State v. Auterbridge

[Cite as State v. Auterbridge, 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                        Court of Appeals No. E-18-006

        Appellee                                     Trial Court No. 2017-CR-339

v.

Charles Auterbridge, IV                              DECISION AND JUDGMENT

        Appellant                                    Decided: January 18, 2019

                                                 …

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Loretta Riddle, for appellant.

                                                 …

        SINGER, J.

        {¶ 1} We sua sponte place this appeal on the accelerated calendar pursuant to 6th

Dist.Loc.App.R. 12. See App.R. 11.1(E). Appellant, Charles Auterbridge, appeals the

January 12, 2018 judgment of the Erie County Court of Common Pleas, where he was
convicted of aggravated assault in violation of R.C. 2903.12(A)(1) and (C), a felony of

the fourth degree. Finding no error, we affirm.

                                   Assignment of Error

               I. THE TRIAL COURT’S IMPOSITION OF NEARLY THE

        MAXIMUM SENTENCE IS CONTRARY TO LAW WHEN THE

        COURT FAILS TO CONSIDER THE VICTIM’S STATEMENT.

                                       Background

        {¶ 2} On May 5, 2017, appellant was in an altercation and stabbed a man (“the

victim”) after being provoked. Appellant was indicted on September 13, 2017, on two

counts of felonious assault in violation of R.C. 2903.11(A)(1), felonies of the second

degree, and these counts carried violent offender specifications under R.C. 2941.149(A).

        {¶ 3} On October 23, 2017, a hearing was held at which appellant entered in a

guilty plea to the lesser included offense of aggravated assault in violation of R.C.

2903.12(A)(1), a felony of the fourth degree. Sentencing was scheduled for January 11,

2018.

        {¶ 4} At sentencing, the trial court confirmed that both parties reviewed the PSI

and had no objection to proceeding. The court further addressed whether the victim was

present, which he was not, and whether appellee wanted to proceed with sentencing

despite the victim’s account or a victim impact statement not being made part of the

record, which appellee indeed did.




2.
       {¶ 5} The court proceeded and imposed on appellant a 17-month prison term for

being found guilty of aggravated assault in violation of R.C. 2903.12(A)(1), a felony of

the fourth degree. The remaining counts against appellant were dismissed. The

judgment was journalized January 12, 2018. Appellant timely appeals.

                                          Analysis

       {¶ 6} In his sole assigned error, appellant asserts the trial court erred by sentencing

him without considering the impact his crime had on the victim in accordance with R.C.

2930.13 and 2930.14. Appellee contends appellant’s reliance on R.C. 2930.13 and

2930.14 is misplaced because the victim did not (and is not required to) submit an impact

statement.

       {¶ 7} We find R.C. 2930.13 and 2930.14 are permissive rules to be followed in the

instance where a victim elects to make a written or oral statement. See R.C. 2930.13

(code section entitled “Victim may make written or oral statement to the person preparing

impact statement.”); R.C. 2930.14 (code section entitled “Victim may make statement

prior to sentencing or disposition of juvenile; defendant’s or juvenile’s opportunity to

respond.”).

       {¶ 8} Here, there is no evidence the victim elected to make such a statement, and

we find that appellant’s sentence is not contrary to law.

       {¶ 9} Accordingly, appellant’s sole assigned error is not well-taken.




3.
                                       Conclusion

       {¶ 10} The January 12, 2018 judgment of the Erie County Court of Common Pleas

is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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