Appeals from Auglaize County Common Pleas Court Trial Court Nos. 2011-CR-91 and 2012-CR-157
Gerald F. Siesel for Appellant
Edwin A. Pierce and R. Andrew Augsburger for Appellee
(¶1} Defendant-appellant Jordan M. Helmstetter ("Helmstetter") brings these appeals from the judgments of the Court of Common Pleas of Auglaize County sentencing him to an aggregate prison term of 78 months for convictions in case numbers 2011-CR-91 and 2012-CR-157. Helmstetter argues that the trial court did not properly consider and apply the sentencing guidelines set forth in R.C. 2929.11 and R.C. 2929.12. For the reasons set forth below, the judgment in appellate case number 2-13-08 is affirmed. The appeal taken in case number 2-13-07 is dismissed.
(¶2} On April 29, 2011, the Auglaize County Grand Jury indicted Helmstetter as follows: Count 1 - Drug Trafficking in violation of R.C. 2925.03(A)(1)(C)(1)(a), a felony of the fourth degree; Count 2 - Trafficking in Marijuana in violation of R.C. 2925.03(A)(1)(C)(3)(a), a felony of the fifth degree; Count 3 - Drug Trafficking in violation of R.C. 2925.03(A)(1)(C)(1)(b), a felony of the fourth degree; and Counts 4 and 5 - Trafficking in Heroin in violation of R.C. 2925.03(A)(1)(C)(6)(a), a felony of the fifth degree. The case was assigned number 2011-CR-91. Helmstetter entered pleas of not guilty to all counts on May 12, 2011. On June 8, 2011, Helmstetter and the State entered into a plea agreement whereby Helmstetter would enter a plea of guilty to counts 1, 4, and 5. The State then agreed to dismiss counts 2 and 3 of the indictment. The trial court accepted the plea agreement. A sentencing hearing was held on August 2, 2011, and the trial court placed Helmstetter on community control for a period of five years. The terms of community control included the following restrictions.
a. During the period of the sanctions, the Defendant must abide by the law
b. The Defendant shall neither consume nor possess any alcoholic beverages or substances of abuse or drug paraphernalia;
c. The Defendant shall not use, purchase, have under my (sic) control, or be in the presence (sic) any mind altering substances
d. The Defendant shall not visit or be present on any premises where alcohol is served or substances of abuse or drug paraphernalia are present;
j. The Defendant shall not have any contact or association directly or indirectly with any drug users or drug traffickers.
The trial court also notified Helmstetter that if he violated the terms of the community control, he could be ordered to serve prison terms of eighteen months on Count I, twelve months on Count IV, and twelve months on Count V with all sentences to be served consecutively for a total prison term of forty-two months.
(¶3} On July 17, 2012, the State filed a motion for a hearing on a violation of community control sanctions. The supporting affidavit alleged that Helmstetter had possessed heroin and had possessed digital scales, thus violating the terms of his community control. As a result of the above allegations, on September 7, 2012, the Auglaize County Grand Jury indicted Helmstetter on one count of possession of heroin in violation of R.C. 2925.11(A)(C)(6)(c), a felony of the third degree. The new indictment was assigned case number 2012-CR-157. On January 23, 2012, Helmstetter changed his not guilty plea on the indictment to one of guilty in exchange for a jointly recommended sentence of 24 months in prison in case number 2012-CR-157. Helmstetter also admitted to the community control violation in case number 2011-CR-91. In case number 2011-CR-91, the trial court reimposed the sentence previously ordered which required Helmstetter to serve a total prison term of 42 months. In case number 2012-CR-157, the trial court chose to not follow the joint recommendation of Helmstetter and the State and ordered Helmstetter to serve a prison term of thirty-six months. This sentence was ordered to be served consecutively to the one in case number 2011-CR-91 for a total prison term of seventy-eight months. Helmstetter appeals from this judgment and raises the following assignment of error.
The trial court's sentence of [Helmstetter] to a maximum sentence of thirty-six months consecutive to a reimposed community control violation sentence of forty-two months was contrary to law and further constituted an abuse of discretion by failing to properly consider and apply the sentencing guidelines set forth in [R.C. 2929.11 and R.C. 2929.12].
(¶4} This court initially notes that the assignment of error only applies to the sentence set forth in trial court case number 2012-CR-157, which was assigned appellate court case number 2-13-08. Appellate Rule 16 requires all briefs to contain an assignment of error and an argument with respect to the assignment of error. App.R. 16(A). The failure to assign an error or to argue it as required by Appellate Rule 16 may result in the appellate court disregarding the argument and dismissing the appeal. State v. Chilcutt, 3d Dist. Crawford Nos. 3-03-16, 3-03-17, 2003-Ohio-6705. Since no assignment of error was made and no argument was presented in appellate case number 2-13-07, that appeal is dismissed.
(¶5} Helmstetter claims that the trial court's imposition of the maximum sentence is contrary to law and an ...