[Cite as State v. Anderson, 2016-Ohio-2704.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
: Case No. 15CA28
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
JON ANDERSON, :
:
Defendant-Appellant. : Released: 04/21/16
_____________________________________________________________
APPEARANCES:
Brian A. Smith, Akron, Ohio, for Appellant.
Kevin A. Rings, Washington County Prosecuting Attorney, and Nicole
Tipton Coil, Assistant Washington County Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Jon Anderson appeals his sentence in the Washington County
Court of Common Pleas, Juvenile Division, after he was convicted of
contributing to the unruliness of a minor, R.C. 2919.24(A)(2), a
misdemeanor of the first degree. On appeal, Appellant asserts the trial court
erred and abused its discretion by sentencing him to a thirty-five day jail
sentence. Upon review, we find no merit to Appellant’s argument.
Accordingly, we overrule Appellant’s sole assignment of error and affirm
the judgment of the trial court.
Washington App. No. 15CA28 2
FACTS
{¶2} This is a misdemeanor criminal case which originated in the
Washington County Court of Common Pleas, Juvenile Division. On
December 22, 2014, Appellant was charged with a single count of
contributing to the unruliness or delinquency of a minor, a misdemeanor of
the first degree and violation of section 2919.24(A)(2) of the Ohio Revised
Code. The charge stemmed from Appellant’s failure to see that his minor
child was attending school. According to the school’s records, the child
missed 35 days during the 2014-2015 school year.
{¶3} On June 19, 2015, Appellant pleaded guilty to the single count
contained in the complaint. The matter was reset for sentencing in order to
obtain a presentence investigation. On July 23, 2015, Appellant was
sentenced to 35 days of incarceration, with 20 of those days to be served
consecutively. The entry of sentence is dated July 29, 2015. Appellant later
obtained a personal recognizance bond effectively staying 15 of those days
pending appeal.
{¶4} This timely appeal followed. Where relevant, additional facts
will be related below.
Washington App. No. 15CA28 3
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT’S SENTENCE OF APPELLANT TO
THIRTY-FIVE DAYS IN JAIL WAS AN ABUSE OF
DISCRETION.”
A. STANDARD OF REVIEW
{¶5} We review a misdemeanor sentence for an abuse of discretion.
State v. Farmer, 5th Dist. Licking No. 15CA0044, 2015-Ohio-5434, ¶ 93.
See, State v. Fankle, 31 N.E.3d 1290, 2015-Ohio-1581 (2nd Dist.); State v.
Marcum, 99 N.E.2d 1, 2013-Ohio-2447, (4th Dist.) ¶ 22. A trial court
abuses its discretion when it makes a decision that is unreasonable,
unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980).
B. LEGAL ANALYSIS
{¶6} Appellant was convicted of R.C. 2919.24(A)(2), contributing
to unruliness or delinquency of a child, which provides in pertinent part as
follows:
“(A) No person, including a parent, guardian, or other custodian
of a child, shall do any of the following:
***
(2) Act in a way tending to cause a child or a ward of the
juvenile court to become an unruly child, as defined in section
2151.022 of the Revised Code, or a delinquent child, as defined
in section 2152.02 of the Revised Code * * *.”
Washington App. No. 15CA28 4
{¶7} Pursuant to R.C. 2151.022, an unruly child is defined as
follows:
“As used in this chapter, "unruly child" includes any of the
following:
(B) Any child who is an habitual truant from school and who
previously has not been adjudicated an unruly child for being
an habitual truant * * *.”
{¶8} Contributing to the unruliness of a minor is a misdemeanor of
the first degree. R.C. 2919.24(B). The maximum penalty for a
misdemeanor of the first degree is 180 days. R.C. 2929.24(A)(1). Appellant
was sentenced to 35 days in jail. Appellant argues the trial court’s sentence
was an abuse of discretion because: (1) the sentence was far in excess of the
average sentence for cases of this type; (2) the facts do not support the trial
court’s imposition of the sentence; (3) the number of days chosen by the trial
court was arbitrary; and (4) the sentence was unconscionable, given its
harmful effect on Appellant’s employment. We begin by reviewing the
statutory guidelines applicable to misdemeanor sentencing.
{¶9} The guidelines for misdemeanor sentencing are substantially
similar to those applied in felony sentencing. Farmer, supra, at ¶ 90.
Strongsville v. Jaeger, 8th Dist. Cuyahoga No. 99579, 2013-Ohio-4476, ¶ 4.
The court must be guided by the purposes of misdemeanor sentencing,
which are “to protect the public from future crime by the offender and others
Washington App. No. 15CA28 5
and to punish the offender.” See R.C. 2929.21(A); Marcum, supra, at ¶ 23.
To achieve those purposes the sentencing court shall consider the impact of
the offense upon the victim and the need for changing the offender's
behavior, rehabilitating the offender, and making restitution to the victim for
the offense, the public, or the victim and the public. Id. R.C. 2929.21(B)
further provides that a sentence imposed for a misdemeanor shall be
reasonably calculated to achieve the two overriding purposes of
misdemeanor sentencing and consistent with sentences imposed for similar
offenses committed by similar offenders.
{¶10} When determining the appropriate sentence, the court must
consider the factors listed in R.C. 2929.22(B), including the nature and
circumstances of the offense or offenses and whether the circumstances
indicate that the offender has a history of persistent criminal activity and
poses a substantial risk of reoffending. See R.C. 2929.22(B)(1). Farmer,
supra, at ¶ 90. However, there is no requirement that a trial court in
sentencing on misdemeanor offenses specifically state its reasons on the
record. Id. State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005-Ohio-
1046, ¶ 20. See also, Fankle, supra, at ¶ 18. “ ‘When the court's sentence is
within the statutory limit, a reviewing court will presume that the trial judge
followed the standards in R.C. 2929.22, absent a showing to the contrary.’ ”
Washington App. No. 15CA28 6
Cleveland v. Go Invest Wisely, 8th Dist. Cuyahoga Nos. 95172, 95173,
95174, 95175, 95176, and 95177, 2011-Ohio-3047, ¶ 10, quoting State v.
Downie, 183 Ohio App.3d 665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 48 (7th
Dist.). See also, Fankle, supra, at ¶ 18.
{¶11} Appellant first argues his sentence was an abuse of discretion
because it was far in excess of what was described at his arraignment as a
“typical normal sentence” of “about anywhere from three to ten days actual
jail and maybe some suspended jail.” Appellant admits the trial court is not
bound by this particular sentence. However, Appellant argues there are no
unusual facts in this case which would justify the longer sentence. Appellee
responds that although the sentence was in excess of the typical sentence, it
was within the statutory guidelines.1
{¶12} In State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826,
844 N.E. 2d 372 (2nd Dist.), the appellate court observed that sentences
imposed for misdemeanor offenses must be “consistent with sentences
imposed for similar offenses committed by similar offenders.” Id. at ¶ 51.
R.C. 2929.21(B). To that extent, prior sentences the court imposed in like
cases are precedent, but they are not necessarily binding. Id. The court must
also seek to achieve the two overriding purposes of misdemeanor sentencing
1
Appellee also argues Appellant agreed to the sentence. At the June 19, 2015 plea hearing, the
trial court advised it was its policy that Appellant would do a day of jail for every day his child
missed school.
Washington App. No. 15CA28 7
in R.C. 2929.21(A), which requires considering the impact of the offense on
the victim, the need for changing the offender's behavior, rehabilitating the
offender, and making restitution to the victim, as well as the other purposes
of R.C. 2929.21(B), reflecting the seriousness of the offense and its impact
on the victim. Id.
{¶13} In Broadview Hts. v. Misencik, 8th Dist. Cuyahoga No.
100196, 2014-Ohio-1518, ¶ 20, the appellate court noted proportionality in
sentencing does not mean that sentences for similar crimes must be identical.
State v. Sarigianopoulos, 7th Dist. Mahoning No. 12 MA 141, 2013-Ohio-
5772, ¶ 11. Such uniformity would obviate judicial discretion and
undermine the purposes and principles of sentencing. The goal of
proportionality is consistency rather than uniformity. State v.
Georgakopoulos, 8th Dist. Cuyahoga No. 81934, 2003-Ohio-4341, ¶ 26.
Consistency requires a trial court weigh the same factors for each defendant
in order to result in an outcome that is rational and predictable. Id.
Seriousness and recidivism factors account for many of the variations in
sentences for similar offenses.
{¶14} In Johnson, supra, the Second District Appellate Court
concluded at ¶ 53:
“ [I]f defendant intends to argue that the sentence imposed in a
particular misdemeanor case is so inconsistent with sentences
Washington App. No. 15CA28 8
imposed by that same court for similar offenses committed by
similar offenders as to be disproportionately harsh, defendant
must object or otherwise raise that issue in the trial court,
affording that court an opportunity to correct the question.
Having failed to do that here, defendant has waived all but plain
error. No plain error is demonstrated.”
{¶15} Similarly, in Misencik, supra, the defendant argued that his
sentence was disproportionately severe compared to sentences in similar
cases. He contended the court violated R.C. 2929.21(B), which mandates
that misdemeanor sentences “be consistent with sentences imposed for
similar offenses by similar offenders.” In an attempt to show that his
sentence was not consistent with those in similar cases, Misencik cited three
separate cases involving varying sentences. The Eighth District Appellate
Court noted:
“None of the information about those other cases is contained
in the record of the instant appeal because they were not first
presented to the trial court. * * * [A]lthough a defendant cannot
be expected to produce his * * * own database to demonstrate
the alleged inconsistency, the issue must * * * be raised in the
trial court and some evidence, however minimal, must be
presented to the trial court to provide a starting point for
analysis and to preserve the issue for appeal. State v. Roberts,
8th Dist. Cuyahoga No. 84070, 2005-Ohio-28, ¶ 60. Therefore,
because Misencik failed to raise this issue in the trial court, he
has forfeited the argument on appeal.”
{¶16} In the case sub judice, the prosecutor stated “Similarly situated
cases is three days in jail.” The prosecutor requested the trial court impose a
similar sentence, but not more than 20 days which was the number of days
Washington App. No. 15CA28 9
the State could prove that calls were made to Appellant’s home, to make him
aware his son was not in school. However, the trial court imposed the 35-
day sentence. The trial court also asked Appellant and the attorneys if there
was anything else they wished to say. At that point, no one voiced an
objection to preserve the issue for appellate review. As such, we agree, as in
the previous cases cited, that Appellant has forfeited this argument on
appeal.
{¶17} Appellant also argues the facts do not support the trial court’s
imposition of sentence. Appellant points out that even the prosecutor
informed the trial court that Appellant was “extremely remorseful.” The
prosecutor also stated “We do not want to see him lose his job as a result of
this.” Our review demonstrates the trial court engaged in a colloquy with
Appellant which covered various topics including Appellant’s workforce
training and past employment, his son’s asthma problem and therapy for
anxiety, and the facts that the son was now in his mother’s custody in West
Virginia and was planning to obtain a GED.
{¶18} As indicated above, there is no requirement that judges
sentencing misdemeanor offenders state their reasons on the record. Unlike
reviewing judges who must look at a cold record, a trial judge is in a
superior position to evaluate the impact of the evidence because he sees the
Washington App. No. 15CA28 10
mannerisms and reactions of the jurors, witnesses, parties, and attorneys.
Ede v. Atrium, 71 Ohio St.3d 124, 129, 642 N.E.2d 365 (1994)(Wright, J.,
dissenting). While Appellant believes the trial court should have taken his
remorse and job situation into account, we defer to the trial court’s judgment
as to the weight to be given “any other factors that are relevant to achieving
the purposes and principles of sentencing” set forth in R.C. 2929.21.
{¶19} Appellant also characterizes the trial court’s sentence as
arbitrary in that the trial court arrived at the number of days in Appellant’s
sentence by calculating the number of school days Appellant’s minor child
missed. Appellant entered his plea on June 19, 2015. The trial court
inquired as to the voluntariness of Appellant’s plea and then stated:
“The only promise that I know that’s been made to you is that,
it’s my strong belief that you’ll do every day that your child
didn’t do school, but Attorney Brum and Attorney Graham
believe- Attorney Brum believes it’s 15 days; Attorney Graham
believes it’s 20 days, that you actually received a call that your
child was not in school. * * * So the sentence most likely will
be between 15 and 20 days but it will be whatever my
department ultimately determines that you received a call and
didn’t have your child in school, okay? That will be up to the
pre-sentence.”
{¶20} On July 23, 2015 at sentencing, the assistant prosecutor
informed the trial court that Appellant’s son had missed 35 days of school,
and that there were call records received and answered in Appellant’s home
at around 20 days. The prosecutor requested the trial court impose a
Washington App. No. 15CA28 11
sentence similar to others received for the conviction of contributing, but not
more than 20 days. Appellant’s attorney concurred with the prosecutor’s
assessment of the situation and recommendation of sentence.
{¶21} The trial court then engaged in a colloquy with Appellant,
which concluded with the trial court stating: “You’ve got 35 days. That’s
how many days that kid missed.” Based on the evidence contained in the
hearing transcripts, we do not find the trial court’s sentence to be arbitrary.
The trial court made Appellant aware of his policy on sentencing this
particular offense on June 19, 2015, when he told Appellant “It’s my strong
belief that you’ll do every day your child didn’t do school.”
{¶22} Appellant contends that the colloquy between him and the trial
court reveals that the trial court was unreceptive to any statements Appellant
attempted to make in mitigation. Appellant concludes that the trial court’s
comments reveal the court drew negative conclusions and demonstrated
overt prejudice on the part of the trial court. While the trial court’s
comments suggest the court was frustrated with Appellant, the trial court
was in the better position to evaluate Appellant’s demeanor and credibility
when he spoke. Again, on this record, it is difficult to interpret the actual
tenor of the exchange between Appellant and the trial court. We do not find
Washington App. No. 15CA28 12
an abuse of discretion in Appellant’s sentencing, based on the trial court’s
comments.
{¶23} Appellant further argues the trial court’s sentence was
unconscionable, given its extremely harmful effect on Appellant’s
employment prospects. Appellant argues that the trial court’s harsh sentence
ultimately hurt appellant’s child by depriving Appellant of the means of
obtaining more lucrative employment and providing his child with greater
financial support. However, we find no evidence in the record to indicate
that this has in fact occurred, and thus, we find this argument speculative at
best.
{¶24} Finally, Appellant also argues that although he was allowed to
speak at the sentencing hearing, the trial court disregarded his statements
and demonstrated prejudice against him, effectively denying him due
process. We note Appellant has not raised the due process issue as a
separate assignment of error as required by App.R. 16, and he attempts to
argue it within the context of his sole assignment of error that his sentence
was an abuse of discretion, in contravention of App.R. 12(A)(2).
Furthermore, constitutional arguments not presented in the trial court are
deemed to be waived and may not be raised for the first time on appeal.
State v. Markin, 10th Dist. Franklin No. 01AP-149 Ohio App.3d 274, 776
Washington App. No. 15CA28 13
N.E.2d 1163, 2002-Ohio-4326, ¶ 52; Baker v. W. Carrollton, 64 Ohio St.3d
446, 448, 597 N.E.2d 74 (1992). As such, we decline to consider
Appellant’s due process argument.
{¶25} Given that Appellant’s sentence is well-within the statutory
guidelines for a misdemeanor of the first degree, and absent evidence to the
contrary, we presume the trial court followed the sentencing guidelines set
forth in R.C. 2929.22, we find the trial court did not abuse its discretion with
regard to Appellant’s 35-day sentence. For the foregoing reasons, we find
no merit to Appellant’s sole assignment of error which is hereby overruled.
The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Washington App. No. 15CA28 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court, Juvenile Division, to carry
this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment Only.
Harsha, J.: Dissents.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
State v. Anderson
Combined Opinion