Court of Appeals of Ohio, Sixth District, Sandusky
Court Nos. 16 CR 58 16 CR 91
Timothy F. Braun, Sandusky County Prosecuting Attorney, for
Oswald, for appellant.
DECISION AND JUDGMENT
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:
of Error No. 1. THE RECORD CLEARLY AND CONVINCINGLY
FAILS TO SUPPORT THE IMPOSITION OF THE MAXIMUM SENTENCES ON
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.
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 ...