[Cite as State v. Neal, 2011-Ohio-1502.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Julie A. Edwards, P.J.
: W. Scott Gwin, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 10CAA050036
:
:
TERRY NEAL : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Delaware
County Court of Common Pleas Case
No. 09 CRI 05 249
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 22, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID YOST LINDA K. KENDRICK
140 N. Sandusky Street 94 North Sandusky Street, Suite 2
Delaware, Ohio 43015 Delaware, Ohio 43015
[Cite as State v. Neal, 2011-Ohio-1502.]
Edwards, P.J.
{¶1} Defendant-appellant, Terry Neal, appeals his sentence from the Delaware
County Court of Common Pleas on one count of nonsupport or contributing to the
nonsupport of dependents. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 8, 2009, the Delaware County Grand Jury indicted appellant on
one count of nonsupport or contributing to the nonsupport of dependents in violation of
R.C. 2919.21(A)(2), a felony of the fourth degree, and one count of nonsupport or
contributing to the nonsupport of dependents in violation of R.C. 2919.21(B), also a
felony of the fourth degree. That indictment indicated that appellant previously had been
convicted of or pleaded guilty to felony nonsupport. At his arraignment on August 13,
2009, appellant entered a plea of not guilty to the charges.
{¶3} Thereafter, on August 26, 2009, appellant withdrew his former not guilty
plea and entered a plea of guilty to nonsupport or contributing to the nonsupport of
dependents in violation of R.C. 2919.21(A)(2). As memorialized in a Judgment Entry
filed on August 27, 2009, the remaining count was dismissed. Sentencing was
scheduled for November 23, 2009, but was later continued to February 8, 2010.
{¶4} After appellant failed to appear on February 8, 2010, a warrant was issued
for his arrest. A sentencing hearing was later scheduled for April 8, 2010. Pursuant to a
Judgment Entry filed on April 12, 2010, appellant was sentenced to 18 months in prison.
{¶5} Appellant now raises the following assignment of error on appeal:
{¶6} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ARBITRARILY SENTENCED DEFENDANT TO THE MAXIMUM SENTENCE.”
Delaware County App. Case No. 10CAA050036 3
I
{¶7} Appellant, in his sole assignment of error, argues that the trial court
abused its discretion when it sentenced him to the maximum sentence. We disagree.
{¶8} In State v. Foster, the Supreme Court of Ohio, in striking down parts of
Ohio's sentencing scheme, held “[t]rial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or give
their reasons for imposing maximum, consecutive, or more than the minimum
sentences.” 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the
syllabus.
{¶9} Thus, an appellate court reviews felony sentences for an abuse of
discretion. Id. An abuse of discretion implies the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying an abuse of
discretion standard, an appellate court may not generally substitute its judgment for that
of the trial court. See Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 1993-Ohio-
122, 614 N.E.2d 748.
{¶10} As is stated above, appellant entered a plea of guilty to one count of
nonsupport or contributing to the nonsupport of dependents. Appellant, who as of
February 1, 2010, owed over $60,000.00 in child support, failed to appear at the
sentencing hearing scheduled for February 8, 2010. The sentencing hearing originally
had been scheduled for November 23, 2009, but had been continued until February 8,
2010, so that appellant could start a job and begin making child support payments.
Delaware County App. Case No. 10CAA050036 4
{¶11} At the sentencing hearing in this case on April 8, 2010, the prosecutor
indicated that appellant, who had a prior charge of felony nonsupport, had not paid a
dime and that the only time that a payment had been received was when appellant was
in prison. The trial court, in sentencing appellant to the maximum sentence of 18
months, stated, in relevant part, as follows:
{¶12} “Quite frankly your record, the fact that the Court attempted to give you an
extended sentence so you could prove yourself by getting a job, the fact that you blew
the Court off, you made no payments except the last time you were in prison, the Court
feels that the maximum sentence is appropriate. You will serve the maximum
sentence.” Transcript at 9. The trial court, in its April 12, 2010, Judgment Entry, noted
that appellant had a lengthy criminal record and was not employed. The trial court
further indicated that it had considered the purposes and principles of sentencing as
required by R.C. Section 2929.11 and the seriousness and recidivism factors set forth in
R.C. 2929.12.
{¶13} Based on the foregoing, we find that the trial court did not err in
sentencing appellant to the maximum sentence. The trial court’s decision was not
arbitrary, unconscionable or unreasonable.
Delaware County App. Case No. 10CAA050036 5
{¶14} Appellant’s sole assignment of error is, therefore, overruled.
{¶15} Accordingly, the judgment of the Delaware County Court of Common
Pleas is affirmed.
By: Edwards, P.J.
Gwin, J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d1124
[Cite as State v. Neal, 2011-Ohio-1502.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TERRY NEAL :
:
Defendant-Appellant : CASE NO. 10CAA050036
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed
to appellant.
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_________________________________
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JUDGES