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State v. Auxter

Court of Appeals of Ohio, Sixth District, Sandusky

April 7, 2017

State of Ohio Appellee
v.
David A. Auxter, Jr. Appellant

         Trial Court Nos. 16 CR 58 16 CR 91

          Timothy F. Braun, Sandusky County Prosecuting Attorney, for appellee.

          Nathan Oswald, for appellant.

          DECISION AND JUDGMENT

          PIETRYKOWSKI, J.

         {¶ 1} Appellant, David A. Auxter, Jr., appeals from the May 13, 2016 judgments of the Sandusky County Court of Common Pleas imposed in two separate cases, which have been consolidated for purposes of appeal. In Sandusky County case No. 16 CR 58, appellant was convicted of unlawful sexual conduct with a minor, a violation of R.C. 2907.04(A), a felony of the fourth degree, and was sentenced to 18 months imprisonment. In Sandusky County case No. 16 CR 91, appellant was convicted of permitting drug abuse, a violation of R.C. 2925.13, a misdemeanor of the first degree, and sentenced to 180 days incarceration in the Sandusky County Jail. This latter sentence was ordered to be served concurrently with the sentence imposed in case No. 16 CR 58. For the reasons which follow, we affirm.

         {¶ 2} On appeal, appellant asserts the following assignments of error:

         Assignment of Error No. 1. THE RECORD CLEARLY AND CONVINCINGLY FAILS TO SUPPORT THE IMPOSITION OF THE MAXIMUM SENTENCES ON MR. AUXTER.

         Assignment of Error No. 2. THE TRIAL COURT ERRED BY NOTIFYING MY AUXTER IT COULD ORDER HIM TO PERFORM COMMUNITY SERVICE IF HE FAILS TO PAY THE COSTS OF HIS APPOINTED COUNSEL.

         {¶ 3} The state's summary at the plea hearing and the presentence investigation report presented the following underlying facts for the charges. On September 15, 2015, appellant and a 13-year-old boy were found unconscious in a vehicle and were revived by use of a drug which reverses the effects of opiates. Appellant denied having snorted heroin. Also found in the vehicle was Fentanyl, a Schedule II drug.

         {¶ 4} On December 9, 2015, appellant engaged in sexual contact with a 13-year-old minor. The child was reported missing after having left for school. She was eventually located with appellant, where her probation officer suggested she would most likely be found. The child first claimed appellant had sexually assaulted her and then recanted her allegations and claimed it was "consensual" sex, which appellant admitted.

         Maximum Sentence

         {¶ 5} In his first assignment of error, appellant argues that the record does not support imposition of the maximum sentence for each offense.

         {¶ 6} Pursuant to R.C. 2929.14, the maximum sentence for a felony of the fourth degree is a prison term of 18 months and pursuant to R.C. 2929.24(A)(1), the maximum sentence for a misdemeanor of the first degree is a jail term of no more than 180 days.

         {¶ 7} In sentencing, a trial court must bear in mind the overriding purposes of sentencing, which are "to protect the public from future crime by the offender and others and to punish the offender" and formulate a sentence which is reasonably calculated to achieve these purposes. R.C. 2929.11(A) and (B); 2929.21(A) and (B). Furthermore, the sentence must be "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B); 2929.21(B). The trial court must 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" in felony sentencing, R.C. 2929.11(A) and "the impact of the offense upon the victim and the need for ...


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