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State v. Kumpfel

Court of Appeals of Ohio, Second District

August 2, 2013

STATE OF OHIO Plaintiff-Appellee
v.
GREG KUMPFEL Defendant-Appellant

Criminal appeal from Common Pleas Court T.C. NO. 10CR856

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

JAMES D. MARSHALL, Atty. Reg. No. 0012648, Public Defender Office, Attorney for Defendant-Appellant.

OPINION

DONOVAN, J.

{¶ 1} Defendant-appellant Greg Kumpfel appeals his sentence for one count of failure to stop after an accident, in violation of R.C. 4549.02(A), a felony of the third degree. The instant case arose on September 14, 2010, when Kumpfel struck and killed Robin Shawver as she walked across Lake Road in Clark County. The license plate from Kumpfel's vehicle was found at the scene, and after obtaining a search warrant, investigating officers located Kumpfel's vehicle in a wooded area behind his home.

{¶ 2} On December 20, 2010, Kumpfel was indicted on one count of failure to stop after an accident and one count of tampering with evidence, and he pled not guilty. On May 26, 2011, Kumpfel withdrew his pleas and entered a plea of no contest to failure to stop after an accident. The tampering charge was dismissed. The trial court sentenced Kumpfel to five years in prison and suspended his driver's license for 15 years.

{¶ 3} Kumpfel filed a timely notice of appeal from his conviction and sentence on June 20, 2011. In an opinion issued on May 4, 2012, we affirmed Kumpfel's conviction and sentence. Kumpfel subsequently filed an application to reopen his appeal on August 2, 2012, which we denied on October 15, 2012. On October 24, 2012, Kumpfel filed a motion for reconsideration of his application to reopen. We granted Kumpfel's motion for reconsideration in a decision and entry issued on December 19, 2012. In so doing, we reopened Kumpfel's direct appeal but "limited [it] to the issue of ineffective assistance of appellate counsel by virtue of counsel's failure to thoroughly brief and argue that Kumpfel's sentence was contrary to law and an abuse of discretion."

{¶ 4} Because they are interrelated, Kumpfel's first and second assignments of error will be discussed together as follows:

{¶ 5} "THE TRIAL COURT'S IMPOSITION OF THE MAXIMUM FIVE YEAR PRISON SENTENCE WAS CONTRARY TO LAW."

{¶ 6} "THE TRIAL COURT'S IMPOSITION OF THE MAXIMUM FIVE YEAR PRISON SENTENCE WAS AN ABUSE OF DISCRETION."

{¶ 7} In his first assignment, Kumpfel contends that the trial court's imposition of the maximum five-year prison sentence was contrary to law because pursuant to R.C. 2929.14(C), the trial court was required to make a finding that his conduct was the worst form of the offense or that he posed the greatest likelihood of committing future crimes. In his second assignment, Kumpfel argues that the trial court abused its discretion by sentencing him to the maximum five-year prison sentence because the sentence was excessive, the court did not consider the sentencing factors under R.C. 2929.14(C), and the trial court failed to state on the record what seriousness and recidivism factors it considered when it imposed the sentence.

{¶ 8} "The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender." R.C. 2929.11(A).

{¶ 9} "[I]n State v. Barker, Montgomery App. No. 22779, 2009-Ohio-3511, at ¶ 36-37, we stated:

"'The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum, consecutive, or more than the minimum sentences. State v. Foster, 109 Ohio St.3d 1, * * * 2006-Ohio-856, at paragraph 7 of the syllabus. Nevertheless, in exercising its discretion the trial court must consider the statutory policies that apply to every felony offense, including those set out in R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, * * * 2006-Ohio-855, at ¶ 37.'" State v. Ulrich, 2d Dist. Montgomery No. 23737, 2011-Ohio-758, at ΒΆ 20-21. "[E]ven if there is no specific mention of [R.C. 2929.11 and ...

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