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State v. Kitzler

Court of Appeals of Ohio, Sixth District, Ottawa

December 13, 2019

State of Ohio Appellee
Daniel Kitzler, Jr. Appellant

          Trial Court Nos. 2018-CR-279, 2018-CR-265

          James J. VanEerten, Ottawa County Prosecuting Attorney, and Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.

          Brett A. Klimkowsky, for appellant.


          ZMUDA, J.

         I. Introduction

         {¶ 1} Appellant, Daniel Kitzler, appeals the judgment of the Ottawa County Court of Common Pleas, sentencing him to 34 months in prison after accepting his guilty plea to one count of aggravated assault and one count of inducing panic, and ordering him to serve the remaining 1, 089 days of his postrelease control consecutive to the 34-month prison sentence. Finding no error in the proceedings below, we affirm.

         A. Facts and Procedural Background

         {¶ 2} On October 25, 2018, appellant was indicted on one count of felonious assault in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a felony of the second degree, in case No. 2018-CR-265. This indictment stemmed from an incident that occurred on October 15, 2018, in which appellant threatened another individual with a box cutter or knife outside of a treatment facility in Port Clinton, Ohio, and was later arrested. While in jail awaiting further proceedings in case No. 2018-CR-265, appellant staged an attempted suicide by hanging himself so that he could be transferred to a psychiatric hospital. Consequently, appellant was indicted on November 14, 2018, and charged with one count of inducing panic in violation of R.C. 2917.31(A)(3) and (C)(3), a felony of the fourth degree, in case No. 2018-CR-279. Thereafter, appellant pled not guilty to each charge, and the matters proceeded through discovery and plea negotiations.

         {¶ 3} On January 10, 2019, appellant appeared before the trial court for a change of plea hearing. At the hearing, appellant entered a plea of guilty in case No. 2018-CR-265 to an amended charge of aggravated assault in violation of R.C. 2903.12(A)(2), a felony of the fourth degree, and also entered a plea of guilty in case No. 2018-CR-279 to the charge of inducing panic contained in the indictment.

         {¶ 4} Following a Crim.R. 11 colloquy, the trial court asked appellant to articulate the factual basis for the charges contained in the indictment. Regarding the assault charge, appellant indicated that he and another individual got into an argument because the individual "was upset that a female was trying to sleep with [him]." Appellant went on to note that "[a]n argument ensued and then we tried to fight and then everybody got in between us and nobody got touched. I went home and got arrested later that night." The state provided the additional fact that appellant threatened the individual with a knife.

         {¶ 5} Concerning the charge for inducing panic, appellant stated: "I hung myself here in the jail and they said that I was trying to go to the hospital with my girlfriend, but my girlfriend wasn't at the hospital. She was down in the padded cell." The state responded to appellant's articulation of the facts supporting the inducing panic charge by noting that "[s]ome of the other inmates knew he was going to [hang himself] and they called for assistance, but Mr. Kitzler, when the officers arrived, he was unconscious. He was seizing after they got him down and gasping for air and he did receive medical attention thereafter, so it was a dangerous situation, Your Honor." The court asked appellant if the state's version of the events was accurate, and appellant responded in the affirmative.

         {¶ 6} After the foregoing facts were recited, the trial court accepted appellant's plea and found him guilty of aggravated assault and inducing panic. The court ordered the preparation of a presentence investigation report and continued the matter for sentencing.

         {¶ 7} Appellant's sentencing hearing was held on February 25, 2019. Prior to imposing sentence, the trial court noted its consideration of the presentence investigation report, and heard arguments from the parties regarding sentencing. For its part, the state noted that appellant committed the offenses at issue in this case while he was on postrelease control related to a prior sex offense. The state emphasized appellant's prior criminal history and substance abuse issues in support of its request for consecutive sentences. Appellant's defense counsel informed the court that appellant had a heroin problem and also suffered from mental health issues. Defense counsel acknowledged that appellant had a difficult time reintegrating into society after being released from prison, but insisted that appellant had a desire to integrate and to be free from incarceration. Appellant was offered an opportunity to speak in mitigation, but declined to do so.

         {¶ 8} After hearing arguments from counsel for the state and appellant, the trial court set forth the principles and purposes of sentencing under R.C. 2929.11, as well as the sentencing factors under R.C. 2929.12 and 2929.13. Ultimately, the trial court ordered appellant to serve 17 ...

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