[Cite as State v. Manning, 2025-Ohio-2268.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. Robert G. Montgomery, J. : Hon. Kevin W. Popham, J. -vs- : : WESLEY MANNING, : Case No. 2024CA00177 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court, Stark County, Ohio, Case No. 2020-CRB-00167
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 27, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANGEL RUHL AARON KOVALCHIK ALLIANCE CITY PROSECUTOR 116 Cleveland Ave., NW 470 East Market Street Suite 808 Alliance, OH 44601 Canton, OH 44702 Montgomery, J.
{¶1} Defendant-Appellant (“Appellant”) Wesley Manning appeals from the
Alliance Municipal Court, Stark County, Ohio, decision to remove him from a theft
diversion program in 2020 and subsequently deny him readmission into the program in
2024, after he pled “no contest” to the charge of criminal mischief. For the following
reasons, we affirm.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On February 3, 2020, Appellant was arraigned on one count of theft. On
March 18, 2020, Appellant was accepted into the theft diversion program through the
Alliance Municipal Court, Stark County, Ohio. A review for program compliance was
initially set for June 19, 2020, but was reset to September 25, 2020, given the then
existing Covid-19 response protocols. Appellant was required to complete the program,
including a 10-hour online theft prevention course, before September 25, 2020.
{¶3} On September 25, 2020, Appellant did not appear for the hearing and did
not provide proof of program completion. That same day, the court noted that it would
give Appellant one final two-week extension of time, until October 9, 2020, and if he
remained not fully compliant, the court would remove him from the program. See Tr.
8/7/24, p. 4. On October 9, 2020, although Appellant’s counsel informed the court that
Appellant did complete the program, counsel did not have proof of completion. Tr. at pp.
4-5. As a result, the court removed Appellant from the program. The court set a pre-trial
date for October 30, 2020. Appellant failed to appear on October 30, 2020. The court
issued a bench warrant for his failure to appear and set bond at $5,000.00. For nearly
four years, Appellant did not follow up with the court or otherwise attempt to appear. Appellant was apparently living in New York most of that time and ultimately learned in
mid-2024 that his warrant remained outstanding.
{¶4} On June 7, 2024, Appellant, by and through his counsel Andrew Zumbar,
filed a Motion to Seal Appellant’s record and to re-accept Appellant into the diversion
program. On July 16, 2024, Appellant's motion was denied. In its Entry, the court stated
that Appellant simply failed to comply with the terms of the program and did not submit
his certificate of compliance until four years after the fact. On August 7, 2024, Appellant
appeared before the court with counsel for his arraignment, and counsel renewed his
Motion to readmit Appellant to diversion. The court denied the Motion, stating “I set forth
my reasons abundantly clear. Four years is long enough to wait for him.” Tr. 8/7/24, pp.
5-6. After further discussion, the matter was set for pretrial for September 4, 2024.
{¶5} Eventually and as the result of discussions between Appellant’s counsel
and the State, on October 14, 2024, the State agreed to amend the original charge of
theft to one count of criminal mischief, a fourth-degree misdemeanor. Appellant agreed
to plead “no contest” and the court found him guilty of same. That same day, the court
sentenced Appellant to 30 days in jail (27 suspended), with the option to serve 60 hours
of community service in lieu of 3 days jail time. The court required Appellant to complete
his community service before January 31, 2025. Appellant timely provided evidence of
his completion of community service. Appellant timely filed this appeal.
ASSIGNMENT OF ERROR
{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REMOVED APPELLANT FROM THE DIVERSION PROGRAM.” STANDARD OF REVIEW
{¶7} “Generally, an appellate court will not overturn the sentence imposed on a
misdemeanor offender absent an abuse of discretion by the trial court.” In Adams, the
Ohio Supreme Court stated that the term abuse-of-discretion “connotes more than an
error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157–158 (1980); State v. Horton,
2017-Ohio-8549, ¶ 36 (10th Dist.); State v. Jenkins, 15 Ohio St.3d 164, 222 (1984) (An
abuse of discretion implies that the trial court's attitude, as evidenced by its decision, was
unreasonable, arbitrary, or unconscionable.”) Under the facts in this case, we conclude
the trial court did not abuse its discretion.
ANALYSIS
{¶8} Although Appellant does not appeal his misdemeanor sentence per se and
instead argues that he should not have been removed from diversion and/or should have
been readmitted, it provides clarity to review the applicable sentence provisions. R.C.
2929.21 et seq. governs penalties for misdemeanor offenses. R.C. 2929.21 establishes
the overriding purposes of misdemeanor sentencing, with subsection (A) stating: “The
overriding purposes of misdemeanor sentencing are to protect the public from future
crime by the offender and others and to punish the offender. To achieve those purposes,
the sentencing court shall 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(B)
provides: A sentence imposed for a misdemeanor * * * shall be reasonably calculated
to achieve the two overriding purposes of misdemeanor 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 offenses committed by similar
offenders. (*Will you check this to make sure it’s the exact language?)
{¶9} Further, unless jail time is mandatory for a misdemeanor offense, a court
that imposes a sentence upon an offender for a misdemeanor or minor misdemeanor has
discretion to determine the most effective way to achieve the purposes and principles of
sentencing. Horton, ¶ 38, citing R.C. 2929.22(A). Subsection (B) establishes factors a
trial court is required to consider in determining the appropriate sentence for a
misdemeanor. See R.C. 2929.22(B)(1) and (2). Further, R.C. 2929.22(C) generally
requires a trial court to consider the appropriateness of imposing a community control
sanction or a combination of community control sanctions before imposing a jail term.
{¶10} Here, Appellant claims the trial court abused its discretion in removing him
from the diversion program in 2020 and then failing to readmit him into the program in
2024, because at the October 9, 2020, hearing counsel informed the court that Appellant
fully completed the program. Appellant further claims the court did not consider the fact
that since 2020, he has remained a law-abiding citizen.
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[Cite as State v. Manning, 2025-Ohio-2268.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. Robert G. Montgomery, J. : Hon. Kevin W. Popham, J. -vs- : : WESLEY MANNING, : Case No. 2024CA00177 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court, Stark County, Ohio, Case No. 2020-CRB-00167
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 27, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANGEL RUHL AARON KOVALCHIK ALLIANCE CITY PROSECUTOR 116 Cleveland Ave., NW 470 East Market Street Suite 808 Alliance, OH 44601 Canton, OH 44702 Montgomery, J.
{¶1} Defendant-Appellant (“Appellant”) Wesley Manning appeals from the
Alliance Municipal Court, Stark County, Ohio, decision to remove him from a theft
diversion program in 2020 and subsequently deny him readmission into the program in
2024, after he pled “no contest” to the charge of criminal mischief. For the following
reasons, we affirm.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On February 3, 2020, Appellant was arraigned on one count of theft. On
March 18, 2020, Appellant was accepted into the theft diversion program through the
Alliance Municipal Court, Stark County, Ohio. A review for program compliance was
initially set for June 19, 2020, but was reset to September 25, 2020, given the then
existing Covid-19 response protocols. Appellant was required to complete the program,
including a 10-hour online theft prevention course, before September 25, 2020.
{¶3} On September 25, 2020, Appellant did not appear for the hearing and did
not provide proof of program completion. That same day, the court noted that it would
give Appellant one final two-week extension of time, until October 9, 2020, and if he
remained not fully compliant, the court would remove him from the program. See Tr.
8/7/24, p. 4. On October 9, 2020, although Appellant’s counsel informed the court that
Appellant did complete the program, counsel did not have proof of completion. Tr. at pp.
4-5. As a result, the court removed Appellant from the program. The court set a pre-trial
date for October 30, 2020. Appellant failed to appear on October 30, 2020. The court
issued a bench warrant for his failure to appear and set bond at $5,000.00. For nearly
four years, Appellant did not follow up with the court or otherwise attempt to appear. Appellant was apparently living in New York most of that time and ultimately learned in
mid-2024 that his warrant remained outstanding.
{¶4} On June 7, 2024, Appellant, by and through his counsel Andrew Zumbar,
filed a Motion to Seal Appellant’s record and to re-accept Appellant into the diversion
program. On July 16, 2024, Appellant's motion was denied. In its Entry, the court stated
that Appellant simply failed to comply with the terms of the program and did not submit
his certificate of compliance until four years after the fact. On August 7, 2024, Appellant
appeared before the court with counsel for his arraignment, and counsel renewed his
Motion to readmit Appellant to diversion. The court denied the Motion, stating “I set forth
my reasons abundantly clear. Four years is long enough to wait for him.” Tr. 8/7/24, pp.
5-6. After further discussion, the matter was set for pretrial for September 4, 2024.
{¶5} Eventually and as the result of discussions between Appellant’s counsel
and the State, on October 14, 2024, the State agreed to amend the original charge of
theft to one count of criminal mischief, a fourth-degree misdemeanor. Appellant agreed
to plead “no contest” and the court found him guilty of same. That same day, the court
sentenced Appellant to 30 days in jail (27 suspended), with the option to serve 60 hours
of community service in lieu of 3 days jail time. The court required Appellant to complete
his community service before January 31, 2025. Appellant timely provided evidence of
his completion of community service. Appellant timely filed this appeal.
ASSIGNMENT OF ERROR
{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REMOVED APPELLANT FROM THE DIVERSION PROGRAM.” STANDARD OF REVIEW
{¶7} “Generally, an appellate court will not overturn the sentence imposed on a
misdemeanor offender absent an abuse of discretion by the trial court.” In Adams, the
Ohio Supreme Court stated that the term abuse-of-discretion “connotes more than an
error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157–158 (1980); State v. Horton,
2017-Ohio-8549, ¶ 36 (10th Dist.); State v. Jenkins, 15 Ohio St.3d 164, 222 (1984) (An
abuse of discretion implies that the trial court's attitude, as evidenced by its decision, was
unreasonable, arbitrary, or unconscionable.”) Under the facts in this case, we conclude
the trial court did not abuse its discretion.
ANALYSIS
{¶8} Although Appellant does not appeal his misdemeanor sentence per se and
instead argues that he should not have been removed from diversion and/or should have
been readmitted, it provides clarity to review the applicable sentence provisions. R.C.
2929.21 et seq. governs penalties for misdemeanor offenses. R.C. 2929.21 establishes
the overriding purposes of misdemeanor sentencing, with subsection (A) stating: “The
overriding purposes of misdemeanor sentencing are to protect the public from future
crime by the offender and others and to punish the offender. To achieve those purposes,
the sentencing court shall 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(B)
provides: A sentence imposed for a misdemeanor * * * shall be reasonably calculated
to achieve the two overriding purposes of misdemeanor 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 offenses committed by similar
offenders. (*Will you check this to make sure it’s the exact language?)
{¶9} Further, unless jail time is mandatory for a misdemeanor offense, a court
that imposes a sentence upon an offender for a misdemeanor or minor misdemeanor has
discretion to determine the most effective way to achieve the purposes and principles of
sentencing. Horton, ¶ 38, citing R.C. 2929.22(A). Subsection (B) establishes factors a
trial court is required to consider in determining the appropriate sentence for a
misdemeanor. See R.C. 2929.22(B)(1) and (2). Further, R.C. 2929.22(C) generally
requires a trial court to consider the appropriateness of imposing a community control
sanction or a combination of community control sanctions before imposing a jail term.
{¶10} Here, Appellant claims the trial court abused its discretion in removing him
from the diversion program in 2020 and then failing to readmit him into the program in
2024, because at the October 9, 2020, hearing counsel informed the court that Appellant
fully completed the program. Appellant further claims the court did not consider the fact
that since 2020, he has remained a law-abiding citizen. Additionally, Appellant believes
that because COVID restrictions were in place in 2020, it was not unreasonable for the
delay in getting his completion certificate to either his trial counsel or the trial court. {¶11} Contrary to Appellant’s arguments, we find that the court gave Appellant
ample opportunity to appropriately handle this matter from the beginning. As fully set
forth above, the trial court initially allowed Appellant admission into the theft diversion
program rather than imposing any jail time or any other sanction. The court gave
Appellant nearly seven months to complete the program and provide proof of completion.
When Appellant failed to provide the requisite proof at the initial deadline of
September 25, 2020, the court offered him a two-week extension, until October 9, 2020.
The court also gave counsel a warning that Appellant would be removed from the program
if the terms were not fully complied with by the hearing on October 9, 2020. Once again,
however, Appellant did not appear before the court and did not provide proof of
completion.
{¶12} Under these circumstances, and in conjunction with the above purposes of
sentencing for misdemeanors, the decision to both remove Appellant from the program
in 2020, and later deny him readmittance was not unreasonable, arbitrary or capricious.
Appellant clearly did not take the matter seriously. Indeed, he failed to appear before the
court for nearly 4 years since the time of the initial theft charge. Such failure to address
the matter appropriately from the beginning is not the court’s fault; it is Appellant’s. The
court was abundantly clear as to its reasons for denying readmittance in its Judgment
Entry and the frustration with Appellant was likewise made clear at the August 7, 2024,
arraignment hearing. Counsel stated that it was his understanding that Appellant could
simply do ten days of civic improvement, and the court replied:
THE COURT: That would have been available to him had he been a first
time offender and had he addressed this matter appropriately at the beginning. He chose not to do so. So the Court is disinclined to give the
alternative of ten days CIP. Do you want me to go through the record and
put the facts on the record pursuant to the clear status of this case or just
allow the matter to stand as indicated?
ATTY. PALUMBO: Allow the matter to stand.
THE COURT: Alright and the Court record speaks for itself. You know as
well as I do it’s been four years since he set forth in this courtroom.
ATTY. PALUMBO: I understand that. It is accurate Your Honor.
Tr. at p. 6.
{¶13} Subsequently, as the result of discussions with the State, Appellant decided
to plead no contest to the amended lesser charge of criminal mischief rather than the
original charge of theft. The court imposed 30 days jail time with 27 days suspended and
allowed Appellant to perform community service in lieu of the 3 days in jail. The court
even agreed that Appellant could perform such community service in New York where he
was living so he would not be further inconvenienced in having to come to Ohio. In the
final analysis, the court afforded Appellant every leniency that Appellant deserved. There
is simply no evidence that the trial court's attitude was unreasonable, arbitrary, or
unconscionable. Thus, Appellant’s assignment of error is overruled. CONCLUSION
{¶14} Appellant’s sole assignment of error is overruled, and the judgment of the
Alliance Municipal Court, Stark County, Ohio is affirmed.
By: Montgomery, J.
Baldwin, P.J. and
Popham, J. concur.