[Cite as State v. Nichter, 2014-Ohio-4226.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 14AP-34
v. : (C.P.C. No. 10CR-7383)
Daniel J. Nichter, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 25, 2014
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellant.
Meeks & Thomas Co., LPA, R. William Meeks and David H.
Thomas, for appellee.
APPEAL from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from a judgment of the Franklin
County Court of Common Pleas granting defendant-appellee, Daniel J. Nichter, judicial
release pursuant to R.C. 2929.20. For the following reasons, we reverse the trial court's
judgment and remand this matter for additional proceedings.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In December 2010, appellee was indicted on 1 count of engaging in a pattern
of corrupt activity, in violation of R.C. 2923.32; 1 count of theft, in violation of R.C.
2913.02; 22 counts of identity fraud, in violation of R.C. 2913.49; 20 counts of forgery, in
violation of R.C. 2913.31; and 4 counts of receiving stolen property, in violation of R.C.
No. 14AP-34 2
2913.51. Appellee pled guilty to three counts of second-degree felony identity fraud.
Upon the parties' joint recommendation, the trial court imposed a four-year sentence for
each count and ordered appellee to serve the sentences concurrently. A nolle prosequi
was entered for the remaining counts in the indictment. The trial court's sentencing entry
was filed on January 13, 2012. In the entry, the court stated, among other things, that
appellee "shall pay restitution in an amount to be determined." (R. 74, at 2.)
{¶ 3} On August 7, 2012, appellee filed a motion for judicial release, which the
state opposed. The trial court denied the motion but stated it would reconsider after
appellee served one year of his sentence. On May 24, 2013, appellee filed a second motion
for judicial release, which the state again opposed.
{¶ 4} On November 22, 2013, the trial court held a hearing on appellee's second
motion for judicial release. By entry filed January 13, 2014, the trial court granted
appellee judicial release and placed him on community control for a period of three years.
The state appealed.
II. ASSIGNMENTS OF ERROR
{¶ 5} The state presents us with the following assignments of error for review:
[I.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FAILING TO MAKE BOTH OF THE
FINDINGS NEEDED TO JUSTIFY THE JUDICIAL RELEASE
OF A SECOND-DEGREE FELON.
[II.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FAILING TO LIST ALL OF THE FACTORS
PRESENTED AT THE HEARING IN DECIDING TO GRANT
JUDICIAL RELEASE TO A SECOND-DEGREE FELON.
[III.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN GRANTING JUDICIAL RELEASE FOR A
SECOND-DEGREE FELON BASED ON A DISCRETE LEGAL
ERROR IN FAILING TO CONSIDER DEFENDANT'S
DEMONSTRATED PATTERN OF CRIMINAL ACTIVITY.
[IV.] THE TRIAL COURT ERRED IN GRANTING JUDICIAL
RELEASE IN THE ABSENCE OF RECORD SUPPORT FOR
THE NECESSARY FINDING RELATED TO SERIOUSNESS.
No. 14AP-34 3
III. DISCUSSION
{¶ 6} Before we address the merits of this appeal, we must determine whether we
have jurisdiction to do so. The trial court's January 13, 2012 sentencing entry states
appellee "shall pay restitution in an amount to be determined." (R. 74, at 2.) Thus, we
questioned whether the sentencing entry was a final appealable order. See State v.
Dudley, 5th Dist. No. 13-COA-016, 2014-Ohio-430, ¶ 18 ("Where a judgment entry does
not settle either the amount of restitution or the method of payment, * * * it is not a final
appealable order."), citing State v. Kuhn, 3d Dist. No. 4-05-23, 2006-Ohio-1145, ¶ 8; In re
Zakov, 107 Ohio App.3d 716, 718 (11th Dist.1995); In re Holmes, 70 Ohio App.2d 75, 77
(1st Dist.1980). On July 2, 2014, this court ordered the parties to submit supplemental
briefs regarding "whether the trial court's January 13, 2012 entry is a final appealable
order, and if it is not, the impact of that fact on the present appeal of the trial court's
decision to grant appellee judicial release." The parties responded they are in agreement
that the sentencing entry was a final appealable order and, in any event, this appeal
should go forward. We agree with the parties that this appeal should proceed on the
merits because, ultimately, the state has appealed from the trial court's judgment granting
appellee judicial release, not the sentencing entry. See State v. Cockroft, 10th Dist. No.
13AP-532, 2014-Ohio-1644, ¶ 10-11 (declining to address whether a sentencing entry was
a final appealable order because it was not at issue on appeal); see also State v. Perkins,
2d Dist. No. 25808, 2014-Ohio-1863, ¶ 32-50 (concluding, although an original
sentencing entry was not a final appealable order because of a restitution error, the
remainder of the appellant's sentence, aside from the restitution portion, was valid).
{¶ 7} The state brought this appeal pursuant to R.C. 2953.08(B), and that
provision specifically confers upon the state the right to do so. R.C. 2953.08(B) provides,
in pertinent part:
In addition to any other right to appeal and except as
provided in division (D) of this section, a prosecuting
attorney * * * may appeal as a matter of right a sentence
imposed upon a defendant who is convicted of or pleads
guilty to a felony or, in the circumstances described in
division (B)(3) of this section the modification of a sentence
imposed upon such a defendant, on any of the following
grounds:
No. 14AP-34 4
***
(3) The sentence is a modification under section 2929.20 of
the Revised Code of a sentence that was imposed for a felony
of the first or second degree.
State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, ¶ 11 ("R.C. 2953.08(B)(3)
grants the state a right to appeal if a court modifies[, pursuant to R.C. 2929.20,] a
sentence imposed for a felony of the first or second degree."); State v. Orms, 10th Dist.
No. 13AP-698, 2014-Ohio-2732, ¶ 8, quoting State v. Williams, 10th Dist. No. 10AP-55,
2010-Ohio-4519, ¶ 9 ("In accordance with R.C. 2953.08(B)(3), the state 'may appeal as a
matter of right a decision to grant judicial release to an offender sentenced for a felony of
the first or second degree.' "). Appellee's convictions were for second-degree felonies.
Thus, we find that this appeal is properly before us.
{¶ 8} We will consider the state's first and second assignments of error together
for ease of discussion. Thereunder, the state argues the trial court erred by granting
appellee judicial release without complying with the findings and factors requirements of
R.C. 2929.20(J)(1) and (2). We agree.
{¶ 9} We review this matter to determine whether the record clearly and
convincingly supports the trial court's findings made pursuant to R.C. 2929.20(J), or
whether the decision is otherwise contrary to law. Orms at ¶ 8, citing Williams at ¶ 9,
citing R.C. 2953.08(G)(2), and State v. Costlow, 8th Dist. No. 89501, 2008-Ohio-1097,
¶ 9-13.
{¶ 10} R.C. 2929.20 governs judicial release and provides, in relevant part:
(J)(1) 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;
No. 14AP-34 5
(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 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.
(2) 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.
{¶ 11} During the hearing on appellee's motion for judicial release, the trial court
made the following pertinent comments:
I need for you to understand the financial, the emotional, the
intellectual, the physical impact that you have had on [your
victim's] life, not only his life, but his clients that he is
trusted and accumulated over time, his family's life, his well-
being, you have forever changed that because you decided to
do something that is the supreme in selfishness.
***
My challenge is that, regardless of whether I grant the
motion or not, at some point in time you are going to be
released from the institution. At some point in time you are
going to have to make amends for this huge mess that you
have made and that you continue to make by the challenges
that your victims face.
What I have to decide is whether it is likely that you will find
yourself in this kind of a predicament again or whether it is
less likely that you will find yourself in this kind of a
predicament again. The only thing that I have to go on is
your record prior to these offenses and how you have
conducted yourself while you have been incarcerated.
There is nothing in those records that would indicate to me
that you might engage in this kind of behavior again. * * *
***
No. 14AP-34 6
* * * This is a serious offense. You cannot demean the
seriousness of what it is that you have done, but the factors
for felony sentencing not only require that I protect the
public, punish you, I also have a responsibility to rehabilitate
you if that is possible, and so judicial release is a privilege. It
is not a right. Based on the factors outlined in 2929.20
subsection (J), I am going to give you this opportunity.
(Nov. 22, 2013 Tr. 11-13.) The trial court's judgment entry granting appellee judicial
release did not include additional findings or factors.
{¶ 12} The trial court did not comply with R.C. 2929.20(J). With regard to R.C.
2929.20(J)(1)(a), the trial court's comments merely suggest the court's belief that a
sanction other than a prison term would adequately punish appellee and protect the
public from future criminal violations by appellee. The trial court found that appellee was
not likely to reoffend; however, the court did so without direct reference to the recidivism
factors set forth in R.C. 2929.12(D) and (E), and without listing the R.C. 2929.12 factors
that were presented at the hearing as required by R.C. 2929.20(J)(2). With regard to R.C.
2929.20(J)(1)(b), the trial court told appellee that he could not demean the seriousness of
his crimes. The trial court did not expressly find that a sanction other than a prison term
would not demean the seriousness of appellee's offenses. Furthermore, the court did not
reference or engage in any weighing of the seriousness factors that appear in R.C.
2929.12(B) and (C). The only R.C. 2929.12 factor listed by the trial court was one
indicating that appellee's conduct was more serious than conduct normally constituting
the offenses. See R.C. 2929.12(B)(2) ("The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.").
{¶ 13} R.C. 2929.20(J) requires a trial court to make a very specific set of findings
before the court can grant judicial release to an individual imprisoned for a first or second
degree felony, and those findings must be made on the record. State v. Kelley, 10th Dist.
No. 08AP-118, 2008-Ohio-3828, ¶ 10; Orms at ¶ 11. Additionally, R.C. 2929.20(J)
requires the trial court to make the findings with reference to factors in R.C. 2929.12, and
the court must justify its findings with an analysis of the relevant R.C. 2929.12 factors.
Williams at ¶ 11. The trial court did not make findings or identify and discuss factors to
the extent required by R.C. 2929.20(J). Therefore, the trial court was precluded from
No. 14AP-34 7
granting appellee judicial release. Orms at ¶ 11; R.C. 2929.20(J)(1). The decision to grant
appellee judicial release was contrary to law. Accordingly, we sustain the state's first and
second assignments of error.
{¶ 14} Under the state's third assignment of error, it argues the trial court failed to
consider appellee's "pattern of crimes in this very case" when ruling on the motion for
judicial release. (State's Brief, 23.) We are remanding this matter for the trial court to re-
evaluate appellee's motion in compliance with the law. It is appropriate for the trial court
to address the state's concerns in the first instance on remand.
{¶ 15} Under the state's fourth assignment of error, it urges us to rule that the
record does not support granting appellee judicial release. The state asks that we remand
this matter with instructions to the trial court to deny appellee's motion. We decline to do
so. The trial court is in the best position to assess whether the facts of this case support
granting judicial release pursuant to R.C. 2929.20. Until the trial court complies with
R.C. 2929.20(J), we are unable to determine whether or not the trial court erred in
granting appellee's motion for judicial release. State v. Hunt, 10th Dist. No. 04AP-
1177, 2005-Ohio-3144, ¶ 13.
{¶ 16} For these reasons, the state's third and fourth assignments of error are
rendered moot.
IV. CONCLUSION
{¶ 17} The state's first and second assignments of error are sustained. The state's
third and fourth assignments of error are rendered moot. The judgment of the Franklin
County Court of Common Pleas is reversed and this matter remanded to that court for
additional proceedings in accordance with law and consistent with this decision.
Judgment reversed and
cause remanded.
SADLER, P.J., and CONNOR, J., concur.