State v. Henson

[Cite as State v. Henson, 2021-Ohio-38.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellee, : CASE NO . CA2020-07-037

: OPINION
- vs - 1/11/2021
:

MICHAEL B. HENSON, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
Case No. 2007 TRC 9558

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, Ohio 45103, for appellant

S. POWELL, J.

{¶ 1} Appellant, Michael B. Henson, appeals the decision of the Clermont County

Municipal Court ordering him to serve three consecutive 180-day jail sentences after he

pled guilty to three first-degree misdemeanor offenses.1 For the reasons outlined below,

1. Pursuant to Loc.R. (6)(A), we sua sponte remove this appeal from the accelerated calendar for the purpose
of issuing this opinion.
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we affirm the trial court's decision.

Facts and Procedural History

{¶ 2} On August 22, 2007, Henson pled guilty to operating a vehicle while under

the influence of alcohol. Following his guilty plea, the trial court sentenced Henson to two

years of nonreporting probation. The terms of Henson's probation included a term that

required Henson to complete a treatment program at the Clermont Recovery Center.

However, because Henson failed to attend the treatment program as ordered, the trial court

later modified Henson's probation status from nonreporting probation to reporting probation.

This modification occurred on July 11, 2008.

{¶ 3} On March 19, 2009, a notice was filed with the trial court alleging Henson had

violated the terms of his probation by (1) admittedly smoking marijuana, (2) failing to report

to the Adult Probation Department as directed, (3) failing to obtain lawful employment, and

by (4) failing to complete the treatment program at the Clermont Recovery Center. Upon

receiving this notice, the trial court scheduled a hearing on the matter for April 24, 2009.

Henson did not appear at this hearing and the trial court issued a bench warrant for his

arrest. This bench warrant was issued on April 28, 2009.

{¶ 4} Over 11 years later, on May 25, 2020, Henson was arrested on that

outstanding bench warrant. Henson's arrest occurred after an officer with the Union

Township Police Department received a report of a "hit/skip" accident. This report indicated

that the vehicle involved in the accident was "all over the road" and was missing one of its

front tires. The officer soon located the three-wheeled vehicle and attempted to conduct a

traffic stop. The vehicle, however, did not stop and continued to travel for nearly five miles

until the vehicle reached an apartment complex. After reaching the apartment complex, the

driver, who was later identified as Henson, exited the vehicle and was taken into custody.

{¶ 5} On June 5, 2020, Henson pled guilty to leaving the scene of an accident,

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operating a vehicle while under the influence of alcohol, and violating the terms of his

probation, all first-degree misdemeanors. After accepting Henson's guilty plea, the trial

court proceeded to sentencing and sentenced Henson to serve three consecutive 180-day

jail sentences for a total, aggregate sentence of 540 days in jail. The trial court also ordered

Henson to pay a fine of $375 plus court costs and suspended Henson's driver's license for

a period of three years.

{¶ 6} In issuing its sentencing decision, the trial court stated, in pertinent part, the

following:

Mr. Henson, I have considered the purposes and principles of
sentencing. Amongst those principles are the fact that you are
here on a probation violation from 2007, where you violated your
probation. Never really showed up after it had been modified to
reporting here in court. A bench warrant was issued. And while
this case was pending and the warrant was out in this case, you
have now picked up an OVI offense and a leaving the scene of
the accident offense.

{¶ 7} The trial court also stated:

Based upon all of the facts that this Court had considered at this
point in time, I'm going to indicate for the record that these three
sentences are to be served consecutive to one another. So the
total jail sentence of 540 days.

{¶ 8} Henson now appeals the trial court's decision sentencing him to serve three

consecutive 180-day jail sentences, raising the following single assignment of error for

review.

{¶ 9} THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLATE (sic) TO CONSECUTIVE SENTENCES.

{¶ 10} Henson argues the trial court erred by ordering him to serve three consecutive

180-day jail sentences after he pled guilty to three first-degree misdemeanor offenses.

Henson supports this claim by arguing that his conduct, although wrong, did not warrant the

trial court imposing what amounts to a total, aggregate 540-day jail sentence. We disagree.

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Standard of Review: Abuse of Discretion

{¶ 11} This court reviews a trial court's sentence on a misdemeanor violation under

an abuse of discretion standard. State v. Jezioro, 12th Dist. Warren No. CA2016-10-088,

2017-Ohio-2587, ¶ 6, citing State v. Wisby, 12th Dist. Clermont No. CA2012-06-049, 2013-

Ohio-1307, ¶ 29-33; and State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-

Ohio-6529, ¶ 25. An abuse of discretion connotes more than an error in law or judgment;

it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v.

Sanchez-Garza, 12th Dist. Butler No. CA2016-02-036, 2017-Ohio-1234, ¶ 33. "A decision

is unreasonable where a sound reasoning process does not support it." State v. Miller, 12th

Dist. 2016-Ohio-7360, ¶ 7, citing AAAA Ents., Inc. v. River Place Community Urban Redev.

Corp., 50 Ohio St.3d 157, 161 (1990). "[A]n 'arbitrary' decision is one made 'without

consideration of or regard for facts [or] circumstances.'" State v. Beasley, 152 Ohio St.3d

470, 2018-Ohio-16, ¶ 12, quoting Black's Law Dictionary 125 (10th Ed.2014). "'An

unconscionable decision may be defined as one that affronts the sense of justice, decency,

or reasonableness.'" State v. Wane, 12th Dist. Butler Nos. CA2020-01-010, CA2020-01-

011, CA2020-01-014, and CA2020-01-015, 2020-Ohio-4874, ¶ 22, quoting Campbell v. 1

Spring, LLC, 10th Dist. Franklin No. 19AP-368, 2020-Ohio-3190, ¶ 9, citing Porter, Wright,

Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. Franklin No. 08AP-69, 2008-Ohio-

3567, ¶ 11.

Rule of Law: Misdemeanor Sentencing Scheme

{¶ 12} "Pursuant to R.C. 2929.21 and 2929.22, trial courts have broad discretion

when determining what sentence is appropriate for each given misdemeanor case." State

v. Fisher, 12th Dist. Clermont No. CA2019-10-080, 2020-Ohio-3764, ¶ 11, citing State v.

Kinsworthy, 12th Dist. Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 30. When

determining what sentence is appropriate for each given misdemeanor case, the trial court

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must be guided by the overriding purposes of misdemeanor sentencing. State v. Doty, 12th

Dist. Clermont No. CA2018-07-055, 2019-Ohio-917, ¶ 27. "The two overriding purposes of

misdemeanor sentencing are to punish the offender and to protect the public from future

crime by the offender." State v. Hause, 12th Dist. Warren No. CA2008-05-063, 2009-Ohio-

548, ¶ 23, citing R.C. 2929.21(A). To achieve these purposes, the trial court must 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 of the offense, the public, or

the victim and the public." R.C. 2929.21(A). The sentence imposed by the trial court must

also be "reasonably calculated to achieve the two overriding purposes of misdemeanor

sentencing" set forth above, "commensurate with and not demeaning to the seriousness of

the offender's conduct and its impact upon the victim," and "consistent with sentences

imposed for similar offenses committed by similar offenders." R.C. 2929.21(B).

{¶ 13} In determining the appropriate sentence for a misdemeanor offense, the trial

court must consider all of the factors set forth in R.C. 2929.22(B)(1). Those factors are as

follows:

(a) The nature and circumstances of the offense or offenses;

(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of
persistent criminal activity and that the offender's character and
condition reveal a substantial risk that the offender will commit
another offense;

(c) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender's history,
character, and condition reveal a substantial risk that the
offender will be a danger to others and that the offender's
conduct has been characterized by a pattern of repetitive,
compulsive, or aggressive behavior with heedless indifference
to the consequences;

(d) Whether the victim's youth, age, disability, or other factor
made the victim particularly vulnerable to the offense or made
the impact of the offense more serious;

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(e) Whether the offender is likely to commit future crimes in
general, in addition to the circumstances described in divisions
(B)(1)(b) and (c) of this section;

(f) Whether the offender has an emotional, mental, or physical
condition that is traceable to the offender's service in the armed
forces of the United States and that was a contributing factor in
the offender's commission of the offense or offenses;

(g) The offender's military service record.

{¶ 14} The trial court may also consider any other factors that are relevant to

achieving the purposes and principles of misdemeanor sentencing. R.C. 2929.22(B)(2).

{¶ 15} The trial court is "presumed to have considered the statutory factors" set forth

in R.C. 2929.21 and 2929.22 "when the sentence is 'within the statutory limits and there is

no affirmative showing that the trial court failed to do so.'" Kinsworthy, 2014-Ohio-2238 at

¶ 30, quoting State v. Collins, 3d Dist. Allen Nos. 1-05-15 and 1-05-21, 2005-Ohio-4755, ¶

12. This is because, "[a]lthough it is preferable that the trial court affirmatively state on the

record that it has considered the criteria set forth" within those two statutes, neither statute

mandates "that the record state that the trial court considered the applicable statutory

factors." Kinsworthy. Therefore, in the case of a silent record, there is a presumption that

the trial court considered the necessary statutory criteria absent an affirmative showing by

the defendant that it did not. State v. Florence, 12th Dist. Butler No. CA2013-08-148, 2014-

Ohio-2337, ¶ 26; see State v. Reynolds, 12th Dist. Brown No. CA2000-11-035, 2001 Ohio

App. LEXIS 3164, *11 (July 16, 2001) (a silent record raises the presumption that the trial

court correctly considered the appropriate sentencing criteria).

Rule of Law: Consecutive Sentences for Misdemeanor Offenses

{¶ 16} R.C. 2929.41(B)(1) addresses the imposition of consecutive sentences for

misdemeanor offenses. Pursuant to that statute, so long as the aggregate jail term to be

served does not exceed 18 months:

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A jail term or sentence of imprisonment for a misdemeanor shall
be served consecutively to any other prison term, jail term, or
sentence of imprisonment when the trial court specifies that it is
to be served consecutively or when it is imposed for a
misdemeanor violation of section 2907.322, 2921.34, or
2923.131 of the Revised Code.

{¶ 17} The trial court is not required to make consecutive sentence findings under

R.C. 2929.14(C)(4) prior to ordering consecutive sentences for jail terms imposed for

misdemeanor offenses. State v. Prickett, 12th Dist. Butler No. CA2017-01-010, 2017-Ohio-

8128, ¶ 24; State v. Burley, 7th Dist. Mahoning No. 16 MA 0076, 2017-Ohio-378, ¶ 10 ("trial

courts are authorized to order consecutive jail terms for misdemeanor offenses [up to 18

months] without making consecutive sentence findings"). That statute is instead reserved

for circumstances where the trial court imposes consecutive sentences for prison terms

imposed for felony offenses. See State v. Whitman, 5th Dist. Ashland Nos. 18-COA-030

and 18-COA-031, 2019-Ohio-2307, ¶ 71 ("[i]n contrast to consecutive prison terms for

felonies imposed under R.C. 2929.14[C][4], trial courts are authorized to order consecutive

jail terms for misdemeanor offenses [up to 18 months] without making consecutive sentence

findings"); State v. Alexander, 8th Dist. Cuyahoga No. 102708, 2016-Ohio-204, ¶ 7 ("R.C.

2929.14[C][4], the statutory section authorizing the imposition of consecutive service of

prison terms, is not applicable" when ordering consecutive service of misdemeanor jail

terms). The trial court need only "specify" that the jail terms being imposed were to be

served consecutively. State v. Jones, 8th Dist. Cuyahoga No. 108438, 2020-Ohio-1273, ¶

19.

Analysis

{¶ 18} After a thorough review of the record, we find no error in the trial court's

decision to sentence Henson to serve 180 days in jail for each of the three first-degree

misdemeanor offenses for which he pled guilty. We also find no error in the trial court's

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decision ordering those jail terms to be served consecutively. The sentence imposed for

each offense falls within the statutory limits for a first-degree misdemeanor offense. R.C.

2929.24(A)(1) (capping the jail term a trial court can impose for a first-degree misdemeanor

offense at 180 days). And, because there is no affirmative indication that the trial court

failed to consider any of the mandatory provisions set forth in either R.C. 2929.21 or

2929.22, the trial court is presumed to have complied with both statutes prior to issuing its

sentencing decision. Jezioro, 2017-Ohio-2587 at ¶ 7 ("[a] trial court is presumed to have

considered the statutory factors when the sentence is within the statutory limits and there

is no affirmative showing that the trial court failed to do so").

{¶ 19} The trial court also specifically stated during Henson's sentencing hearing, as

well as in its corresponding sentencing entries, that the three 180-day jail terms being

imposed were to be served consecutively. This sentence, when taken in the aggregate, is

less than the maximum permissible 18-month jail term. Therefore, given the above, and

when considering the underlying facts and circumstances of this case, we find no error in

the trial court's decision to sentence Henson to serve three consecutive 180-day jail

sentences after he pled guilty to three first-degree misdemeanor offenses. See, e.g., State

v. Briggs, 12th Dist. Clermont No. CA2016-06-043, 2017-Ohio-686, ¶ 25 (trial court's

sentencing decision was proper where "the record reflects the court considered the

purposes of sentencing under R.C. 2929.21 and 2929.22 and sentenced appellant within

the statutory limits for a first-degree misdemeanor in accordance with R.C. 2929.24[A]").

Accordingly, finding no merit to any of the arguments raised herein, Henson's single

assignment of error lacks merit and is overruled.

Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.

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