[Cite as State v. Wickham,
2019-Ohio-4850.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JOHN E. WICKHAM, JR. : Case No. 19-COA-013
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 18-CRI-119
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 26, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
VICTOR R. PEREZ BRIAN A. SMITH
110 Cottage Street 755 White Pond Drive
Ashland, OH 44805 Suite 403
Akron, OH 44320
Ashland County, Case No. 19-COA-013 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, John E. Wickham, Jr., appeals his April 9, 2019
sentence by the Court of Common Pleas of Ashland County, Ohio. Plaintiff-Appellee is
the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 13, 2018, the Ashland County Grand Jury indicted appellant on one
count of aggravated arson in violation of R.C. 2909.02, one count of arson in violation of
R.C. 2909.03, one count of breaking and entering in violation of R.C. 2911.13, and one
count of petty theft in violation of R.C. 2913.02.
{¶ 3} On March 1, 2019, appellant pled guilty to the aggravated arson count. The
remaining counts were dismissed. By judgment entry filed April 9, 2019, the trial court
sentenced appellant to six years in prison and ordered him to pay over $9,000 in
restitution.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "THE TRIAL COURT'S SENTENCE OF APPELLANT WAS NOT
SUPPORTED BY THE RECORD."
I
{¶ 6} In his sole assignment of error, appellant claims his sentence was not
supported by the record. We disagree.
{¶ 7} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231,
Ashland County, Case No. 19-COA-013 3
¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004,
2015-Ohio-4049, ¶ 31. R.C.
2953.08(G)(2) states we may either increase, reduce, modify, or vacate a sentence and
remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
{¶ 8} "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." Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 9} " 'An appellate court will not find a sentence clearly and convincingly
contrary to law where the trial court considers the principles and purposes of R.C.
2929.11, as well as the factors listed in R.C. 2929.12, properly imposes post-release
control, and sentences the defendant within the permissible statutory range.' " State v.
Garrison, 5th Dist. Muskingum No. CT2017-0018, 2018-Ohio-463, ¶ 47, quoting State v.
Ahlers, 12th Dist. Butler No. CA2015-06–100,
2016-Ohio-2890, ¶ 8.
{¶ 10} There is no dispute that the six year sentence is within the statutory range
for a felony in the first degree. R.C. 2929.14(A)(1). Appellant argues the trial court failed
to consider the principles and purposes of felony sentencing under R.C. 2929.11 and the
seriousness and recidivism factors under R.C. 2929.12.
{¶ 11} R.C. 2929.11 governs the overriding purposes of felony sentencing.
Subsection (A) states the following:
Ashland County, Case No. 19-COA-013 4
A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of felony
sentencing are to protect the public from future crime by the offender and
others and to punish the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. To achieve
those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of the
offense, the public, or both.
{¶ 12} R.C. 2929.12 sets forth the seriousness and recidivism factors for a trial
court to consider in determining the most effective way to comply with the purposes and
principles of sentencing pursuant to R.C. 2929.11. The statute provides a long list of
factors, including any other relevant factors, a trial court must consider when determining
the seriousness of the offense and the likelihood that the offender will commit future
offenses. Pertinent to this case are the following two factors:
(1) The physical or mental injury suffered by the victim of the offense
due to the conduct of the offender was exacerbated because of the physical
or mental condition or age of the victim.
Ashland County, Case No. 19-COA-013 5
(2) The victim of the offense suffered serious physical, psychological,
or economic harm as a result of the offense.
{¶ 13} In considering the R.C. 2929.11 and 2929.12 factors, "[t]he trial court has
no obligation to state reasons to support its findings. Nor is it required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry." State v. Wilson, 5th Dist.
Richland No. 17CA31, 2018-Ohio-396, ¶ 61; State v. Bell, 5th Dist. Muskingum No.
CT2016-0050,
2017-Ohio-2621, ¶ 40.
{¶ 14} As this court stated in State v. Moyer, 5th Dist. Licking No. 18 CA 0065,
2019-Ohio-0065,
2019-Ohio-1187, ¶ 26:
There is no requirement in R.C. § 2929.12 that the trial court states
on the record that it has considered the statutory criteria concerning
seriousness and recidivism or even discussed them. State v. Polick, 101
Ohio App.3d 428, 431 (4th Dist. 1995); State v. Gant, 7th Dist. No. 04 MA
252, 2006-Ohio-1469, at ¶ 60 (nothing in R.C. § 2929.12 or the decisions
of the Ohio Supreme Court imposes any duty on the trial court to set forth
its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166,
586 N.E.2d 94
(1992); State v. Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶ 10
(trial court was not required to address each R.C. § 2929.12 factor
individually and make a finding as to whether it was applicable in this case),
State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶ 19 ("... R.C.
Ashland County, Case No. 19-COA-013 6
2929.12 does not require specific language or specific findings on the
record in order to show that the trial court considered the applicable
seriousness and recidivism factors"). (Citations omitted.)
{¶ 15} Appellant claims he met three factors under R.C. 2929.12 making recidivism
less likely: 1) he was not on probation, parole, or post-release control at the time of the
offense; 2) he did not have any prior felony convictions; and 3) he showed genuine
remorse for his actions.
{¶ 16} On March 1, 2019, appellant pled guilty to one count of aggravated arson.
During the April 8, 2019 sentencing hearing, the trial court heard how appellant set fire to
his girlfriend's parents' house with occupants inside including an eight year old child. T.
at 6. As a result of the fire, the child is angry, terrified, has nightmares, and is undergoing
counseling. T. at 8, 12-13. The trial court also heard how appellant verbally and
physically abused his girlfriend and threatened her on several occasions. T. at 9-10.
Defense counsel indicated appellant did not have a felony record, but "has had some
scrapes with the law in terms of misdemeanors and mostly low level drug situations." T.
at 4.
{¶ 17} In reviewing the presentence investigation report, the trial court noted
appellant's risk assessment score was in the moderate range. T. at 15-16. The trial court
then stated the following (T. at 16):
And he has no prior felony history, and I understand the nature of
those offenses are very serious, and I heard the description about the
Ashland County, Case No. 19-COA-013 7
physical abuse as well as the threats which make me believe that this
individual would be capable of coming back and trying to follow through,
and his intentions when setting the fires was to cause physical harm to the
individuals, if not psychological harm ….
…
Nonetheless, again, I am finding that it's serious enough that it
should be more than a minimum sentence and on the higher side of things.
{¶ 18} In its judgment entry filed April 9, 2019, the trial court indicated it reviewed
the presentence investigation report, and noted it considered "the purposes of felony
sentencing as set forth in Ohio Revised Code Section 2929.11," and "fully considered the
provisions of O.R.C. Chapter 2929, the circumstances of the offense, the information
contained in the pre-sentence investigation and the information furnished by the parties
to this case." The trial court stated the following:
Based upon consideration of the purposes and principles of the
felony sentencing law, the statutory sentencing factors, and after weighing
the above findings, this Court finds that the Defendant is NOT amenable to
community control sanctions and that a prison sentence is consistent with
the purposes and principles of the felony sentencing law of Ohio and that
community control is not required.
Ashland County, Case No. 19-COA-013 8
{¶ 19} Upon review, we find the sentence imposed is not clearly and convincingly
contrary to law. The sentence is within the statutory range for a felony of the first degree,
and the trial court considered the R.C. 2929.11 and 2929.12 factors.
{¶ 20} The sole assignment of error is denied.
{¶ 21} The judgment of the Court of Common Pleas of Ashland County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/db
