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Maximum sentence affirmed for man who stopped son's breathing
JESSICA SHAMBAUGH
Special to the Legal News
Published: December 3, 2013
The 3rd District Court of Appeals this week affirmed a man’s 36-month prison sentence for child endangering after he pushed his son’s face into a bed until he stopped breathing.
Michael Allen Toler was charged with felonious assault and two counts of child endangering after an incident involving his infant son that occurred on Aug. 27, 2012.
According to the facts of the case, Toler became frustrated with his son and pushed the child’s face down onto a bed by placing his hands on the child’s back.
Toler noticed that the boy stopped breathing and he attempted to resuscitate him.
After his attempts failed, Toler and his wife rushed the child to the hospital and personnel there were able to restart the boy’s heart.
Toler was charged on Nov. 15, 2012 and initially pleaded not guilty.
However, at a pretrial hearing on March 1, 2013, the parties reached a negotiated plea agreement in which Toler pleaded guilty to child endangering as a third-degree felony and the state nolled the remaining charges.
The Auglaize County Court of Common Pleas accepted the plea agreement and Toler acknowledged that he understood his maximum prison term for the offense was 36 months and that there was a mandatory post-release control period of three years if he was sentenced to prison.
At a sentencing hearing, Toler requested a sentence of community control.
After reviewing the mitigating circumstances, a presentence investigation report and a victim impact statement, the trial court rejected that request and sentenced him to the maximum 36 months in prison.
On direct appeal, Toler argued that his sentence was contrary to law and an abuse of discretion.
“In his assignment of error, Toler argues that the trial court failed to properly consider and apply the purposes and principals for felony sentencing set forth in R.C. 2929.11 and the factors relating to the seriousness of the offense and the recidivism of the offender under R.C. 2929.12,” Presiding Judge Vernon Preston wrote for the court.
After review, the judges held that a trial court is required to consider the sentencing procedures outlined in R.C. 2929.11 and R.C. 2929.12, but is not required to use any specific language with regard to that consideration.
In Toler’s case, the trial court heard his explanation of why he should be granted community control and his explanation of how he committed the offense and noted that he attempted to minimize his actions in the PSI report.
“The trial court pointed out that Toler nearly killed his son, and that Toler failed to ‘follow through with the opportunities that he was given to rehabilitate himself in the months following’ the offense, which the trial court said ‘did not speak well of his ability to be rehabilitated in a shorter period of time or without incarceration,’” Judge Preston stated.
The judges found that the trial court specifically mentioned considering the purposes and principles of the relevant sections of the Ohio Revised Code.
They also held that the 36-month sentence was within the statutory range and therefore was not contrary to law.
“Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.”
Judges John Willamowski and Richard Rogers concurred.
The case is cited State v. Toler, 2013-Ohio-5084.
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