[Cite as State v. Smith, 2018-Ohio-5294.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-05-095
: OPINION
- vs - 12/28/2018
:
JOSHUA R. SMITH, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-01-0098
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee
Law Office of Christopher P. Frederick, Christopher P. Frederick, 300 High Street, Suite
550, Hamilton, OH 45011, for appellant
S. POWELL, P.J.
{¶ 1} Appellant, Joshua R. Smith, appeals from the 18-month prison sentence he
received in the Butler County Court of Common Pleas after he pled guilty to one third-
degree felony count of violating a protection order. For the reasons outlined below, we
affirm the trial court's sentencing decision.
{¶ 2} On February 14, 2018, the Butler County Grand Jury returned a six-count
Butler CA2018-05-095
indictment charging Smith with two third-degree felony counts of violating a protection order,
two fourth-degree felony counts of trespass in a habitation, and two fifth-degree felony
counts of violating a protection order. According to the bill of particulars, the charges arose
after it was alleged Smith twice violated a protection order while trespassing into his
mother's home. It is undisputed that Smith's mother was the petitioner on the protection
order that Smith was alleged to have twice violated.
{¶ 3} On March 29, 2018, Smith pled guilty to one third-degree felony count of
violating a protection order in exchange for the remaining five counts being dismissed. The
trial court thereafter sentenced Smith to serve an 18-month prison term. In reaching this
decision, the trial court initially noted that factually "it looks like a son who's threatened his
mother with harm or harmed her. She got a restraining order, and then he came back twice.
On its face, that would suggest prison." The trial court then stated, in pertinent part, the
following:
The Court has considered the purposes and principles of
sentencing, the weight of recidivism and the seriousness
factors. All right. I, based on what I've heard, I find it
unbelievable that your mother got a restraining order against
you, but she did. And it was a court order. And you violated it
once, and you got arrested. And then you violated it a second
time and got arrested a second time.
The Court is going to find that you have absolutely no respect
for the law or the rules, that you're not amenable to available
community-control sanctions. Therefore, in connection with
your conviction on Count I, violating a protection order, a felony
of the third degree, the Court sentences you, this time, to 18
months in prison.
Concluding, the trial court advised Smith "not return to your mother's residence." The trial
court also advised Smith that "I would not have any more contact with her until there is no
longer a restraining order in place. You need to follow the law."
{¶ 4} Smith now appeals from the trial court's decision sentencing him to serve an
-2-
Butler CA2018-05-095
18-month prison term, raising the following single assignment of error for review.
{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. SMITH WHEN IT
SENTENCED HIM TO A TERM OF EIGHTEEN MONTHS IN THE OHIO DEPARTMENT
OF REHABILITATION AND CORRECTIONS.
{¶ 6} In his single assignment of error, Smith argues the trial court erred by
sentencing him to serve an 18-month prison term. We disagree.
{¶ 7} As with all felony sentences, we review the trial court's sentencing decision
under the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to R.C. 2953.08(G)(2), this court may modify or
vacate a sentence only if, by clear and convincing evidence, "the record does not support
the trial court's findings under relevant statutes or that the sentence is otherwise contrary
to law." State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A
sentence is not clearly and convincingly contrary to law where the trial court "considers the
principles and 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. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶
8. Thus, this court may "increase, reduce, or otherwise modify a sentence only when it
clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by
the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum
at ¶ 7.
{¶ 8} As noted above, Smith argues the trial court erred by sentencing him to serve
an 18-month prison term. In support, Smith initially argues the record does not support the
trial court's sentencing decision. However, after a full and thorough review of the record,
we agree with the trial court's sentencing decision upon finding Smith had "absolutely no
respect for the law or the rules." This is clear from the record when considering Smith twice
-3-
Butler CA2018-05-095
violated a protection order by trespassing into his mother's home that ultimately resulted in
his arrest and conviction in this case.
{¶ 9} The trial court's sentencing decision was further supported by Smith's lengthy
criminal history. This includes his convictions for, among other things, domestic violence,
reckless operation, possession of drug paraphernalia, attempted drug abuse, and
aggravated menacing. The record indicates Smith was also convicted of twice violating a
different protection order not subject of this appeal. Smith's claim the record does not
support the trial court's sentencing decision lacks merit.
{¶ 10} Smith also argues the trial court's decision to sentence him to serve 18-
months in prison was overly harsh. Smith instead claims the purposes and principles of
felony sentencing could have been achieved by sentencing him to a community based
correctional facility. Yet, after considering record, the charges, and the presentence
investigation report, the trial court disagreed with Smith's claim that merely sentencing him
to a community based correctional facility was appropriate in this case. This is because, as
the trial court stated, "it looks like a son who's threatened his mother with harm or harmed
her. She got a restraining order, and then he came back twice. On its face, that would
suggest prison." We find no error in the trial court's decision.
{¶ 11} Smith finally argues the trial court's decision to sentence him to serve 18-
months in prison was not commensurate with the seriousness of his conduct. The record
indicates Smith's conduct leading to his conviction may not have been the most serious
nature of the offense. The trial court, however, took this into consideration in issuing its
sentencing decision. As the record indicates, the trial court sentenced Smith to serve just
18-months in prison. This is half the maximum possible 36-month prison term the trial court
could have been imposed for a third-degree felony. See R.C. 2929.14(A)(3)(b) ("[f]or a
felony of the third degree that is not an offense for which division (A)(3)(a) of this section
-4-
Butler CA2018-05-095
applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six
months"). This was the trial court's decision to make after considering the necessary
sentencing statutes, the record, the charges, and the presentence investigation report. That
is exactly what the trial court did here. Therefore, finding no merit to Smith's arguments
challenging the trial court's sentencing decision raised herein, Smith's single assignment of
error is overruled.
{¶ 12} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
-5-