State v. Nichter

[Cite as State v. Nichter, 2016-Ohio-7268.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellant, :
No. 15AP-886
v. : (C.P.C. No. 10CR-7383)

Daniel J. Nichter, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on October 11, 2016

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellant.

On brief: Taft Stettinius & Hollister LLP, David H.
Thomas, and Kathryn S. Wallrabenstein, for appellee.

APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from a decision of the Franklin
County Court of Common Pleas granting the request of defendant-appellee, Daniel J.
Nichter, for judicial release. For the reasons set forth below, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 20, 2010, appellant filed an indictment charging appellee
with 1 count of engaging in a pattern of corrupt activity under R.C. 2923.32, 1 count of
theft under R.C. 2913.02, 22 counts of identity fraud under R.C. 2913.49, 20 counts of
forgery under R.C. 2913.31, and 4 counts of receiving stolen property under R.C. 2913.51.
The indictment alleged that appellee had held himself out as several different licensed
No. 15AP-886 2

residential real estate appraisers and forged appraisals in their names, resulting in a
number of banks lending mortgage loans valued over $1,000,000.
{¶ 3} Pursuant to a plea agreement, appellee pled guilty to three counts of identity
fraud, each a second-degree felony under R.C. 2913.49, on November 17, 2011. The
parties jointly recommended to the trial court sentences of four years on each count, to
run concurrently.
{¶ 4} On January 13, 2012, the trial court accepted appellee's plea on three counts
of identity theft and dismissed the remaining counts. Appellee was sentenced to four
years of imprisonment on each count, all to be served concurrently, and ordered him to
write letters of apology to the victims.
{¶ 5} After serving seven months, appellee filed a motion for judicial release on
August 12, 2012. The trial court overruled the motion but indicated that it would
reconsider the request after appellee had served one year of his sentence.
{¶ 6} Appellee filed another motion for judicial release on May 24, 2013. The trial
court held a hearing on November 22, 2013 to consider the motion. Appellant urged the
trial court to deny the motion based on the seriousness of the crime. The trial court
granted the motion and granted appellee judicial release, and appellant appealed.
{¶ 7} We reversed, holding that the trial court had failed to make the "very
specific set of findings" required by R.C. 2929.20(J) and to "justify its findings with an
analysis of the relevant R.C. 2929.12 factors." State v. Nichter, 10th Dist. No. 14AP-34,
2014-Ohio-4226, ¶ 13 ("Nichter I").
{¶ 8} The trial court held a second hearing on November 14, 2014, at which time
it read the statutory language into the record and granted appellee's request. Appellant
appealed the decision of the trial court citing the seriousness of the offense.
{¶ 9} Once again, we reversed. State v. Nichter, 10th Dist. No. 15AP-40, 2015-
Ohio-3489 ("Nichter II"). We noted that the trial court "read verbatim" the language of
the statute and "acknowledged the required statutory findings" but "failed to actually
make the findings required" by the statute. Id. at ¶ 8-9.
{¶ 10} The trial court held a third hearing on September 10, 2015. Appellant again
asserted that granting judicial release would demean the seriousness of the offenses. One
No. 15AP-886 3

of appellee's victims, Dirk Reece, described the damage to his professional reputation
caused by appellee's offenses and informed the court that appellee had delayed in writing
a letter of apology that the court had required.
{¶ 11} After reviewing the procedural history of the case, the trial court went
through each of the statutory factors under R.C. 2929.12 and determined whether or not
they applied to appellee. The court cited appellee's previous lack of a criminal record, its
conclusion that appellee was unlikely to offend again, the restitution that appellee had
been making, and appellee's "genuine remorse." (Sept. 10, 2015 Tr. at 17.)
{¶ 12} After emphasizing the purposes of the felony sentencing statute, the trial
court concluded with the following observations:
This court continues to be sensitive to the life-changing
challenges that Mr. Reece and the other victims in this case
have faced and will continue to face, and does not take lightly
the pain, shame, and embarrassment that each has suffered.

However, this court also believes that [appellee] has learned
an invaluable lesson from the almost two years of
incarceration that he has served, and it should be clear to him
based on this court's intolerance for those who fail to abide by
its orders, that this court would have no issue or qualm with
returning [appellee] to the institution should he fail to abide
by the laws of the state and the conditions of his community
control.

This court now believes that [appellee] should be permitted to
begin the phase of this process that is contemplated by
statutory requirements in setting out the purposes and
principles of felony sentencing, making restitution to his
victims and to the community that trusted him to serve it
consistent with the standards associated with his profession.

[Appellee's counsel], is there anything else that you would like
to place on the record?

[APPELLEE'S COUNSEL]: Your Honor, out of an abundance
of caution, may I make an inquiry of the court, so we have a
full record here. The court may have said this, but is the court
finding pursuant to 2929.20(J)(1)(B), that judicial release in
this case did not demean the seriousness of [appellee's]
conduct, and I assume the court adopts its reasoning and its
analysis of 2929.12 factors in making such a finding?
No. 15AP-886 4

THE COURT: Correct. Pursuant to Revised Code Sections
2929.20(J)(1)(B), the court will find that a sanction other than
a prison term would not demean the seriousness of the
offense.

(Tr. at 25-26.)
{¶ 13} Appellant appealed to this court from the judgment of the trial court.
II. ASSIGNMENT OF ERROR
{¶ 14} Appellant assigns the following as error:
THE TRIAL COURT ERRED IN GRANTING JUDICIAL
RELEASE IN THE ABSENCE OF RECORD SUPPORT FOR
THE NECESSARY FINDING RELATED TO SERIOUSNESS.

III. STANDARD OF REVIEW
{¶ 15} As a matter of right, appellant may appeal a trial court's decision modifying
a previously imposed sentence for a felony of the first or second degree by a grant of
judicial release. R.C. 2953.08(B)(3). The standard or 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), which provides as follows:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the
sentencing court.

The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court
for resentencing. The appellate court’s standard for review is
not whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the
following:

(a) That the record does not support the sentencing court's
findings under * * * division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.
No. 15AP-886 5

{¶ 16} Appellant's assignment of error alleges only that the trial court's findings
regarding the factors listed in R.C. 2929.12(C) are clearly and convincingly unsupported
by the evidence in the record. R.C. 2953.08(G)(2)(a). Appellant does not challenge the
trial court's decision as being clearly and convincingly "contrary to law" under R.C.
2953.08(G)(2)(b).1 Accordingly, we will confine our analysis to the argument made by the
assignment of error. App.R. 12(A) and 16.
{¶ 17} In State v. Marcum, __ Ohio St.3d __, 2016-Ohio-1002, ¶ 22, the Supreme
Court of Ohio recently construed R.C. 2953.08(G)(2)(a) in the context of an appeal from a
trial court determination regarding judicial release. The court held that "R.C.
2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find by
clear and convincing evidence that the record does not support any relevant findings
under '* * * section 2929.20 of the Revised Code.' " Id., quoting R.C. 2953.08(G)(2)(a),
citing State v. Belew, 140 Ohio St.3d 221, 2014-Ohio-2964, ¶ 12 (Lanzinger, J., dissenting
from the decision to dismiss the appeal as having been improvidently accepted).
{¶ 18} "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." Id., quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus.
IV. ANALYSIS
{¶ 19} When considering a defendant's request for judicial release, R.C. 2929.20(J)
dictates the trial court's analysis. The statute provides as follows:
(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:

1In the context of felony sentencing under R.C. 2953.08(G)(2)(b), "[a] sentence is contrary to law when it
imposes a sentence that is not within the statutory range," State v. Scott, 8th Dist. No. 103696, 2016-
Ohio-5929, ¶ 6, citing State v. Younker, 2d Dist. No. 26414, 2015-Ohio-2066, or when the sentencing
decision " 'manifestly ignores an issue or factor which a statute requires a court to consider.' " State v.
English, 2d Dist. No. 26337, 2015-Ohio-1665, ¶ 21, quoting State v. Lofton, 2d Dist. No. 19852, 2004-
Ohio-169, ¶ 11.
No. 15AP-886 6

(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 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.

{¶ 20} As set out above, in Nichter I, we ordered the trial court to make the "very
specific set of findings" required by R.C. 2929.20(J) and to "justify its findings with an
analysis of the relevant R.C. 2929.12 factors." Id. at ¶ 13. In Nichter II, we ordered the
trial court to "actually make the findings required by R.C. 2929.20(J)(1) " and "consider
the factors in R.C. 2929.12(B) and (C), which address the seriousness of the offender's
conduct." Id. at ¶ 9. By its assignment of error, appellant concedes that the trial court has
complied with this court's remand order by making both of the findings required by R.C.
2929.20(J)(1) and by considering the factors in R.C. 2929.12(B) and (C), which address
the seriousness of the offender's conduct. Appellant argues, however, the record clearly
and convincingly fails to support the trial court's finding under R.C. 2929.20(J)(1)(b), that
a sanction other than a prison term would not demean the seriousness of the offense.
More particularly, appellant claims that the statutory mitigating factors that the trial court
found to exist in this case are clearly and convincingly unsupported by the record.
Accordingly, appellant maintains that the trial court committed reversible error in finding
that statutory factors indicating that the eligible offender's conduct in committing the
offense was less serious than conduct normally constituting the offense outweighed the
No. 15AP-886 7

factors indicating that appellee's conduct was more serious than conduct normally
constituting the offense. We agree.
{¶ 21} R.C. 2929.12 lists the factors that a trial court must consider in determining
the seriousness of the offender's conduct. R.C. 2929.12(B), which sets forth the "more
serious" factors, provides as follows:
The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and
any other relevant factors, as indicating that the offender's
conduct is more serious than conduct normally constituting
the offense:

(1) The physical or mental injury suffered by the victim of the
offense due to the conduct of the offender was exacerbated
because of the physical or mental condition or age of the
victim.

(2) The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.

(3) The offender held a public office or position of trust in the
community, and the offense related to that office or position.

(4) The offender's occupation, elected office, or profession
obliged the offender to prevent the offense or bring others
committing it to justice.

(5) The offender's professional reputation or occupation,
elected office, or profession was used to facilitate the offense
or is likely to influence the future conduct of others.

(6) The offender's relationship with the victim facilitated the
offense.

(7) The offender committed the offense for hire or as a part of
an organized criminal activity.

(8) In committing the offense, the offender was motivated by
prejudice based on race, ethnic background, gender, sexual
orientation, or religion.

(9) If the offense is a violation of section 2919.25 or a
violation of section 2903.11, 2903.12, or 2903.13 of the
Revised Code involving a person who was a family or
No. 15AP-886 8

household member at the time of the violation, the offender
committed the offense in the vicinity of one or more children
who are not victims of the offense, and the offender or the
victim of the offense is a parent, guardian, custodian, or
person in loco parentis of one or more of those children.

(Emphasis added.)
{¶ 22} The trial court found that the first, seventh, eighth, and ninth factors were
not present. Regarding the second factor, R.C. 2929.12(B)(2), concerning "serious
physical, psychological, or economic harm as a result of the offense," the trial court stated:
Without question, that factor is present. I have been honored
to hear from Mr. Reece on several occasions indicating the
hardship that he has endured because of [appellee's] choices.
The court will find that there has been both psychological and
economic harm that the victim has suffered.

(Tr. at 18-19.)2
{¶ 23} The trial court found the third factor, R.C. 2929.12(B)(3), which asks
whether the "offender held a public office or position of trust in the community, and the
offense related to that office or position," to be relevant. The trial court stated:
[Appellee] was a licensed real estate appraiser and mortgage
broker in this state and had been permitted by state executive
agencies to perform work within certain professional
standards. He did hold a position of trust in the community.

(Tr. at 19.)
{¶ 24} The trial court found the fourth factor to be relevant as well. This factor,
R.C. 2929.12(B)(4), concerns whether "[t]he offender's occupation, elected office, or
profession obliged the offender to prevent the offense or bring others committing it to
justice." The trial court stated:
Based on the facts of this case, it is clear to the court that
[appellee] had access to these electronic signatures that
allowed him to prepare these fraudulent appraisals, and as a
licensed broker and appraiser, the court would find that he
would have an obligation to prevent that kind of an offense.

2 Mr. Reece closed his remarks by stating: "on behalf of myself, the other victim in this case, the other
unknown victims, all of these legal minds in here agreed that four years was a reasonable time for
[appellee] to serve for adequate punishment and rehabilitation. On behalf of all of the victims in this case,
I ask Your Honor to impose the original sentence." (Tr. 6-7.)
No. 15AP-886 9

(Tr. at 19.)
{¶ 25} The fifth factor, R.C. 2929.12(B)(5), which asks if appellee's "professional
reputation or occupation, elected office, or profession was used to facilitate the offense or
is likely to influence the future conduct of others," was found partially applicable. The
trial court stated:
While the court will not find that [appellee's] conduct is likely
to influence the future conduct of others, the court will find
that his occupation is what allowed him to have access to
those electronic signatures.

(Tr. at 20.)
{¶ 26} The trial court found the sixth factor, R.C. 2929.12(B)(6), concerning
whether "[t]he offender's relationship with the victim facilitated the offense," to be
relevant:
In the presentence investigation report there is a statement
that [appellee] was working with them. The court is unclear
whether that statement means that he worked directly with
Mr. Reece and Ms. Goldsbury, or whether they worked in the
same profession. But, again, we do know that [appellee] had
access to those electronic signatures.

(Tr. at 20.)
{¶ 27} After this analysis, the trial court turned to consideration of the "less
serious" factors under R.C. 2929.12(C). The statute provides:
The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and
any other relevant factors, as indicating that the offender's
conduct is less serious than conduct normally constituting
the offense:

(1) The victim induced or facilitated the offense.

(2) In committing the offense, the offender acted under
strong provocation.

(3) In committing the offense, the offender did not cause or
expect to cause physical harm to any person or property.
No. 15AP-886 10

(4) There are substantial grounds to mitigate the offender's
conduct, although the grounds are not enough to constitute a
defense.

(Emphasis added.)
{¶ 28} The trial court found that the first factor was not present. However, the trial
court found that the second, third, and fourth factors were present. Regarding the second
factor, R.C. 2929.12(C)(2), which asks whether the defendant "acted under strong
provocation," the trial court stated:
From the defendant's perspective, that is present. He stated
again in his presentence report that he was in dire financial
straits, and while the court would never find that this was a
right choice to make, from [appellee's] perspective, he
believed that he was acting under strong provocation based on
his dire financial straits.

(Tr. at 22.)
{¶ 29} With regard to the third factor, which applies if "the offender did not cause
or expect to cause physical harm to any person or property," the trial court found that it
was also present. R.C. 2929.12(C)(3). The trial court found that there was "no physical
harm to any of the victims involved in this case." (Tr. at 22.). Finally, the court
considered the fourth factor, R.C. 2929.12(C)(4), which asks whether "[t]here are
substantial grounds to mitigate the offender's conduct, although the grounds are not
enough to constitute a defense." Without identifying any particular grounds for
mitigation, the trial court found that this factor was "present." (Tr. at 22.) The trial court
then concluded as follows:
Again, after balancing the factors, the court finds and
concludes that the defendant's conduct is less serious than
conduct normally constituting the offense.

(Tr. at 22.)
{¶ 30} In order for the trial court to find that a sanction other than a prison term
would not demean the seriousness of the offense, the trial court was required to weigh the
factors indicating that appellee's conduct in committing identity fraud was less serious
than conduct normally constituting identity fraud against the factors indicating that the
his conduct was more serious than conduct normally constituting that offense. R.C.
No. 15AP-886 11

2929.20(J)(1)(b). In this instance, even though the trial court determined that four of the
statutory "more serious" factors were present, the trial court concluded that those factors
were outweighed by the three mitigating factors that were present. As noted above, the
trial court listed three statutory mitigating factors in support of a finding that appellee's
conduct was less serious than the conduct normally constituting identity fraud: the
absence of physical harm, strong provocation, and "substantial grounds to mitigate the
offender's conduct, although the grounds are not enough to constitute a defense." (Tr. at
22.) Based on these factors, the trial court found that a sanction other than prison would
not demean the seriousness of the offense. Appellant argues that this finding is clearly
and convincingly unsupported by the evidence because the statutory mitigating factors
identified by the trial court were either not present at all or were of dubious value in
mitigation of appellee's conduct. We agree.
A. Strong Provocation
{¶ 31} The trial court relied on a statement attributed to appellee in the
presentencing report as the factual basis for its finding that appellee committed identity
fraud under "strong provocation." The statement reads, in relevant part, as follows:
I was in dire straights [sic] financially and could not afford my
monthly bills. I used someone else's electronic signature on
appraisals. I did it to make money.

(Presentence Investigation Report at 4.)
{¶ 32} R.C. 2929.12 does not define the term "strong provocation"; however, under
Ohio law, "serious provocation" may reduce the degree of certain violent offenses. See
R.C. 2903.03(A); 2903.12(A). For example, "[a] defendant on trial for murder must show
by a preponderance of the evidence that he or she acted under the influence of sudden
passion or in a sudden fit of rage, brought on by the victim's serious provocation, in order
to be convicted of voluntary manslaughter rather than murder." (Emphasis added.) State
v. McKinzie, 10th Dist. No. 00AP-1182 (June 5, 2001), citing State v. Rhodes, 63 Ohio
St.3d 613, 619 (1992). " '[S]erious provocation' " is provocation that is " 'reasonably
sufficient to bring on extreme stress and * * * reasonably sufficient to incite or to arouse
the defendant into using deadly force.' " Id., quoting State v. Deem, 40 Ohio St.3d 205
(1988), paragraph five of the syllabus.
No. 15AP-886 12

{¶ 33} Under R.C. 2929.04(B)(2), the existence of "strong provocation" is one of
the factors the trial court may consider in mitigation of the death penalty. R.C.
2929.04(B) provides that when certain statutory aggravating circumstance are found, the
court:
[S]hall consider, and weigh against the aggravating
circumstances proved beyond a reasonable doubt, the nature
and circumstances of the offense, the history, character, and
background of the offender, and all of the following factors:

***

(2) Whether it is unlikely that the offense would have been
committed, but for the fact that the offender was under
duress, coercion, or strong provocation.

{¶ 34} The statutory law authorizes a trial court to consider provocation as a
mitigating factor in cases where the conduct of the victim has incited or aroused the
offender to commit an offense of violence. Black's Law Dictionary defines "provocation"
as "[t]he act of inciting another to do something, esp. to commit a crime." Black's Law
Dictionary 1421 (10th Ed.2009).
{¶ 35} There is no claim by appellee that any of his victims caused or contributed
to his dire financial straits and inability to afford his monthly bills. Rather, the evidence
in the record clearly and convincingly supports a finding that appellee's financial
difficulties were caused by his own chronic overspending. The presentencing
investigation contains the following information under the heading "Finances":
In 06/11, the offender declared bankruptcy and approximately
$200,000.00 was dismissed in Franklin County. He reports
two prior bankruptcies, one in 1990 in the amount of
$100,000.00 and the other approximately 8 years ago in the
amount of $300,000.00. Currently, he states he is struggling
financially and worries about finances regularly.

(Presentencing Investigation Report at 9.)
{¶ 36} In the absence of any evidence suggesting another cause of appellee's
financial problems, the only reasonable conclusion to draw from this record is that
appellee caused his own dire financial straits by engaging in chronic overspending. See
State v. Bodkins, 2d Dist No. 10-CA-38, 2011-Ohio-1274 (at sentencing, a defendant is
No. 15AP-886 13

entitled to introduce evidence contradicting negative information in the presentencing
investigation). Even if it were permissible on this record to infer that appellee's dire
financial straits and inability to afford his monthly bills arose from circumstances outside
of his control, appellee pointed to no information in the record which would show that he
was provoked by the victims in this case or by any other third party. Nor has appellee
cited a single Ohio authority holding that a finding of "strong provocation" may arise from
the conduct of the offender, and this court has not found any such authority.
{¶ 37} Additionally, in determining whether provocation is reasonably sufficient,
Ohio courts "first apply an objective standard by determining whether a reasonable trier
of fact 'would decide that an actor was reasonably provoked by the victim.' " McKinzie,
quoting State v. Shane, 63 Ohio St.3d 630, 634 (1992). Then, "[i]t is only when the
objective standard is met that the Deem test of the 'emotional and mental state of the
defendant and the conditions and circumstances that surrounded him at the time' must
be considered." Id., quoting Shane at 634.
{¶ 38} Here, the trial court found as follows:
From the defendant's perspective, [provocation] is present.
He stated again in his presentence report that he was in dire
financial straits, and while the court would never find that this
was a right choice to make, from [appellee's] perspective, he
believed that he was acting under strong provocation based on
his dire financial straits.

(Emphasis added.) (Tr. at 22.)
{¶ 39} The trial court's finding that appellee acted under "strong provocation" is
based solely on his subjective belief that his financial difficulties compelled him to commit
the offenses. Consequently, even if it were permissible for the trial court to consider
appellee's self-induced financial difficulties as "strong provocation," appellee's subjective
belief that he acted with provocation does not establish the existence of legally sufficient
provocation.
{¶ 40} Finally, appellee has not cited any Ohio authority holding that an offender's
dire financial straits and inability to afford monthly bills qualifies as provocation to
commit any offense, let alone "strong provocation." At most, appellee's statement at the
presentencing investigation establishes that he was motivated to commit identity fraud by
No. 15AP-886 14

his own selfish need to obtain funds to cover his monthly expenses. The existence of a
motive to commit the offense is not one of the mitigating factors listed under R.C.
2929.12(C).
{¶ 41} Based on the foregoing, we find that the record clearly and convincingly fails
to support the trial court's determination that in committing identity theft appellee acted
with "strong provocation." Thus, the trial court erred when it considered provocation as
one of the factors indicating that appellee's conduct was less serious than conduct
normally constituting identity fraud.
B. Absence of Physical Harm
{¶ 42} The trial court also found that the mitigating factor listed in R.C.
2929.12(C)(3) existed in this case because, in committing identity fraud, appellee "did not
cause or expect to cause physical harm to any person or property." Though the facts
underlying appellee's crimes show that the mitigating factor listed in R.C. 2929.12(C)(3)
exists, we find that this factor is largely irrelevant to the analysis in this case because the
conduct normally constituting identity fraud creates no risk of physical harm to any
person or property. R.C. 2913.49. The fact that appellee, in committing identity fraud,
did not cause or intend to cause physical harm to persons or property does not mean that
his conduct was less serious than conduct normally constituting that offense. See, e.g.,
State v. Smith, 9th Dist. No. 11CA0115-M, 2012-Ohio-2558, ¶ 7 (for a conviction of a
single count of trafficking in drugs, none of the mitigating factors under R.C. 2929.12 are
relevant); State v. McClusky, 6th Dist. No. WD-03-018, 2004-Ohio-85, ¶ 25 (where
defendant is convicted of cocaine possession, whether or not physical harm was intended
by appellant's drug abuse was not a relevant mitigating factor for sentencing). In our
view, the factor listed in R.C. 2929.12(C)(3) is of dubious value in mitigation of appellee's
conduct.
C. Other Substantial Grounds
{¶ 43} The trial court employed the catch-all provision of R.C. 2929.12(C)(4) when
it found that other substantial grounds to mitigate appellee's offenses existed in this case.
Under the applicable standard of review, this court must determine whether the record
supports a finding that a sanction other than prison will not demean the seriousness of
the offense because factors indicating that the eligible offender's conduct in committing
No. 15AP-886 15

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. This court cannot conduct a proper review to
determine whether the record supports the trial court's finding under R.C.
2929.20(J)(1)(b), where the trial court fails to identify one of the mitigating factors it
relied on in conducting the statutory analysis.
{¶ 44} Nor do we consider it appropriate for this court to assume that the trial
court treated appellee's financial problems as a mitigating factor under the catch-all
provision in R.C. 2929.12(C)(4). The trial court expressly stated that it considered
appellee's dire financial straits as "strong provocation" under R.C. 2929.12(C)(2) and did
not identify the other "substantial grounds" on which it relied.
{¶ 45} The Supreme Court recently observed that "R.C. 2953.08(G)(2)(a) compels
appellate courts to modify or vacate sentences if they find by clear and convincing
evidence that the record does not support any relevant findings under '* * * section
2929.20 of the Revised Code.' " Marcum at ¶ 22, quoting R.C. 2943.08(G)(2)(a), citing
Belew at ¶ 12. There is no dispute in this case that four of the "more serious" factors listed
in R.C. 2929.12(B) are present in this case. Because we have determined that the record
clearly and convincingly fails to support the existence of "strong provocation" under R.C.
2929.12(C)(2), and because the existence of the factor listed in R.C. 2929.12(C)(3) is of
dubious value in mitigating appellee's conduct in this case, it is difficult to conceive how
the trial could have found, on this record, that the mitigating factors under R.C.
2929.12(C) outweighed the R.C. 2929.12(B) factors. Nevertheless, because the trial court
expressly relied on other "substantial grounds to mitigate [appellee's] conduct," in making
its finding under R.C. 2929.20(J)(1)(b), but did not identify those grounds, rather than
modify or vacate the trial court's judgment, this matter shall be remanded for the trial
court to expressly identify the other substantial grounds mitigating appellee's conduct on
which it relied and to reweigh the statutory factors in light of this decision. (Tr. at 22.)
{¶ 46} We note that appellant has expressed concern with comments made by the
trial court indicating that it has no intention of reversing its ruling on appellee's motion
for judicial release regardless of this court's review. The law of the case doctrine compels
the trial court to follow the mandates of this court, regardless of any previous statement to
No. 15AP-886 16

the contrary. See Nolan v. Nolan, 11 Ohio St.3d 1, 5 (1984); Hawley v. Ritley, 35 Ohio
St.3d 157, 160 (1988). Moreover, a court of appeals lacks jurisdiction to rule on a motion
to recuse a trial court judge or to pass on the disqualification of a trial court judge. See
R.C. 2701.03.
{¶ 47} For the foregoing reasons, we sustain appellant's sole assignment of error.
V. CONCLUSION
{¶ 48} Having sustained appellant's sole assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas and remand the cause for
further proceedings consistent with this decision.
Judgment reversed;
cause remanded.

LUPER SCHUSTER, J., concurs.
HORTON, J., dissents.
HORTON, J., dissenting.
{¶ 49} Although the majority cites R.C. 2953.08(G)(2) and the definition of "clear
and convincing" found in State v. Marcum, __Ohio St.3d. __, 2016-Ohio-1002, the
standard of review it applies falls far short of the deference required by the authorities
cited below. In fact, I believe that the standard that the majority actually applies is not
only insufficiently deferential to the trial court but, as explained below, contrary to the
Supreme Court of Ohio's controlling interpretation of the language of R.C. 2953.08. For
the following reasons, I respectfully dissent.
{¶ 50} The standard of review that this court must apply to appeals of felony
sentences and sentence modifications arising from judicial release is set forth under R.C.
2953.08(G)(2):
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the
sentencing court.

The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court
for resentencing. The appellate court's standard for review is
not whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this
No. 15AP-886 17

division if it clearly and convincingly finds either of the
following:

(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

(Emphasis added.)
"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."

Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus (construing R.C. 2953.08(G)(2) on appeal of a felony sentence).
{¶ 51} The Eighth District Court of Appeals explained the deference required by
the R.C. 2953.08(G)(2) standard of review as follows:
It is important to understand that the "clear and convincing"
standard applied in R.C. 2953.08(G)(2) is not discretionary.
In fact, R.C. 2953.08(G)(2) makes it clear that "[t]he
appellate court's standard for review is not whether the
sentencing court abused its discretion." As a practical
consideration, this means that appellate courts are
prohibited from substituting their judgment for that of the
trial judge.

It is also important to understand that the clear and
convincing standard used by R.C. 2953.08(G)(2) is written in
the negative. It does not say that the trial judge must have
clear and convincing evidence to support its findings.
Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court's
findings. In other words, the restriction is on the appellate
court, not the trial judge. This is an extremely deferential
standard of review.
No. 15AP-886 18

State v. Venes, 8th Dist. No. 98682, 2013-Ohio-1891, ¶ 20-21 (remanding for
resentencing after trial court's failure to "make separate and distinct findings" required
by R.C. 2929.14(C)(4) before imposing consecutive sentences).
{¶ 52} First, a word about R.C. 2953.08. The first subdivision, R.C. 2953.08(A),
enumerates the grounds under which a defendant may appeal a felony sentence. The
second subdivision, R.C. 2953.08(B), does the same for the state, but also allows the state
to appeal a sentence modification due to judicial release granted under R.C. 2929.20. In
contrast, the statute does not grant a defendant the right to appeal a denial of a request
for judicial release. See R.C. 2953.08(B); State v. Hedgecoth, 1st Dist. No. C-060190,
2007-Ohio-4462, ¶ 9. However, the state may only appeal a sentence modification based
on judicial release if the original sentence "was imposed for a felony of the first or second
degree." R.C. 2953.08(B)(3). This distinction demonstrates an elementary jurisdictional
principle: "the state may appeal in a criminal case only when a statute gives the state
express authority to do so." State v. Thompson, 10th Dist. No. 03AP-841, 2004-Ohio-
3229, ¶ 11, citing Ohio Constitution, Article IV, Section 3(B)(2). Thus, the scope of the
state's right to appeal a sentence modification extends only as far as the statute describes.
{¶ 53} The Supreme Court of Ohio addressed the scope of the state's right to
appeal a sentence modification based on judicial release in State v. Cunningham, 113
Ohio St.3d 108, 2007-Ohio-1245. In Cunningham, a defendant was sentenced to
community control after pleading guilty to a felony of the fifth degree, theft under R.C.
2913.02. Id. at ¶ 2. After the defendant violated the terms of the community control
sentence, the trial court imposed a one-year term of incarceration. Id. Two months after
the sentence began, the defendant filed a motion for judicial release under R.C. 2929.20
but withdrew the motion before the trial court could rule on it. Id. at ¶ 2. After filing a
second motion for judicial release, the defendant also moved the trial court to "reinstate"
the first motion. Id. at ¶ 3. The trial court granted the motion and modified the
defendant's sentence. Id.
{¶ 54} The state appealed, asserting that the second motion was untimely and,
therefore, a judicial release determination that it was entitled to appeal as "contrary to
law" under R.C. 2953.08(B)(2). Id. at ¶ 12. The Supreme Court disagreed, finding no
No. 15AP-886 19

grounds for the appeal based on the plain language of R.C. 2953.08(B). The statute
allows that the state:
"[M]ay 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:

***

(2) The sentence is contrary to law.

(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."

Id. at ¶ 7-10, quoting R.C. 2953.08(B).
{¶ 55} In its analysis, Cunningham first observed that:
[T]he plain language of R.C. 2953.08(B)(3) does not include
any reference to a felony of the third, fourth, or fifth degree.
By including only felonies of the first and second degree
within the text of (B)(3), the General Assembly has excluded
all other felony offenses of a lesser degree because "the
express inclusion of one thing implies the exclusion of the
other."

Id. at ¶ 20, quoting Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, ¶ 24.
{¶ 56} Cunningham also rejected the state's argument that it could appeal a
sentence modification under the "contrary to law" prong of R.C. 2953.08(B)(2):
Finally, we recognize that the state, relying on R.C.
2953.08(B)(2), contends that it has a right to appeal a
sentence modification that is contrary to law. Here, it urges
that the court acted contrary to law in permitting
Cunningham to reinstate a motion that had been withdrawn
and that would have been untimely if it were refiled. A
careful examination of R.C. 2953.08(B)(2), however, reveals
that it does not refer to the modification of a sentence;
rather, it authorizes the prosecuting attorney to appeal, as a
matter of right, a sentence imposed on a defendant on the
grounds that "[t]he sentence is contrary to law." Thus, it
No. 15AP-886 20

does not apply to a modification of a sentence that is
allegedly contrary to law.
(Emphasis sic.) Id. at ¶ 22.
{¶ 57} For two reasons, the majority's decision is inconsistent with the holding and
analysis in Cunningham. First, the majority's predominant rationale for reversal is that
the trial court applied a legally incorrect definition of "strong provocation" under R.C.
2929.12(C)(2). Yet, Cunningham holds there is no right to appeal a sentence
modification that is contrary to law. The majority has allowed the state to bring such an
appeal by entertaining and accepting the argument that the trial court's definition of one
of the "less serious" factors under R.C. 2929.12(C) that led to the sentence modification
was contrary to "Ohio law." (Appellant's Brief at 47.)
{¶ 58} Second, the Supreme Court's act of statutory interpretation in Cunningham
applies with equal force to the language defining the standard of review under R.C.
2953.08(G)(2) for appeals of sentences and sentence modifications. The consequence of
applying that interpretation is that the R.C. 2953.08(G)(2) standard of review does not
allow an appellate court to reverse a sentence modification if it is contrary to law. In
setting forth the standard of review, R.C. 2953.08(G)(2) states that the appellate court
must "clearly and convincingly find[] either of the following: (a) That the record does not
support the sentencing court's findings under * * * of section 2929.20 of the Revised Code
* * *; [or] (b) That the sentence is otherwise contrary to law." The statute's failure to
"refer to the modification of a sentence" in R.C. 2953.08(G)(2)(b) is identical to the
omission in R.C. 2953.08(B)(2) that led Cunningham to hold that the provision did not
apply to sentence modifications through judicial release, only appeals of original
sentences. Id. at ¶ 22. Further indication that the standard of review for sentence
modifications extends only to whether "the record does not support the sentencing court's
findings" is the explicit reference in R.C. 2953.08(G)(2)(a) to 2929.20, the judicial release
statute, which is not referenced in R.C. 2953.08(G)(2)(b), the "otherwise contrary to law"
prong.
{¶ 59} Recognizing that the standard of review of sentence modifications based on
judicial release determinations is confined to R.C. 2953.08(G)(2)(a) is only logical. If the
standard of review of judicial release determinations extended to whether they were
No. 15AP-886 21

"otherwise contrary to law," Cunningham's holding that the state has no right of appeal
arising from a judicial release determination that is "contrary to law" under R.C.
2953.08(B)(2) would be rendered a nullity. The applicable standard of review cannot
enlarge the scope of the state's right of appeal.3
{¶ 60} For the foregoing reasons, I believe that the majority is precluded from
applying a standard of review that allows reversal of the trial court on the grounds that the
judicial release determination resulting in a sentence modification was "otherwise
contrary to law." R.C. 2953.08(G)(2)(a). Based on the reference in the assignment of
error to the "record," the majority states that the state "does not challenge the trial court's
decision as being clearly and convincingly 'contrary to law' under R.C. 2953.08(G)(2)(b),"
and accordingly "confine[s]" its analysis to the question of whether the record supports
the trial court's findings under R.C. 2953.08(G)(2)(a). (Majority Decision at ¶ 16.)
Regardless of the reference to the "record" in the assignment of error, the state's
argument that the trial court applied a definition of "strong provocation" that is legally
incorrect under "Ohio law" is, in effect, a stealth attempt to seek review of that finding
under the "contrary to law" standard of R.C. 2953.08(G)(2)(b). (Appellant's Brief at 47.)
And, in spite of its assurances to the contrary, the majority's analysis amounts to an
application of that standard. The majority is careful to couch its criticism in terms of the
record and avoid use of the term "contrary to law," as when, for example, it states that
"the record clearly and convincingly fails to support the trial court's determination that in
committing identity theft appellee acted with 'strong provocation.' " (Majority Decision at
¶ 41.) Yet, this is the standard the majority actually applies when it rejects the R.C.
2929.12(C)(2) definition of "strong provocation" applied by the trial court. The majority's

3 In light of the analysis in Cunningham, I believe that this court's decision in State v. Williams, 10th Dist.

No. 10AP-55, 2010-Ohio-4519, ¶ 10, improperly applied the "contrary to law" standard to the state's
appeal of a judicial release determination when it accepted the state's assertion that the "trial court's
decision [was] contrary to law because it did not comply with R.C. 2929.20(H) when it failed to mention
the factors listed in R.C. 2929.12 and how they factored into its decision to grant judicial release." In such
a situation, however, it is unnecessary to reference or apply the "contrary to law" standard under R.C.
2953.08(G)(2)(b) when a trial court fails to make the findings required by R.C. 2929.20 because a
separate provision of the statute expressly addresses this error. R.C. 2953.08(G)(1) requires the court of
appeals to "remand the case to the sentencing court and instruct the sentencing court to state, on the
record, the required findings" for failure to make them in accordance with R.C. 2929.20.
No. 15AP-886 22

entire analysis flows from the principle that the definition applied by the trial court was
contrary to law.
{¶ 61} Even if this were grounds for reversing the trial court, the definition of
"strong provocation" that the majority faults the trial court for not applying is
unpersuasive. Conceding that "R.C. 2929.12 does not define the term 'strong
provocation,' " the majority looks to several other sources to support a definition of
provocation that necessarily involves an affirmative act by a third party. (Majority
Decision at ¶ 32.) It cites the use of the term "serious provocation" as an element of
several violent offenses, voluntary manslaughter under R.C. 2903.03(A) and aggravated
assault under R.C. 2903.12(A), where the term describes an attendant circumstance not
found in the more serious counterparts of those offenses (murder and felonious assault).
While the similarity of the terms "strong provocation" and "serious provocation" makes
this a superficially appealing comparison, both offense statutes specifically refer to
"serious provocation occasioned by the victim." (Emphasis added.) R.C. 2903.03(A) and
2903.12(A). In contrast, the R.C. 2929.12(C) factor in question contains no reference to a
victim or third party. It simply states "[i]n committing the offense, the offender acted
under strong provocation." R.C. 2929.12(C)(2). This broader, more general use of the
term "provocation" should not be limited by reference to a more restricted use of it in a
completely different statute.
{¶ 62} Furthermore, the majority selectively quotes the dictionary entry on
"provocation" from Black's Law Dictionary. It only quotes the first definition: "1. The act
of inciting another to do something, esp. to commit a crime." Black's Law Dictionary 1421
(10th Ed.2009). The majority omits the second definition: "2. Something (such as words
or actions) that affects a person's reason and self-control, esp. causing the person to
commit a crime impulsively." Id. The second definition is substantially broader and,
although it includes "words or actions," is not limited to them. Rather, it recognizes that
"something" may provoke the offender. The trial court's findings comport with this
definition.
{¶ 63} Further demonstrating that the majority is actually reviewing the trial
court's decision under the "contrary to law" standard, it admonishes Nichter for not citing
"a single Ohio authority holding that a finding of 'strong provocation' may arise from the
No. 15AP-886 23

conduct of the offender, and this court has not found any such authority." (Majority
Decision at ¶ 36.) Even if it were proper to apply this standard–which, for the reasons
discussed, it is not under Cunningham—Nichter does not bear the burden on this appeal
to show that the definition applied by the trial court was correct. The burden to show
error belongs to the state. See, e.g., State v. Costlow, 8th Dist. No. 89501, 2008-Ohio-
1097, ¶ 15 ("The standard of review set forth in R.C. 2953.08(G)(2) places the burden on
the state to make an affirmative showing of error by clear and convincing evidence").
None of the cases cited by the state in its briefing holds that "strong provocation" under
R.C. 2929.12(C)(2) must, as a matter of law, arise from the action of "someone else," as
the state asserts. (Appellant's Brief at 47-48); see State v. Davis, 11th Dist. No. 2003-L-
027, 2004-Ohio-2076, ¶ 16 (affirming the trial court's refusal to consider an informant's
offer to sell the defendant cocaine as "strong provocation" under R.C. 2929.12(C)); State
v. Reissig, 6th Dist. No. WD-03-019, 2004-Ohio-1642 (rejecting the argument that a
wife's extramarital affair was "strong provocation" to induce the defendant to commit
domestic violence offenses under R.C. 2929.12(C)(2), where the wife had "admitted to the
affair several months before the incidents"); State v. Almon, 2d Dist. No. 19929, 2004-
Ohio-1027, ¶ 10 (holding that "[t]he trial court reasonably rejected [the defendant's]
suggestion that visiting with his family amounted to 'strong provocation' pursuant to R.C.
2929.12(C)"). Bearing in mind the state's burden, it would be proper to fault the state for
not citing "a single Ohio authority" holding that the definition of "strong provocation"
must arise from an affirmative act by the victim or third party to qualify as a mitigating
factor under R.C. 2929.12(C). (Majority Decision at ¶ 36.)
{¶ 64} Instead, the majority has cobbled together such a definition from two
statutes that contain express references to "provocation occasioned by the victim" not
found in R.C. 2929.12(C), the factors mitigating the death penalty under R.C.
2929.04(B)(2), and a partial reading of a Black's Law Dictionary entry that omits the half
of the definition of "provocation" that actually supports the trial court's definition. It was
within the discretion of the trial court to apply a general definition of "strong
provocation," where, as the majority admits, R.C. 2929.12(C) does not define the term.
Considering the deferential standard of review, it is improper to fault the trial court for
No. 15AP-886 24

failing to limit a term with multiple definitions to the restricted one advanced by the
majority.
{¶ 65} Even accepting, for the sake of argument, the majority's definition of
"strong provocation," its view of the record is untenable in light of the standard of review.
The majority asserts that "the evidence in the record clearly and convincingly supports a
finding that appellee's financial difficulties were caused by his own chronic
overspending." (Majority Decision at ¶ 35.) The only source provided for this "finding" is
the Presentence Investigation Report ("PSI"). The PSI mentions three bankruptcies and
Nichter's description of financial difficulties: "Currently, he states he is struggling
financially and worries about finances regularly."4 (PSI at 9.) Two of the bankruptcies
occurred so far in the past that they cannot plausibly be connected to Nichter's financial
difficulties at the time of the offense conduct. From this, and the "absence of any evidence
suggesting another cause of [Nichter's] financial problems," the majority believes that
"the only reasonable conclusion to draw from this record is that [he] caused his own dire
financial straits by engaging in chronic overspending." (Majority Decision at ¶ 36.)
{¶ 66} The relationship of Nichter's bankruptcies to the majority's analysis is
unclear, but it has chosen to cite them when finding that he acted out of "selfish" motives
stemming from "self-induced" financial problems. There is no evidence in the record
regarding the cause of his bankruptcies. A study conducted between Nichter's second and
third bankruptcies concluded that "62.1% of all bankruptcies in 2007" were medical.
Himmelstein, Medical Bankruptcy in the United States, 2007: Results of a National
Study, 122 Am.J.Med. 741 (2009). Another study found that "job loss, family breakup,
and medical problems" caused over 80 percent of family bankruptcies, and that "[a]ll the
other reasons combined - acts of God, calls to active duty for military reservists, car
wrecks, personal profligacy, and so on - account for just thirteen percent of families in
bankruptcy." (Emphasis added.) Warren, The New Economy and the Unraveling Social
Safety Net: The Growing Threat to Middle Class Families, 69 Brooklyn L.Rev. 401, 411
(2004). In no way do I suggest that Nichter's bankruptcies arose from medical debt. My

4 This statement refers to Nichter's financial problems at the time of the report's preparation. This does
not qualify as evidence relevant to his state of mind during the period he committed the offenses, much
less clear and convincing evidence, as required by the standard of review under R.C. 2953.08(G)(2).
No. 15AP-886 25

point is that when statistics show that the majority of U.S. bankruptcies arise from
medical debts, and there is no evidence at all in the record to explain the cause of a
debtor's financial problems, even statistics make it less likely than not that the problems
arose from selfishness or "chronic overspending." Thus, the majority's assumption is not
"the only reasonable conclusion to draw from th[e] record," as it asserts. (Majority
Decision at ¶ 36.) Rather, it is simply guesswork contradicted by basic facts. Thus, the
majority's finding is irreconcilable with the clear and convincing standard, which requires
a " 'measure or degree of proof which is more than a mere "preponderance of the
evidence." ' " Marcum at ¶ 22, quoting Cross at paragraph three of the syllabus. For these
reasons, there is absolutely no support in the record for the majority's speculative
"finding," much less evidence that would "produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established," as required under the clear
and convincing standard. Marcum at ¶ 23.
{¶ 67} Similarly, the majority states that the PSI's paraphrase of Nichter's
statement regarding his financial difficulties "establishes that he was motivated to commit
identity fraud by his own selfish need to obtain funds to cover his monthly expenses."
(Majority Decision at ¶ 40.) Where the PSI actually quotes Nichter, he states only the
following: "I was in dire straights financially and could not afford my monthly bills." (PSI
at 4.) The PSI is silent as to the cause of Nichter's financial difficulties and attests only to
their severity. Yet, the majority repeatedly refers to his problems as "self-induced,"
stemming from "chronic overspending" based on his "selfish" motives. The insistence on
such utterly baseless and unsupported factual conclusions contravenes the applicable
standard of review. There is no clear and convincing evidence for any of these findings, as
the standard of review demands.
{¶ 68} Under the R.C. 2953.08(G)(2) standard, "appellate courts are prohibited
from substituting their judgment for that of the trial judge." Venes at ¶ 20. It is difficult
to explain the majority's analysis without concluding that it has done just that. For the
foregoing reasons, I respectfully dissent.
____________________