May 8, 2000

STATE OF OHIO, PLAINTIFF-APPELLEE,

v.

FRANK M. LORING, DEFENDANT-APPELLANT.







The opinion of the court was delivered by: Lazarus, J.

REGULAR CALENDAR

OPINION

APPEAL from the Franklin County Court of Common Pleas.

Defendant-appellant, Frank M. Loring, appeals from the judgment of the Franklin County Court of Common Pleas sentencing him to the maximum sentence of imprisonment following his plea of guilty and conviction for one count of endangering children. For the reasons that follow, we affirm.

On April 14, 2000, the Franklin County Grand Jury returned an indictment charging appellant with three counts of endangering children in violation of R.C. 2919.22. The charges arose out of allegations that appellant and his girlfriend, Karla Haynor, had endangered Karla's ten-year-old daughter by administering excessive and cruel corporal punishment on an unspecified number of occasions between June 1998 and August 1999. Specifically, appellant used an electric cattle prod, referred to as "Mr. Shocky," to shock the child.

On June 27, 2000, appellant entered a guilty plea to Count 2 of the indictment, a third degree felony. The trial judge ordered a presentence investigation report and scheduled the matter for sentencing.

On August 18, 2000, the trial court conducted a sentencing hearing. The prosecutor did not request that the trial court sentence appellant to the maximum term. Counsel for appellant requested some leniency as appellant was remorseful, had been drinking during the incidents, had since become involved with AA and had taken steps to obtain full-time employment. Following that hearing, appellant was sentenced to a five-year term of imprisonment, the maximum term allowed by statute.

On appeal, appellant assigns as error the following: The trial court erred in sentencing the defendant to the maximum term of imprisonment in violation of Section 2914 (C) of the Ohio Revised Code thereby entitling the defendant to a reduction of such sentence pursuant to Section 2953.08 (G) of the Ohio Revised Code.

Appellant contends that the trial court abused its discretion, as it did not find that appellant posed the "greatest likelihood" of reoffending, nor did he commit the worst form of child endangering. Specifically, appellant argues the victim did not require hospitalization, emergency room visits, or urgent care treatment as a result of being shocked with a cattle prod.

Under R.C. 2929.14(C), a trial court may impose a maximum sentence for a single offense only upon an offender who committed the worst form of the offense; upon an offender who poses the greatest likelihood of committing future crimes; upon certain major drug offenders; and upon certain repeat violent offenders. Under R.C. 2929.19(B)(2)(d), a trial court is required to make findings that the offender meets one or more of the criteria set forth in R.C. 2929.14(C) and is required to provide an explanation to support its findings regarding the R.C. 2929.14(C) criteria. State v. Edmonson (1999), 86 Ohio St.3d 324 326; see, generally, State v. Zwiebel (Aug. 29, 2000), Franklin App. No. 00AP-61, unreported. An appellate court may reverse a sentence if it finds, by clear and convincing evidence, that the sentence is unsupported by the record or is contrary to law. R.C. 2953.09(G)(1)(a) and (d).

R.C. 2929.12(B) sets forth factors indicating that the offender's conduct is "more serious than conduct normally constituting the offense." Those factors are:

(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.

(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.