State v. Barnett

2025 Ohio 4759

Opinion

[Cite as State v. Barnett, 2025-Ohio-4759.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, Case No. 25-COA-001

Plaintiff - Appellee Opinion And Judgment Entry

-vs- Appeal from the Ashland County Court of Common Pleas, Case No. 24-CRI-239 NICHOLAS BARNETT, Judgment: Affirmed Defendant - Appellant Date of Judgment Entry: October 15, 2025

BEFORE: Craig R. Baldwin; William B. Hoffman; David M. Gormley, Judges

APPEARANCES: CHRISTOPHER R. TUNNELL, Prosecuting Attorney, JAMES B. REESE III, Assistant Prosecuting Attorney, for Plaintiff-Appellee; BRIAN A. SMITH, for Defendant-Appellant.

Baldwin, P.J.

{¶1} The appellant’s counsel has submitted an Anders Brief in which he offers

as a potential assignment of error whether the trial court’s sentence was contrary to law

for not properly considering each of the principles and purposes of felony sentencing

under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12.

Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} On August 22, 2024, a Complaint was filed in the Ashland County Court of

Common Pleas by Sergeant Mark Thomas Jump of the Ashland County Sheriff’s Office

alleging that, on or about August 20, 2024, the appellant “did purposely and by force or

by unlawful threat of harm to any person or property, retaliate against a public servant, a party official, or an attorney or witness who was involved in a civil or criminal action or

proceeding because the public servant, party official, attorney, or witness discharged the

duties of the public servant, party official, attorney, or witness,” in violation of R.C.

2921.05(A) and (C), Retaliation, a felony of the third degree. The appellant was served

with a copy of the Complaint, and appeared for a bond hearing on August 22, 2024. The

trial court appointed counsel for the appellant, set bond, and scheduled an initial

appearance hearing. The appellant pleaded not guilty at his initial appearance hearing,

and waived preliminary hearing. On September 13, 2024, an indictment was filed

charging the appellant with Retaliation in violation of R.C. 2921.05(A). The appellant

pleaded not guilty at his September 20, 2024, arraignment, and the matter was set for

jury trial on November 12, 2024. The appellant subsequently advised the trial court that

he wished to change his plea, and the court scheduled a Change of Plea Hearing for

October 31, 2024.

{¶3} The change of plea hearing proceeded on October 31, 2024. The trial court

engaged in the requisite Crim.R. 11 colloquy, accepted the appellant’s plea of guilty to

the sole charge of Retaliation, ordered a presentence investigation, and scheduled the

matter for sentencing. During the hearing, the trial court advised the appellant that the

possible sentence for his plea of guilty to a third degree felony was 9, 12, 18, 24, 30, or

36 months, which the appellant verbally acknowledged. In addition, the appellant signed

a Waiver of Constitutional Rights and Plea of Guilty form, which was filed with the court,

acknowledging the possible sentence.

{¶4} The sentencing hearing proceeded on December 9, 2024, at which the

following summary of events was presented: the appellant was on probation for an OVI

offense, violated the terms of his probation, and was sentenced to serve the balance of 50 days of jail time as a result. Rather than report to the jail as ordered, the appellant “had

a significant amount to drink” and “made threats in relation to [Municipal Court Judge J.G.]

to his pastor.” The appellant’s pastor reported the threats to law enforcement.

{¶5} The appellant’s counsel argued that the appellant took no steps in

furtherance of the threat, characterized the matter as not serious and “very close to not

even being a criminal offense.” The appellant made a statement during the hearing,

apologizing to J.G., stating that he would never harm anyone, and stating that “there is

no like injury or anything.”

{¶6} J.G. appeared at the hearing, and made the following victim statement:

* * *

The threat, I would say this, I asked for this chance to speak to you

directly and speak in the presence of Mr. Barnett, because I have been in

the Justice System for over 30 years and multiple [sic] threats against my

life by criminals.

This is the only [sic] second one that I took seriously. . . . And this

one was the only other one that there was a plan, that he did take steps in

the plan, and for him to come in here and say otherwise, I think lacks all

credibility.

The way this came to me, I sentenced him on August 19th on the

violation of probation, and the following night, the 20th, we had a long day

in Municipal Court, and I left my phone in my car. And in the evening, a

Deputy Sheriff shows up at my house where my wife and son were, and

says that he has been sent to see if I am alive, because they were not able

to get me on my cell phone, And then I learn of this threat which was - - and I am trying not to overstate it, but my wife was hysterical, all of us, all of us

in the criminal justice system, bailiffs, police officers or lawyers, prosecutors,

or judges, and we leave home every day to go to work and our family

members, they really don’t know if we are going to come home or not, and

I did not realize until his event how strong that feeling is amongst those

people.

And we get conditioned to it where we don’t think about it, but my

wife has not stopped thinking about it, she wants me to retire and we have

taken security steps at our house, and I don’t want to say what they are in

front of him, because I have no doubt in my mind that he intended to carry

out this threat, and the fact that he’s a drunk and has mental health

problems doesn’t make him less dangerous against me or my family.

The other issue is that I believed that he intended to carry it out is the

same day that he made this threat. He [sic] was on my Factbook page,

which he cannot access my Facebook page unless you [sic] are a friend,

and he is not. He sent me a friend request that I have here trying to get on

my Facebook page, and there is one reason that he would want to be on

the Facebook page is [sic] to learn about the movements and see where I

am going and furtherance of this point [sic] and the Deputy Sheriff talked to

me, says it was a very credible threat, and apparently his own pastor

thought it was relevant enough to contact law enforcement.

His behavior, this behavior immediately following the Sentence as

well as his comments on probation shows me, and I am very (inaudible) to

your decision here, Judge, but he committed this offense while on probation, and his probation was just terminated, but he demonstrated that he’s not a

person for Community Control and he violated probation already and failed

to appear for court multiple times, and I would respect and honor any

decision that the Court makes, and I am 100% sincere about that, but from

a victim standpoint, I don’t think that he’s going to comply with the probation

conditions, and which I believe [sic] he will make attempts on my life, which

is why we changed my court and changed security procedures which I never

wanted to do in the court, and I have a new carry weapon because I don’t

see well enough to shoot with pin sights, and I have a laser sighted handgun

so I can defend myself if he comes.

But I guess that is the main thing that I wanted to say, and I am here

with the victim’s advocate, I am speaking as a victim, and I don’t want to

think of myself that way, but I am not the only victim in the case, and this

has had an impact on the family. My son doesn’t want to be by himself at

home and my wife doesn’t want to be by herself at home, and we felt secure

when he was in jail.

What happens after that, I don’t know, but I would ask - - in my mind

this an [sic] assault on the Justice System, and I disagree with Mr.

Tarkowsky, that this is a minor offense or less serious than some others.

You threaten a Judge, you are attacking the Justice System, because

Judge’s [sic] that are afraid cannot be fair and do their jobs and not be

subjected to this sort of behavior because he did not want to do the jail

sentence that he deserved. {¶7} The trial court referenced the presentence investigation and the appellant’s

ORAS Score, acknowledged the serious psychological harm suffered by the victims, and

discussed the appellant’s risk of recidivism, multiple OVIs, and probation violations. The

court characterized the offense – threatening a Judicial Officer for doing his job – as a

threat to the entire justice system, noting that the threat was taken seriously by nearly

every individual involved in the matter. The trial court also acknowledged the appellant’s

efforts to befriend J.G. on Facebook, noting that “[t]here is no other reason other than to

gain information about him.”

{¶8} The trial court further discussed the overriding purposes and principles of

felony sentencing: to protect the public from future crime by the offender and others; to

punish the offender; to rehabilitate the offender; and, to deter the offender and others

from future crimes. The court found, based upon the appellant’s history, past performance

while on probation, continued use of alcohol, and the seriousness of the offense, that

Community Control was not appropriate, and sentenced the appellant to 18 months in

prison. The trial court issued a Judgment Entry – Sentencing on December 10, 2024,

memorializing its decision.

{¶9} The appellant filed a timely appeal, and his counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), in which he sets forth the following potential

assignment of error: “[w]hether the trial court’s sentence was contrary to law, for not

properly considering each of the principles and purposes of felony sentencing under R.C.

2929.11 and the seriousness and recidivism factors under R.C. 2929.12, pursuant to the

Ohio Supreme Court’s decisions in State v. Jones, 2020-Ohio-6729, and State v.

Marcum, 2016-Ohio-1002.” STANDARD OF REVIEW

{¶10} The United States Supreme Court held in Anders that if, after conscientious

examination of the record, an appellant’s counsel concludes the case is wholly frivolous,

then he or she should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany the request with a brief identifying anything in the record that

could arguably support the appeal. Id. Counsel must also: (1) furnish his client with a copy

of the brief and request to withdraw; and, (2) allow his client sufficient time to raise any

matters that the client chooses. Id. Once the appellant’s counsel has satisfied these

requirements, the appellate court must fully examine the proceedings below to determine

if any arguably meritorious issues exist. If the appellate court also determines that the

appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the

appeal without violating constitutional requirements or may proceed to a decision on the

merits if state law so requires. Id.

{¶11} Attorney Brian A. Smith, the appellant’s appellate counsel, filed an Anders

brief on June 2, 2025, informing this Court that he had conscientiously examined the case,

reviewed the entire record, researched all potential issues, and determined that there

were no meritorious issues for review which would support an appeal. Attorney Smith

requested that this Court make an independent review of the record to determine whether

there are any additional issues that would support an appeal, and moved the court for

permission to withdraw as counsel for the appellant “on the grounds that the appeal is

frivolous.” He served a copy of the Appellant’s Anders Brief upon the appellant with

instructions that he may file his own brief with this Court if he so wished. In addition,

Attorney Smith filed a separate Motion to Withdraw on May 30, 2025, in which he moved for an order withdrawing him as counsel in this matter, and further stated that all steps

had been taken to protect the appellant’s interests in this matter.

{¶12} This Court informed the appellant in a June 5, 2025, Judgment Entry that

the Court received notice he had been informed by his attorney that an Anders brief had

been filed on his behalf and provided notice that supplied the appellant with a copy. In

addition, the appellant was granted sixty days from the date of the entry to file a pro se

brief in support of his appeal. The appellant did not file a pro se brief.

{¶13} The record establishes that the appellant’s counsel has satisfied the

requirements set forth in Anders. Accordingly, we review the record in this case and

determine whether any arguably meritorious issues exist, “… keeping in mind that,

‘Anders equates a frivolous appeal with one that presents issues lacking in arguable

merit. An issue does not lack arguable merit merely because the prosecution can be

expected to present a strong argument in reply or because it is uncertain whether a

defendant will prevail on the issue on appeal. ‘An issue lacks arguable merit if, on the

facts and law involved, no responsible contention can be made that it offers a basis for

reversal.’ State v. Pullen, 2002-Ohio-6788, ¶ 4 (2nd Dist.); State v. Marbury, 2003-Ohio-

3242, ¶ 7-8 (2nd Dist.); State v. Chessman, 2005-Ohio-2511, ¶ 16-17 (2nd Dist.). State

v. Moore, 2009-Ohio-1416, ¶4 (2nd Dist.).’” State v. Reynolds, 2024-Ohio-1956, ¶ 10 (5th

Dist.).

ANALYSIS

{¶14} Appellate counsel submits as a potential assignment of error that the trial

court’s sentence was contrary to law in that it did not properly consider each of the

principles and purposes of felony sentencing under R.C. 2929.11, and the seriousness

and recidivism factors under R.C. 2929.12. We disagree. {¶15} An appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence. State v. Marcum, 2016-Ohio-

1002, ¶ 23. “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.” Cross v. Ledford, 161 Ohio St. 469, paragraph three of the syllabus (1954).

Thus, we may vacate or modify the appellant’s sentence only if we find by clear and

convincing evidence that the record does not support it.

{¶16} The appellant pleaded guilty to Retaliation. R.C. 2921.05 sets forth the

crime of retaliation, and states in pertinent part:

(A) No person, purposely and by force or by unlawful threat of

harm to any person or property, shall retaliate against a public servant, a

party official, or an attorney or witness who was involved in a civil or criminal

action or proceeding because the public servant, party official, attorney, or

witness discharged the duties of the public servant, party official, attorney,

or witness.

R.C. 2921.05(C) provides that violation of the retaliation statute constitutes a felony of the

third degree. R.C. 2929.14(A)(3)(b) provides that “for a felony of the third degree that is

not an offense for which division (A)(3)(a) of this section applies, the prison term shall be

a definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”

{¶17} R.C. 2929.11 addresses the overriding purposes of felony sentencing, and

provides in pertinent part: (A) A court that sentences an offender for a felony shall be guided

by the overriding purposes of felony sentencing. The overriding purposes of

felony sentencing are to protect the public from future crime by the offender

and others, to punish the offender, and to promote the effective rehabilitation

of 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 those 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.

(B) A sentence imposed for a felony shall be reasonably

calculated to achieve the three overriding purposes of felony sentencing set

forth in division (A) of this section, 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 crimes committed by

similar offenders.

{¶18} R.C. 2929.12 addresses factors to consider in felony sentencing, and

provides in pertinent part:

(A) Unless otherwise required by section 2929.13 or 2929.14 of

the Revised Code, a court that imposes a sentence under this chapter upon

an offender for a felony has discretion to determine the most effective way

to comply with the purposes and principles of sentencing set forth in section

2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating

to the seriousness of the conduct, the factors provided in divisions (D) and

(E) of this section relating to the likelihood of the offender's recidivism, and

the factors set forth in division (F) of this section pertaining to the offender's

service in the armed forces of the United States and, in addition, may

consider any other factors that are relevant to achieving those purposes and

principles of sentencing.

(B) 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.

(C) 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

(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.

(4) There are substantial grounds to mitigate the offender's

conduct, although the grounds are not enough to constitute a defense.

(D) The sentencing court shall consider all of the following that

apply regarding the offender, and any other relevant factors, as factors

indicating that the offender is likely to commit future crimes:

(1) At the time of committing the offense, the offender was under

release from confinement before trial or sentencing; was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code; was under post-release control pursuant to section 2967.28 or any

other provision of the Revised Code for an earlier offense or had been

unfavorably terminated from post-release control for a prior offense

pursuant to division (B) of section 2967.16 or section 2929.141 of the

Revised Code; was under transitional control in connection with a prior

offense; or had absconded from the offender's approved community

placement resulting in the offender's removal from the transitional control

program under section 2967.26 of the Revised Code.

(2) The offender previously was adjudicated a delinquent child

pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or

pursuant to Chapter 2152. of the Revised Code, or the offender has a

history of criminal convictions.

(3) The offender has not been rehabilitated to a satisfactory

degree after previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to

Chapter 2152. of the Revised Code, or the offender has not responded

favorably to sanctions previously imposed for criminal convictions.

(4) The offender has demonstrated a pattern of drug or alcohol

abuse that is related to the offense, and the offender refuses to

acknowledge that the offender has demonstrated that pattern, or the

offender refuses treatment for the drug or alcohol abuse.

(5) The offender shows no genuine remorse for the offense.

(E) The sentencing court shall consider all of the following that

apply regarding the offender, and any other relevant factors, as factors

indicating that the offender is not likely to commit future crimes:

(1) Prior to committing the offense, the offender had not been

adjudicated a delinquent child.

(2) Prior to committing the offense, the offender had not been

convicted of or pleaded guilty to a criminal offense.

(3) Prior to committing the offense, the offender had led a law-

abiding life for a significant number of years.

(4) The offense was committed under circumstances not likely to

recur.

(5) The offender shows genuine remorse for the offense.

(F) The sentencing court shall consider the offender's military

service record and 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.

{¶19} This Court addressed sentencing issues in State v. Worden, 2022-Ohio-

4648 (5th Dist.):

R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate court

to modify or vacate a sentence based on its view that the sentence is not

supported by the record under R.C. 2929.11 and 2929.12. State v. Jones,

163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶39. The Ohio

Supreme Court further elucidated in State v. Toles, 166 Ohio St.3d 397,

2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,

precludes second-guessing a sentence imposed by the trial court based on

its weighing of the considerations in R.C. 2929.11 and 2929.12.’’

Id. at ¶27. In the case sub judice, the sentence imposed by the trial court on the charge

to which the appellant pleaded guilty complies with the applicable sentencing statutes.

The sentence was within the statutory sentencing range. The trial court considered the

factors listed in R.C. 2929.11 and 2929.12. The appellant cannot show that the trial court

imposed the sentence based upon impermissible considerations, for example,

considerations that fall outside those set forth in R.C. 2929.11 and R.C. 2929.12. The

record contains evidence supporting the trial court's findings based upon the applicable

law. The trial court did not err in imposing the sentence upon the appellant, and we find

no basis for concluding that the trial court’s decision is contrary to law.

{¶20} The overriding purposes of felony sentencing are, inter alia, to punish the

offender and to protect the public from future crime by the offender. The appellant’s

presentence investigation established that he has a criminal history. The sentence imposed by the trial court achieves the aforesaid statutory purposes, as it punishes the

appellant for his offense and protects the public from future crime by the appellant. To

achieve those purposes, the trial court properly considered the appellant’s history, the

need to incapacitate the appellant, and the need to deter the appellant and others from

committing future crimes. The trial court also considered the impact of the crime upon the

victim and his family. The appellant threatened the life of a Judicial Officer, causing him,

his wife, and his son serious psychological harm. R.C. 2929.12 gives the trial court the

discretion to determine the most effective way to comply with the purposes and principles

of sentencing set forth in R.C. 2929.11, and we do not find that the trial court’s decision

fell outside of these statutory parameters.

{¶21} Based upon the foregoing, we find that the trial court did not commit error

when it sentenced the appellant. The trial court’s imposition of sentence on the charge to

which the appellant pleaded guilty complies with the applicable rules and sentencing

statutes. Accordingly, there is no basis upon which to conclude that the sentence imposed

by the trial court is contrary to law, as submitted by appellate counsel as a potential error. CONCLUSION

{¶22} Based upon the foregoing, and after independently reviewing the record,

we agree with appellate counsel’s conclusion that no non-frivolous claims exist that would

justify remand or review of the appellant’s conviction or sentence. We find the appeal to

be wholly frivolous under Anders. Attorney Smith’s motion to withdraw as counsel for the

appellant is hereby granted, and the judgment of the Ashland County Court of Common

Pleas is hereby affirmed.

{¶23} Costs to appellant.

By: Baldwin, P.J.

Hoffman, J. and

Gormley, J. concur.