), which
obligates a sentencing court to “consider the offender’s military service record and
whether the offender has an emotional, mental, or physical condition that is traceable to
the offender’s service in the armed forces of the United States and that was a contributing
factor in the offender’s commission of the offense or offenses.” Nothing in the record
suggests that the trial court treated McFadden’s lack of military service as a factor making
recidivism more likely.
{¶ 13} Finally, McFadden points out that his prior criminal record consisted of
misdemeanors and that he never had been to prison. Although he is correct, the trial court
recognized these facts and considered them along with the fact that he was on probation
for domestic violence against yet another woman when he committed the acts of domestic
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violence at issue here, which involved, among other things, stomach-punching his
spouse, who he believed was pregnant, and cutting his mother in law with a knife after
kicking in her front door. In fashioning an appropriate sentence, the trial court was entitled
to consider the fact that his act of using a knife against his mother in law would have
supported a felonious-assault conviction. (Sentencing Tr. at 18, 22, 29).2 The trial court
also was entitled to consider the other information it discussed in its analysis of the
statutory seriousness and recidivism factors. After evaluating the record as a whole, we
are unconvinced that McFadden has shown by clear and convincing evidence that the
record fails to support his individual sentences.
{¶ 14} We reach the same conclusion with regard to the trial court’s consecutive-
sentence findings. McFadden has not established that the record clearly and convincingly
does not support those findings under R.C. 2929.14(C)(4), which permits consecutive
prison terms
if the court finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public, and if the court
also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
2 The trial court initially stated that McFadden’s act of breaking into his mother in law’s
home also was aggravated burglary. It corrected itself, however, upon being advised
that McFadden was residing with her. (Sentencing Tr. at 18, 22, 29).
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Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 15} Here the trial court made the following findings:
In imposing consecutive sentences, the Court finds that consecutive
sentencing is necessary to protect the public from future crime or to punish
the Defendant. Consecutive sentences are not disproportionate to the
seriousness of the Defendant’s conduct and the danger he poses to the
public. The Court also finds that at least two of the multiple offenses were
committed as part of one or more courses of conduct. And the harm caused
by two or more of the multiple offenses was so great or unusual that no
single prison term for any of the offenses committed, as part of any of the
courses of conduct, adequately reflects the seriousness of the Defendant’s
conduct.
Court specifically finds that during the domestic violence incidents
the Defendant punched who he thought was a pregnant victim in the
stomach. The Defendant busted into a residence after being denied
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permission to enter and assaulted the occupant resident with a knife. And
the Defendant was on probation for domestic violence involve one of the
same—I’m sorry. During the domestic violence incident the Defendant was
already on probation for domestic violence. And the Defendant assaulted a
law enforcement officer during an official court proceeding. Court also finds
that the Defendant’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the Defendant.
(Sentencing Tr. at 23-24).
{¶ 16} On appeal, McFadden does not specifically address the statutory findings
under R.C. 2929.14(C)(4). The import of his argument, however, is that his history of
criminal conduct does not indicate a likelihood of recidivism and, apparently, that
consecutive sentences are not necessary to protect the public from future crime.
{¶ 17} Upon review, we do not find by clear and convincing evidence that the
record fails to support the trial court’s consecutive-sentence findings. The trial court
reasonably concluded that consecutive service was necessary to protect the public from
future crime or to punish McFadden and that consecutive sentences were not
disproportionate to the seriousness of his conduct and to the danger he poses to the
public. Once again, the conduct at issue involved, among other things, McFadden
stomach-punching his spouse, who he believed was pregnant, and cutting his mother in
law with a knife after kicking in her front door. At the time of these offenses, McFadden
was on probation for domestic violence against another person. He also resisted arrest,
threatened to kill the arresting officers, and later scuffled with an officer at the jail, resulting
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in an injury to the officer. In light of this conduct and McFadden’s indisputable impulse-
control and anger issues, the record does not clearly and convincingly fail to support the
trial court’s findings about consecutive sentences (1) being necessary to protect the public
from future crime or to punish McFadden and (2) not being disproportionate to the
seriousness of his conduct and the danger he poses to the public.
{¶ 18} As for the additional finding required under R.C. 2929.14(C)(4)(a), (b), or
(c), the trial court found subsections (b) and (c) applicable. With regard to subsection (b),
which involves the existence of harm so great or unusual that no single prison term would
suffice, McFadden makes no argument at all concerning the harm he caused and whether
it satisfies subsection (b). As set forth above, the harm at issue involved him punching his
wife, cutting his mother in law, and injuring an officer’s shoulder. The PSI report includes
a victim-impact statement from McFadden’s mother in law, who reported suffering
psychological harm, including anxiety and a need for counseling. Absent any specific
argument from McFadden, we do not find that the record clearly and convincingly fails to
support the trial court’s finding under R.C. 2929.14(C)(4)(b).
{¶ 19} We reach the same conclusion with regard to the trial court’s additional
finding under R.C. 2929.14(C)(4)(c), which involves a history of criminal conduct
demonstrating that consecutive sentences are necessary to protect the public from future
crime. Although McFadden had only a prior misdemeanor record and had not served
prison time, we find it significant that he committed the present acts of domestic violence
while still on probation for committing the same crime against someone else. One of the
acts of domestic violence at issue also was particularly serious. As the trial court noted,
his act of cutting his mother in law with a knife could have supported a felonious assault
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conviction. And the other act was particularly concerning, insofar as McFadden believed
his wife was pregnant when he repeatedly punched her in the stomach and, as far as he
knew, risked injury to his own unborn child. We note too that McFadden did have a prior
criminal record consisting of an aggravated menacing conviction in 2014, obstructing
justice and marijuana possession in 2016, the prior domestic violence in 2016, and a prior
probation violation. Particularly in light of the fact that McFadden committed the present
acts of domestic violence while on probation for the same offense, we do not find that the
record clearly and convincingly fails to support the trial court’s finding under R.C.
2929.14(C)(4)(c). In any event, that alternative finding was unnecessary in light of the trial
court’s additional finding under R.C. 2929.14(C)(4)(b).
{¶ 20} Based on the reasoning set forth above, we overrule McFadden’s
assignment of error and affirm the judgment of the Champaign County Common Pleas
Court.
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DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Jane Napier
J. Allen Wilmes
Hon. Nick A. Selvaggio
