[Cite as State v. Kusmisz, 2018-Ohio-1793.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 17-COA-033
:
DANIEL KUSMISZ, JR. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Case No. 17-CRI-
040
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 3, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CHRISTOPHER R. TUNNELL BRIAN A. SMITH
ASHLAND CO. PROSECUTOR 755 White Pond Dr., Ste. 403
VICTOR R. PEREZ Akron, OH 44320
110 Cottage St.
Ashland, OH 44805
Ashland County, Case No. 17-COA-033 2
Delaney, J.
{¶1} Appellant Daniel Kusmisz, Jr. appeals from the August 15, 2017 Judgment
Entry-Sentencing of the Ashland County Court of Common Pleas. Appellee is the state
of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced in part from the pre-sentence investigation
(P.S.I.) prepared upon order of the trial court and filed under seal for our review.
{¶3} Appellant is 58 years old and confined to a wheelchair due to physical
disabilities. Appellant has an adult criminal record dating to 1986 which includes felony
convictions and prison terms, most recently in 2013, for convictions including aggravated
drug trafficking.
{¶4} In the instant case, appellant admittedly paid a woman to come to his house,
undress, and wash his dishes. T.6. In exchange for allowing him to watch her wash
dishes unclothed, appellant “shared his medication” with her, the medication being a
fentanyl patch. The woman overdosed and appellant called 911.
{¶5} Subsequent investigation led to appellant’s charges in the instant case:
Count I, aggravated drug trafficking (fentanyl) pursuant to R.C. 2925.03(A)(1), a felony of
the third degree, and Count II, tampering with evidence pursuant to R.C. 2921.12(A)(1),
also a felony of the third degree.
{¶6} Appellant agreed to enter a plea of guilty to Count I in exchange for appellee
dismissing Count II. The trial court ordered preparation of the P.S.I. and appellant
returned for sentencing on August 14, 2017. On the record at the sentencing hearing,
the trial court noted appellant’s criminal history; the organized criminal activity involved in
Ashland County, Case No. 17-COA-033 3
the exchange between appellant and the woman; and appellant’s lack of remorse. The
trial court observed that appellant’s most recent prison term in 2013 was imposed for drug
trafficking offenses.
{¶7} The trial court sentenced appellant to a prison term of 24 months. Appellant
now appeals from the trial court’s judgment entry of sentence dated August 15, 2017.
{¶8} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶9} “THE TRIAL COURT’S SENTENCE OF APPELLANT WAS NOT
SUPPORTED BY THE RECORD.”
ANALYSIS
{¶10} In his sole assignment of error, appellant argues his sentence of 24 months
is not supported by the record. We disagree.
{¶11} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony
sentencing, as well as the factors of seriousness and recidivism. See, State v. Mathis,
109 Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.
{¶12} R.C. 2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1. Pursuant to R.C.
2953.08(G)(2), an appellate court may only “increase, reduce, or otherwise modify a
sentence * * * or may vacate the sentence and remand the matter to the sentencing court
for resentencing” if the court finds by clear and convincing evidence “(a) [t]hat the record
does not support the sentencing court's findings[,]” or “(b) [t]hat the sentence is otherwise
contrary to law.” R.C. 2953.08(G)(2)(a)–(b). “An appellate court will not find a sentence
clearly and convincingly contrary to law where the trial court considers the principles and
Ashland County, Case No. 17-COA-033 4
purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes
postrelease control, and sentences the defendant within the permissible statutory range.”
State v. Hall, 5th Dist. Richland No. 15CA112, 2017–Ohio–592, ¶ 9, citing State v. Ahlers,
12th Dist. Butler No. CA2015–06–100, 2016–Ohio–2890, ¶ 8, and State v. Moore, 12th
Dist. Clermont No. CA2014–02–016, 2014–Ohio–5191, ¶ 6.
{¶13} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are
to protect the public from future crime by the offender and others and to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources. To achieve these purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both. R.C. 2929.11(A).
{¶14} R.C. 2929.12 lists general factors which must be considered by the trial
court in determining the sentence to be imposed for a felony, and gives detailed criteria
which do not control the court's discretion but which must be considered for or against
severity or leniency in a particular case. The trial court retains discretion to determine the
most effective way to comply with the purpose and principles of sentencing as set forth in
R.C. 2929.11. R.C. 2929.12.
{¶15} Among the various factors that the trial court must consider and balance
under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the
victim as a result of the offense; (2) whether the offender has a history of criminal
convictions; (3) whether the offender has not responded favorably to sanctions previously
Ashland County, Case No. 17-COA-033 5
imposed by criminal convictions; and (4) whether the offender shows genuine remorse
for the offense. R.C. 2929.12.
{¶16} At the sentencing hearing in the instant case, appellant admitted he has
been to prison for drug trafficking offenses in the past but insinuated his numerous
contacts with law enforcement have been the fault of others, not himself. Even in this
case, he claimed, “they” sent a woman to his house for naked dishwashing and he has to
share medication for companionship. The trial court noted, though, that appellant
essentially engaged in organized criminal activity and the aggravated drug trafficking was
facilitated by his relationship with the victim. The trial court opined appellant
demonstrated no remorse.
{¶17} The sentence of 24 months is within the middle of the range provided for
felonies of the third degree. R.C. 2929.14(A)(3)(b). We find the trial court properly
considered the statutory factors and complied with all applicable rules and laws. We
further find the sentence is not clearly and convincingly contrary to law, and the trial court
did not err in sentencing appellant.
{¶18} Appellant’s sole assignment of error is overruled.
Ashland County, Case No. 17-COA-033 6
CONCLUSION
{¶19} Appellant’s sole assignment of error is overruled and the judgment of the
Ashland County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, Earle, J., concur.