[Cite as State v. Butcher, 2017-Ohio-631.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLERMONT COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellant,                        :     CASE NO. CA2016-05-028

                                                    :          OPINION
    - vs -                                                      2/21/2017
                                                    :

JOHN BUTCHER III,                                   :

        Defendant-Appellee.                         :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2013 CR 0423



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellant

The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati,
Ohio 45202, for defendant-appellee



        HENDRICKSON, P.J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from a decision of the Clermont

County Court of Common Pleas granting judicial release to defendant-appellee, John

Butcher III. For the reasons set forth below, we affirm in part, reverse in part, and remand

the matter for further proceedings consistent with this opinion.

        {¶ 2} On July 11, 2013, Butcher was indicted on one count of felonious assault in
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violation of R.C. 2903.11(A)(2), a felony of the second degree. The charge arose out of an

incident that occurred on June 26, 2013, at Butcher's parent's home in Clermont County,

Ohio. Butcher, who suffers from mental health problems, took another person's prescription

Klonopin and wielded a knife and axe inside the home while his mother, his daughter, and his

girlfriend were present. Police officers were dispatched to the home, but prior to their arrival,

Butcher cut his girlfriend's wrist with the knife. Six stitches were required to close the wound.

       {¶ 3} Butcher entered a guilty plea to the charge, and a sentencing hearing was held

on November 25, 2013. At this time, the trial court heard from defense counsel, the state,

Butcher, and Butcher's mother. The court also had before it a presentence investigation

report, a victim impact statement from Butcher's girlfriend, a statement from a deputy with the

Clermont County Sheriff's Office who had responded to the home on June 26, 2013, and an

assessment by a clinical psychologist finding Butcher competent to stand trial and ineligible

for a not guilty by reason of insanity defense.

       {¶ 4} The court considered the information it had before it regarding Butcher's bipolar

diagnosis and mental health issues, the stressors Butcher had in his life at the time the

offense was committed (such as his lack of job, lack of transportation, and newly acquired

knowledge that his father had been diagnosed with stage IV colon cancer), his prior criminal

history (which included a prior conviction for aggravated burglary wherein Butcher broke into

an ex-girlfriend's home and threatened her with a knife), his relationship with the victim, and

the fact that he had not responded favorably to sanctions previously imposed for prior

criminal convictions. The court determined, "with regard to seriousness, * * * [i]t appears to

be more serious than behaviors normally constituting offenses of this nature because of your

relationship with the victim facilitating this offense." The court further determined that

"recidivism appears to be likely." The court sentenced Butcher to four years in prison, which

was run consecutively to a nine-month prison term imposed in another case for Butcher's

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failure to comply with community control requirements.

       {¶ 5} On June 5, 2014, Butcher filed a motion for judicial release. The trial court

denied Butcher's motion on June 18, 2014, without a hearing. Several months later, on

December 3, 2014, Butcher filed another motion for judicial release. This motion was denied

by the trial court on December 31, 2014.

       {¶ 6} On January 12, 2016, Butcher filed his third motion for judicial release. A

hearing on his motion was held on April 19, 2016. At that time, the parties each presented

evidence in support of their respective positions. This included evidence that Butcher had

been incarcerated for over two years during which time the victim died from causes unrelated

to the felonious assault and Butcher's mother had forgiven him for the events that transpired

at her home on June 26, 2013. The court was also informed that Butcher's parents were

willing to let him live in their home if he were released, that Butcher had participated in and

completed a number of mental health, education, and awareness programs while

incarcerated, that he had taken steps to obtain his GED, and that he was employed as a

painter within the prison. The court also had before it an assessment of Butcher from

Greater Cincinnati Behavior Health, which made certain mental health diagnoses and

recommended various mental health treatments.

       {¶ 7} After considering the foregoing evidence, the trial court granted Butcher's

motion for judicial release. The court found that a sanction other than a prison term would

adequately punish Butcher and protect the public from future crime as "[t]he applicable

factors indicating a less – lesser likelihood of recidivism outweigh the applicable factors

indicating a greater likelihood of recidivism." The court also acknowledged that while it had

previously found Butcher's conduct "more serious" at his sentencing hearing, it now found

that Butcher's release from prison and placement on community control would not demean

the seriousness of the offense as "his conduct in committing the offense was less serious
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than conduct normally constituting the offense outweigh[s] factors indicating that his conduct

was more serious than conduct normally constituting the offense."

       {¶ 8} In support of its opinion, the court noted the various mental health issues

Butcher suffered, his efforts to rehabilitate himself while in prison, and his willingness to

comply with the terms and conditions of community control. The court also noted that as the

victim had died, Butcher "can no longer have a relationship with [her]," and that Butcher's

mother had forgiven him and was giving him a second chance. The court stated that it

"believed * * * that with the involvement of Greater Cincinnati Behavior Health, and intensive

supervision by our probation department for a period of five years, much longer than his

prison sentence would be, that that would adequately punish the offender as much as it

would require him to meet with, and follow through with, and complete a program at the

probation department, complete an inpatient program for the MonDay Program." The court,

therefore, ordered Butcher be subject to five years of community control in an intensive

treatment program supervised by the adult probation department. Butcher was also ordered

to complete a six-month MonDay Treatment Program and to comply with all

recommendations from Greater Cincinnati Behavior Health to address his mental health

issues.

       {¶ 9} The state timely appealed the trial court's decision to grant Butcher judicial

release, raising two assignments of error for our review. For ease of discussion, we will

address the state's second assignment of error first.

       {¶ 10} Assignment of Error No. 2:

       {¶ 11} THE TRIAL COURT ERRED IN GRANTING APPELLEE JUDICIAL RELEASE

AS ITS FINDINGS UNDER SECTION 2929.20(J) WERE CLEARLY AND CONVINCINGLY

NOT SUPPORTED BY THE RECORD.

       {¶ 12} In its second assignment of error, the state argues the trial court erred by
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granting Butcher judicial release as the evidence "fails to support the court's findings under

section 2929.20." We disagree.

       {¶ 13} R.C. 2953.08(B)(3) provides that a state may appeal, as a matter of right, a

trial court's decision to grant judicial release to an offender sentenced for a felony of the first

or second degree. State v. Ledford, 12th Dist. Clermont CA2016-04-021, 2017-Ohio-149, ¶

11, citing State v. Nichter, 10th Dist. Franklin No. 15AP-40, 2015-Ohio-3489, ¶ 5. "The

standard of review applied by an appellate court in reviewing a trial court's decision to grant

judicial release is found in R.C. 2953.08(G)(2)." Id., citing State v. Nichter, 10th Dist. Franklin

No. 15AP-886, 2016-Ohio-7268, ¶ 15. Pursuant to R.C. 2953.08(G)(2), an appellate court

may modify or vacate a sentence on appeal "only if it determines by clear and convincing

evidence that the record does not support the trial court's findings under relevant statutes or

that the sentence is otherwise contrary to law." State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, ¶ 1. "This is an 'extremely deferential' standard of review for the restriction is on

the appellate court, not the trial judge." Ledford at ¶ 11, citing State v. Geldrich, 12th Dist.

Warren No. CA2015-11-103, 2016-Ohio-3400, ¶ 6.

       {¶ 14} Judicial release is governed by R.C. 2929.20, which provides in relevant part

the following:

                 A court shall not grant a judicial release under this section to an
                 eligible offender who is imprisoned for a felony of the first or
                 second degree * * * unless the court, with reference to factors
                 under section 2929.12 of the Revised Code, finds both of the
                 following:

                 (a) That a sanction other than a prison term would adequately
                 punish the offender and protect the public from future criminal
                 violations by the eligible offender because the applicable factors
                 indicating a lesser likelihood of recidivism outweigh the applicable
                 factors indicating a greater likelihood of recidivism;

                 (b) That a sanction other than a prison term would not demean
                 the seriousness of the offense because factors indicating that the
                 eligible offender's conduct in committing the offense was less
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              serious than conduct normally constituting the offense outweigh
              factors indicating that the eligible offender's conduct was more
              serious than conduct normally constituting the offense.

R.C. 2929.20(J)(1).

       {¶ 15} A trial court may consider any relevant factors necessary to achieving the

purposes and principles of sentencing pursuant to R.C. 2929.12(A). "Thus, in accordance

with R.C. 2953.08(G)(2), the applicable standard of review this court must apply is whether

the record does not clearly and convincingly support the trial court's findings made pursuant

to R.C. 2929.20(J) or whether the decision is otherwise contrary to law." Ledford, 2017-Ohio-

149 at ¶ 13. "Clear and convincing evidence is that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as

is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross

v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶ 16} Here, the state does not argue that the trial court's decision to grant Butcher

judicial release was contrary to law. Nor does state does challenge the trial court's findings

under R.C. 2929.20(J)(1)(a) as they relate to the likelihood of Butcher's recidivism. Rather,

the state argues that the record does not support by clear and convincing evidence the trial

court's findings made under R.C. 2929.20(J)(1)(b) as they relate to the seriousness of

Butcher's conduct. Specifically, the state argues it was improper for the trial court to grant

Butcher's motion for judicial release "[s]ince no new evidence was presented to show

[Butcher's] conduct was less serious than conduct normally constituting the offense of

felonious assault." The state contends the trial court was bound by its prior finding that the

Butcher's conduct was "more serious than behaviors normally constituting offenses of this

nature because of [his] relationship with the victim facilitating this offense."

       {¶ 17} This court recently addressed this exact issue in State v. Ledford, 2017-Ohio-
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149. There, the state challenged a trial court's decision to grant judicial release to an

offender who had committed aggravated robbery, a felony of the first degree. Id. at ¶ 3.

When Ledford was sentenced to a four-year prison term, the trial court found her conduct

"more serious than a typical case of this nature in that [she] knew the victim." Id. at ¶ 4.

However, in granting Ledford judicial release approximately two years later, the trial court

found "Ledford's release from prison and placement on community control would not demean

the seriousness of the offense because 'factors indicating [her] conduct in committing the

offense was less serious than conduct normally constituting the offense outweigh factors that

[her] conduct was more serious than conduct normally constituting the offense.'" Id. at ¶ 6.

      {¶ 18} In upholding the trial court's decision to grant Ledford's motion for judicial

release, we stated:

             [A] hearing on a motion for judicial release is a new hearing that
             requires by statute a new evaluation of the factors, regardless of
             the trial court's earlier findings under R.C. 2929.12(B) and (C) as
             to the seriousness of the offense. To hold otherwise would
             effectively negate any potential for judicial release in cases where
             an otherwise "eligible offender" was found to have committed
             conduct that was more serious than the conduct normally
             constituting the offense at a prior sentencing hearing. That is
             clearly not what the General Assembly intended for there would
             be no need for the trial court to make any findings regarding the
             seriousness of the offense at a subsequent judicial release
             hearing in accordance with R.C. 2929.20(J)(1)(b). The General
             Assembly could have also easily excluded persons who were
             found to have committed a more serious offense at sentencing
             from its definition of "eligible offender" who could move for judicial
             release if it had intended such a result. The General Assembly
             did not provide such a restriction, and neither shall we. See R.C.
             2929.20(A)(1) (defining the term "eligible offender" for purposes
             of judicial release).

Id. at ¶ 16. Accord State v. Edwards, 3d Dist. Marion No. 9-04-67, 2005-Ohio-2246.

      {¶ 19} We further noted that "due to the fundamental nature of the passage of time, it

should go without saying that the seriousness factors contained in R.C. 2929.12(B) and (C)

that the trial court balances at a defendant's sentencing hearing generally go unchanged
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when addressing a subsequent eligible offender's motion for judicial release." Ledford at ¶

17. However, "when addressing such a motion, 'the trial court [is] authorized to look beyond

the seriousness factors and the recidivism factors in determining whether to exercise its

discretion in favor of judicial release.'" Id., quoting State v. Grilliot, 2d Dist. Darke No.

99CA1485, 1999 WL 812351, *3 (Sept. 24, 1999). As the Second District Court of Appeals

stated in Grillot:

                 It is clear from the record that Grilliot's having served 8 months of
                 his 4 year sentence-and the lesson learned from that experience-
                 is what persuaded the trial judge that Grilliot should be given
                 judicial release. The trial court's finding pursuant to R.C.
                 2929.20([J])(1)(b) does not fit neatly within the confines of that
                 subsection because that subsection requires-and is limited to-a
                 balancing of the seriousness factors that is favorable to Grilliot.
                 That didn't happen in this case and we are hard pressed to
                 imagine a situation where it would. The trial court balances the
                 seriousness factors at sentencing. Those factors, which are
                 rooted in the facts of the case at hand, don't change over time.
                 Thus, a balancing unfavorable to the defendant at the time of
                 sentencing will perforce be unfavorable when judicial release is
                 sought. Thus, judicial release would not be possible unless the
                 trial court may consider "any other relevant factors." Where other
                 factors are considered, however, the precise finding required by
                 the strict wording of R.C. 2929.20 ([J])(1)(b) cannot be made.
                 However, reading R.C. 2929.20([J])(1)(b) together with R.C.
                 2929.12(A), we believe the trial court's finding satisfies the spirit,
                 if not the letter, of R.C. 2929.20([J])(1)(b). We likewise conclude
                 that the trial court's finding is in keeping with these two
                 subsections, which-pursuant to R.C. 2929.20([J])(1)-are to be
                 read together.

Grillot at *4.

        {¶ 20} Accordingly, with these principles in mind, we turn to the case at hand. After

thoroughly reviewing the record, we conclude that the findings the trial court made pursuant

to R.C. 2929.20(J)(1)(b) were supported by clear and convincing evidence. The record

contains evidence to support the trial court's findings that Butcher was suffering from mental

health problems at the time of his offense, that he continued to battle such issues, and that

his mental health issues would be better treated outside the prison system. The record also
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contained evidence that Butcher had taken substantial efforts to rehabilitate himself in

prison, had demonstrated a willingness to comply with the terms and conditions of

community control, had earned the forgiveness of his mother, who was willing to allow

Butcher to live with her upon his release from prison, and could no longer engage in a

relationship with the victim.

       {¶ 21} Therefore, in light of the foregoing, we find no error in the trial court's decision

to grant Butcher's motion for judicial release. The state's second assignment of error is

overruled.

       {¶ 22} Assignment of Error No. 1:

       {¶ 23} THE TRIAL COURT CLEARLY AND CONVINCINGLY ERRED IN GRANTING

APPELLEE JUDICIAL RELEASE AS IT FAILED TO LIST WHICH SECTION 2929.12

FACTORS IT RELIED UPON IN FINDING RECIDIVISM LESS LIKELY.

       {¶ 24} In its first assignment of error, the state argues the trial court failed to comply

with the requirements of R.C. 2929.20(J)(2) in granting Butcher judicial release. Although

acknowledging in its appellate brief that "[t]here are three sections in the judicial release

transcript where the court discusses recidivism in conjunction with the facts it considered,"

the state nonetheless argues that because the court "did not specify which section 2929.12

factors it considered in making its finding that [Butcher] had a lesser likelihood of recidivism,

it clearly and convincingly erred in granting judicial release."

       {¶ 25} R.C. 2929.20(J)(2) provides that "[a] court that grants a judicial release to an

eligible offender under division (J)(1) of this section shall specify on the record both findings

required in that division and also shall list all the factors described in that division that were

presented at the hearing." (Emphasis added.)

       {¶ 26} After reviewing the record, we find that the trial court failed to comply with the

requirements of R.C. 2929.20(J)(2). The court specified on the record the findings required
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by R.C. 2929.20(J)(1), but it did not list all the factors described in that division that were

presented by the parties. Although the record of the hearing demonstrates that evidence

relating to the likelihood of recidivism was presented by the parties and considered by the

court, nowhere in the transcript of the judicial release hearing or in the court's entry granting

release does the court specifically list the factors that were presented, as required by R.C.

2929.20(J)(2). See, e.g., State v. Weiss, 180 Ohio App.3d 509, 2009-Ohio-78, ¶ 17 (3d

Dist.) ("the trial court failed to set forth any of the recidivism factors or factors regarding the

seriousness of the offense that were presented at the hearing. Although Weiss contends

that the record of the hearing contains the factors in the form of her own testimony, this is

insufficient because [R.C. 2929.20(J)(2)] requires the trial court to list on the record the R.C.

2929.12 factors presented at the hearing); State v. Edwards, 3d Dist. Marion No. 9-04-67,

2005-Ohio-2246, ¶ 5 ("[t]he trial court was required by statute to list all factors presented at

the hearing").

       {¶ 27} We further recognize, sua sponte, that the trial court's failure to list the factors

that were presented at the hearing also encompasses those factors relating to the

seriousness of Butcher's conduct. We therefore sustain the state's first assignment of error,

reverse the judgment of the trial court, and remand the matter for the limited purpose of

complying with R.C. 2929.20(J)(2) by listing all the factors described in division (J)(1) of the

statute that were presented at the hearing related to the likelihood of recidivism and the

seriousness of Butcher's conduct. See State v. Edwards, 3d Dist. Marion No. 9-05-28, 2006-

Ohio-353.

       {¶ 28} Judgment affirmed in part, reversed in part, and the matter remanded for

further proceedings consistent with this opinion.


       PIPER and M. POWELL, JJ., concur.


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