[Cite as State v. Hickey, 2017-Ohio-9060.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 17-CA-38
AUSTIN M. HICKEY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 17 CR 073


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        December 14, 2017


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


HAWKEN FLANAGAN                                STEPHEN T. WOLFE
Assistant Prosecuting Attorney                 Wolfe Law Group, LLC
Licking County, Ohio                           1350 W. 5th Ave., Suite 124
20 South Second Street, 4th Floor              Columbus, Ohio 43212
Newark, Ohio 43055
Licking County, Case No. 17-CA-38                                                        2

Hoffman, J.


       {¶1}   Defendant-appellant Austin Hickey appeals the judgment entered by the

Licking County Common Pleas Court convicting her of conspiracy to commit felonious

assault (R.C. 2903.11(A)(2), 2923.01) and sentencing her to a term of incarceration of

three years. Plaintiff-appellee is the state of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   During the overnight hours between January 31, 2017, and February 1,

2017, Appellant and the victim made plans to get together. Appellant picked the victim

up and drove him to Everett Park in Newark, Ohio, where she parked near a shelter house

at the back of the park.

       {¶3}   After Appellant parked, Andrew Painter and Shadow Gibson approached

the vehicle. Painter held a black handgun, and Gibson held an aluminum baseball bat.

The victim opened the passenger door and ran toward the park entrance. Appellant

chased him striking him with her car, throwing him through a fence. Gibson then caught

up to him and began striking him with the baseball bat, punching him, and kicking him.

       {¶4}   After Appellant, Gibson and Painter left the park, the victim made his way

to a residence where law enforcement and emergency personnel responded. The victim

suffered from numerous injuries, including a broken back and broken ribs.

       {¶5}   Appellant was indicted with one count of felonious assault in violation of

R.C. 2903.11, a felony of the second degree. On May 22, 2017, she withdrew her not

guilty plea and entered a no contest plea to an amended charge of conspiracy to commit

felonious assault, a third degree felony, in violation of R.C. 2923.01 and R.C. 2903.11.
Licking County, Case No. 17-CA-38                                                          3


The same day the Licking County Common Pleas Court sentenced her to the maximum

term of incarceration of three years.

       {¶6}   Appellant prosecutes her appeal from this May 22, 2017 judgment of the

court, assigning as error:

       {¶7}   “THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CONTRARY

TO LAW WHEN IT ORDERED APPELLANT TO SERVE THREE YEARS OF

INCARCERATION, THE MAXIMUM PRISON SENTENCE FOR A FELONY OF THE

THIRD DEGREE.”

       {¶8}   Appellant argues the record does not support imposition of the maximum

sentence.

       {¶9}   R.C. 2953.08(G)(2) sets forth the standard of review for all felony

sentences. State v. Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, ¶ 1. When hearing

an appeal of a trial court's felony sentencing decision, “[t]he appellate court may increase,

reduce, or otherwise modify a sentence that is appealed under this section or may vacate

the sentence and remand the matter to the sentencing court for resentencing.” R.C.

2953.08(G)(2).

       {¶10} Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase,

reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the

matter to the sentencing court for resentencing” if the court finds by clear and convincing

evidence “(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b)

[t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b). “An appellate

court will not find a sentence clearly and convincingly contrary to law where the trial court

considers the principles and purposes of R.C. 2929.11, as well as the factors listed in
Licking County, Case No. 17-CA-38                                                           4


R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within

the permissible statutory range.” State v. Ahlers, 12th Dist. Butler No. CA2015–06–100,

2016–Ohio–2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No. CA2014–02–016,

2014–Ohio–5191, ¶ 6.

       {¶11} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are

to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions the court determines accomplish those purposes

without imposing an unnecessary burden on state or local government resources. To

achieve these purposes, the sentencing court shall 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. R.C.

2929.11(A).

       {¶12} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion, but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

       {¶13} Among the various factors the trial court must consider and balance under

R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the victim as

a result of the offense; (2) whether the offender has a history of criminal convictions; (3)

whether the offender has not responded favorably to sanctions previously imposed by
Licking County, Case No. 17-CA-38                                                       5


criminal convictions; and (4) whether the offender shows genuine remorse for the offense.

R.C. 2929.12.

      {¶14} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony

sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109
Ohio St. 3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.

      {¶15} Appellant acknowledges the court stated it considered the purposes and

principles of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism

factors set forth in R.C. 2929.12, but argues the maximum sentence is not justified by the

record. She argues she had no prior felony convictions, was homeless, and suffered from

addiction at the time of the incident. She argues she was enrolled in college and planned

to pursue a career in civil engineering, and had maintained employment at the same

location for six years. She further notes she expressed remorse at the sentencing

hearing, and while incarcerated during the pendency of the case completed the Step One

program, attended substance abuse meetings, and became involved with programs to

address mental health issues. Four people spoke on her behalf at sentencing, stressing

she could become a productive member of society with treatment. Finally, she argues

the State recommended a prison sentence, but deferred to the court as to the length of

the sentence.

      {¶16} However, the recitation of facts set forth by the State, which Appellant

agreed with on the record, reflected the victim was seriously injured, breaking his back

and ribs. While Appellant claimed she did not intentionally run him over with her car, the

court noted she “certainly intended to lure him there where he could be accosted by other

people and attacked or robbed.” Tr. 26. The court further stated Appellant served a
Licking County, Case No. 17-CA-38                                                     6


probation violation from a drug case in 2014, in which she did not successfully complete

drug treatment and failed to appear for probation hearings. Tr. 27. Based on the record

of the sentencing hearing, we find the sentence is not clearly and convincingly contrary

to law.

          {¶17} The assignment of error is overruled. The judgment of the Licking County

Common Pleas Court is affirmed.



By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
