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Date: 06-09-2021
Case Style:
STATE OF OHIO -vs- JOHN PETTORINI
Case Number: 2020 CA 0057 & 2020 CA 0058
Judge: Craig R. Baldwin
Court: COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
Plaintiff's Attorney: PAULA M. SAWYERS
Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Canton, Ohio - Criminal defense attorney represented John Pettorini with one count of aggravated possession of controlled substances (fentanyl) charge.
On June 20, 2019, Pataskala Police were dispatched to take a report after
a two car automobile collision. Appellant had driven left of center and collided with another
vehicle. When the police arrived, they found appellant unconscious. Appellant was
revived with Narcan. Suspected drugs were found on appellant’s lap and on the road by
appellant’s car door. The drugs were later confirmed to be fentanyl.
{¶3} On October 17, 2019, appellant was indicted in Case No. 19 CR 839 on one
count of aggravated possession of controlled substances (fentanyl) in violation of R.C.
2925.11(A)(C)(1)(a), a felony of the fifth degree. At his arraignment on November 12,
2019, appellant entered a plea of not guilty to the charge.
{¶4} On May 1, 2020, appellant was stopped for a marked lanes violation. An
officer requested appellant’s driver’s license. Appellant claimed not to have a license with
him and fled. The pursuit by police lasted approximately 10 minutes with speeds up to 90
miles per hour in a 35 mile per hour zone. The total distance of the pursuit was
approximately 5 miles during which appellant ran numerous stop signs and traffic lights.
Appellant almost hit one vehicle and passed dangerously around several other vehicles.
Appellant then pulled into a field and ran on foot and was arrested. Used syringes were
found in his vehicle.
{¶5} On May 14, 2020, appellant was indicted in Case No. 20 CR 205 on one
count of failure to comply with order or signal of police officer in violation of R.C. Licking County, Case No. 2020 CA 00057, 2020 CA 00058 3
2921.331(B), a felony of the third degree, and one count of possessing drug abuse
instruments in violation of R.C. 2925.12(A), a misdemeanor of the first degree. On May
19, 2020, appellant entered a plea of not guilty to the charges.
{¶6} Appellant, on June 11, 2020, was indicted via a superseding indictment in
Case No. 19 CR 839 on one count of aggravated possession of controlled substances
(fentanyl) in violation of R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree, and one
count of failure to appear1 in violation of R.C. 2937.29 and R.C. 2937.99(B), a felony of
the fourth degree. On June 16, 2020, appellant entered a plea of not guilty to the charges.
{¶7} On September 8, 2020, appellee filed a Motion to Dismiss the charge of
failure to appear in Case No.19 CR 839. Pursuant to an Entry filed on the same date, the
Motion to Dismiss was granted.
{¶8} On September 8, 2020, appellant entered a plea of guilty to both counts in
Case No. 20 CR 205 and to the remaining count in Case No. 19 CR 839. As memorialized
in Judgment Entries filed in both cases on September 8, 2020, appellant was sentenced
to an aggregate sentence in Case No. 20 CR 205 of three years in prison and, in Case
No. 19 CR 839, was sentenced to one year in prison. The trial court ordered that the
sentences be served consecutively for an aggregate sentence of four years in prison.
{¶9} Appellant now raises the following assignments of error on appeal:
{¶10} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED PETTORINI TO
PRISON, INSTEAD OF COMMUNITY CONTROL, IN VIOLATION OF HIS DUE
PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
1
After appellant failed to appear for a pretrial conference, a capias was issued for his arrest. Licking County, Case No. 2020 CA 00057, 2020 CA 00058 4
UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE
OHIO CONSTITUTION.”
{¶11} “II. THE TRIAL COURT UNLAWFULLY ORDERED PETTORINI TO
SERVE CONSECUTIVE SENTENCES FOR HIS OFFENSES, IN VIOLATION OF HIS
RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE 1 OF THE
OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.”
I, II
{¶12} Appellant, in his first assignment of error, argues that the trial court erred in
sentencing him to prison instead of community control. In his second assignment of error,
appellant contends that the trial court erred in sentencing him to consecutive sentences.
We disagree.
{¶13} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court's findings under R.C. 2929.13(B)
or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to
law.
{¶14} Nothing in R.C. 2953.08(G)(2) permits this court to independently weigh the
evidence in the record and substitute its own judgment for that of the trial court to Licking County, Case No. 2020 CA 00057, 2020 CA 00058 5
determine a sentence that best reflects compliance with R.C. 2929.11 and R.C.
2929.12. State v. Jones, ––– N.E.3d ––––, 2020-Ohio-6729 ¶ 42.
{¶15} This Court is, therefore, without authority to disturb appellant’s sentence
absent a finding by clear and convincing evidence that the record does not support the
trial court's findings under R.C. 2929.11 and R.C. 2929.12. Instead we may only
determine if the sentence is contrary to law.
{¶16} A sentence is not 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 R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” State v. Dinka, 12th Dist. Warren Nos. CA2019-
03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶17} Appellant does not argue that his sentence was not within the permissible
statutory range. Rather, appellant argues that he should have been sentenced to
community control because he was remorseful, his conduct was not part of organized,
extensive drug trafficking, and he committed the offenses due to his relapse in his drug
addiction.
{¶18} However, we find that the trial court did not err in sentencing appellant to
prison rather than community control. As noted by the trial court, appellant was on
supervision at the time of the first offense, and at the time of the second offense, was
under indictment and a warrant had been issued for his arrest for failure to appear for the
first charge. The trial court noted that the first offense involved appellant operating a motor
vehicle while under the influence of drugs. Appellant’s offenses occurred on different
dates and involved drug activity. The trial court indicated that it had considered the Licking County, Case No. 2020 CA 00057, 2020 CA 00058 6
principles and purposes of sentencing under R.C. 2929.11 and the seriousness and
recidivism factors under R.C. 2929.12. The trial court found that appellant was not
amenable to community control. Moreover, appellant’s failure to appear for trial in Case
No. 19 CR 839 qualifies as one of the conditions for imposing a prison sentence on
felonies of the 4th and 5th degrees under R.C. 2929.13(B)(1)(b).
{¶19} Appellant also argues that the trial court erred in imposing consecutive
sentences.
{¶20} R.C. 2929.14(C)(4) governs consecutive sentences and states the
following:
{¶21} (4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of the following:
{¶22} (a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
{¶23} (b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the offenses Licking County, Case No. 2020 CA 00057, 2020 CA 00058 7
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
{¶24} (c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶25} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, syllabus. “[A] word-for-word recitation of the language of the statute is not
required, and as long as the reviewing court can discern that the trial court engaged in
the correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld.” Id. at ¶ 29.
{¶26} In the case sub judice, the trial court found that consecutive sentences were
necessary to protect the public or to punish the offender and were not disproportionate to
the seriousness of the crimes that appellant committed and the danger that appellant
posed to the public. The trial court found that appellant had committed one or more of the
multiple offenses while awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under
post-release control for a prior offense. As is stated above, the trial court noted that
appellant was on supervision at the time of the first offense, and at the time of the second
offense, was under indictment and a warrant had been issued for his arrest for failure to
appear for the first charge. The trial court noted that the first offense involved appellant Licking County, Case No. 2020 CA 00057, 2020 CA 00058 8
operating a motor vehicle while under the influence of drugs. Both cases involved drug
activity.
{¶27} The trial court also reviewed appellant’s presentence investigation report
(PSI). The PSI revealed that appellant had an extensive history of drug use and had
served two separate prison terms for burglary. While in prison, appellant was charged
with a third burglary but was eventually convicted of a lesser offense and was given
probation. However, appellant relapsed and was charged with possession of drugs.
Appellant also has convictions for drug abuse and drug paraphernalia.
{¶28} Based on the foregoing, we find that the trial court did not err in sentencing
appellant to prison and imposing consecutive sentences.
{¶29} Appellant’s two assignments of error are, therefore, overruled.
Outcome: Accordingly, the judgment of the Licking County Court of Common Pleas is
affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: