State v. Nelder

2025 Ohio 2906

• Court: Ohio Court of Appeals
• Decided: August 14, 2025
• Docket: 25 CO 0003
• Status: Published

Opinion

[Cite as State v. Nelder, 2025-Ohio-2906.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

JON C. NELDER,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 25 CO 0003

Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2023 CR 706

BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT: Affirmed.

Atty. Vito J. Abruzzino, Columbiana County Prosecutor, Atty. Danielle Menning and Atty. Bret R. Hartup, Assistant Prosecutors, for Plaintiff-Appellee

Atty. Michael A. Partlow, for Defendant-Appellant

Dated: August 14, 2025 –2–

WAITE, J.

{¶1} Appellant Jon C. Nelder appeals the January 13, 2025 judgment entry of

the Columbiana County Common Pleas Court convicting him of pandering obscenity

involving a minor and tampering with the evidence. Appellant contests the trial court’s

imposition of consecutive sentences. For the reasons that follow, Appellant’s arguments

are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} This appeal is the result of a plea agreement. The case began after law

enforcement received a tip that Appellant’s email address may contain child pornography

images. Law enforcement obtained a search warrant for Appellant’s residence, and

Appellant was at home during the execution of the warrant. At one point, an officer saw

Appellant reach for a computer mouse attached to a computer. The officer told Appellant

not to touch anything, as such action on his part could result in a charge of tampering with

evidence. Among other items, police located three cell phones during the search. These

were placed on a table while the search continued. Not long after, an officer noticed one

of the phones was missing. Although Appellant initially denied any part in the phone’s

disappearance, he eventually admitted that he had taken the phone and placed it

underneath a couch cushion. When police retrieved the phone, an officer found the

phone’s photo folder was open to a video of a ten-year-old child engaged in a sex act.

Apparently, Appellant was watching the video.

{¶3} As a result of the search, 492 images of child pornography were recovered

from Appellant’s phones and computer. While it is not necessary to describe the content

Case No. 25 CO 0003 –3–

of specific photographs or video, we note these consist of images depicting children as

young as the age of two engaged in sex acts.

{¶4} Consequently, on March 6, 2024, Appellant was indicted on fifty-one counts

of various child sexual misconduct felony charges, and a single charge of tampering with

the evidence. On September 18, 2024, Appellant pleaded guilty to nineteen of the

indicted charges: one count of tampering with evidence, a felony of the third degree in

violation of R.C. 2921.12(A)(1); and eighteen counts of pandering obscenity involving a

minor, felonies of the fourth degree in violation of R.C. 2907.321(A)(5).

{¶5} On January 13, 2025, the trial court imposed the following sentence: twelve

months of incarceration on the tampering conviction, and fifteen months on each of the

eighteen pandering convictions, which were ordered to run consecutively. Appellant

asked the court at the sentencing hearing to provide him with the aggregate total, which

the court said it was unable to provide. While this information should have been provided

by the court, the total amounts to twenty-three and one-half years of incarceration.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO

SENTENCES TO BE SERVED CONSECUTIVELY, AS THE RECORD

DOES NOT SUPPORT SUCH A SENTENCE.

{¶6} It is difficult to discern Appellant’s exact argument. In his statement of facts

Appellant includes facts that appear to be leading to some challenge to the imposition of

consecutive sentences based on his mental health issues and relatively clean criminal

history. However, these arguments are not actually raised. While the language of

Case No. 25 CO 0003 –4–

Appellant’s stated assignment of error frames the argument as a challenge as to whether

the record supports the imposition of consecutive sentences, his actual argument, in

essence, asks this Court to overrule the Ohio Supreme Court’s precedent concerning the

standard of review for felony sentencing.

{¶7} The state addresses Appellant’s mental health and criminal history as it may

have impacted sentencing, and argues that the trial court made the requisite findings as

required by R.C. 2929.14(C)(4). The state does not address Appellant’s complaints about

the felony sentencing standard of review.

{¶8} The standard for our review of a felony sentence, including any imposition

of a consecutive sentence, is found within R.C. 2953.08(G)(2):

The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The

appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

Case No. 25 CO 0003 –5–

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶9} In his brief, Appellant cites to State v. Glover, 2024-Ohio-5195, claiming that

the existence of not only a majority, but also concurring and dissenting opinions, make it

apparent that the felony sentencing standard of review has not been settled. Appellant

would have us, instead, to apply a more detailed and involved review in this matter.

{¶10} Contrary to Appellant’s arguments, the Ohio Supreme Court is clear that

despite the various dissents, the standard of review has been settled since the Court’s

decision in State v. Marcum, 2016-Ohio-1002. Unless and until the Ohio Supreme Court

changes its current precedent, we are bound by the law and Supreme Court precedent,

which Appellant’s counsel conceded at oral argument in this matter.

{¶11} We note that while Appellant made only one passing reference to “due

process” in his brief, he focused on a due process analysis at oral argument. However,

he concedes that he failed to adequately raise and preserve this issue in the trial court.

Additionally, while he uses the two words “due process” in this passing reference in his

brief, without any legal citation or argument this mere mention is insufficient to raise a

constitutional issue on appeal.

{¶12} While Appellant’s brief contains discussion of his poor mental health and

limited criminal record, no actual argument was raised addressing these facts in his

assignment of error. Even so, and as the state believes this is Appellant’s contention on

appeal, we will address this issue.

Case No. 25 CO 0003 –6–

{¶13} The court indicated that it had received the presentence investigation report

(“PSI”) and noted that Appellant had a very limited criminal record. (Sentencing Hrg., p.

20.) However, the court stated that it must weigh Appellant’s mental struggles and

relatively clean criminal record against the heinous nature of the current crimes. Thus,

the record demonstrates the court properly considered those factors when determining

Appellant’s sentence.

{¶14} In addition, Appellant claims that he demonstrated remorse for his actions.

Contrary to his claims, here, it is questionable that he expressed true remorse. At the

sentencing hearing, he stated:

I would like to say that, Your Honor, this honestly is the result of the

mental health that I was stupid enough to put the info to get into my

computer and phone on. I didn’t get the time to prove it with an expert

because my case was pushed through the Court so fast.

(Sentencing Hrg., pp. 12-13.)

{¶15} He also alleged that his Google (Gmail) email account had been hacked.

He alleged that this hacker was responsible for the images being sent to his email

address. (Sentencing Hrg., p. 14.) Thus, he did not actually accept responsibility for his

crimes as he claims on appeal.

{¶16} Appellant also describes his criminal record as containing only one minor

incident that occurred in North Carolina. While Appellant is correct in that he has a limited

criminal history, his PSI reveals he had two (not one) criminal incidents; one in North

Carolina and one in Georgia. The North Carolina incident involved a 2007 conviction for

Case No. 25 CO 0003 –7–

larceny by an employee, a felony which was amended to a misdemeanor offense. The

Georgia matter involved a misdemeanor marijuana charge that was nolled.

{¶17} Appellant technically does not challenge the court’s compliance with the

relevant statute or that the court made the requisite R.C. 2929.14(C)(4) findings, and his

analysis is very limited. Relevant law provides that a trial court must make consecutive

sentence findings at the sentencing hearing and incorporate the findings into the

sentencing entry. State v. Bonnell, 2014-Ohio-3177, ¶ 37. Pursuant to R.C.

2929.14(C)(4), consecutive sentences can be imposed if:

[T]he court finds that the consecutive service is necessary to protect

the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender's

conduct and to the danger the offender poses to the public, and if the court

also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to [R.C. 2929.16-18], or was under post-release control

for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

Case No. 25 CO 0003 –8–

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶18} The sentencing court is not required “to give a talismanic incantation of the

words of the statute.” State v. Jones, 2024-Ohio-1083, ¶ 11, quoting Bonnell at ¶ 37.

Rather, if an appellate court can “glean from the record that the court” made the contested

consecutive sentence findings, then its findings are sufficient. Bonnell at ¶ 36. A trial

court is not required to set forth reasons to support its consecutive sentence findings. Id.

at ¶ 37.

{¶19} Appellant does not contend that the trial court failed to make the requisite

consecutive findings at the sentencing hearing or within its judgment entry. A review of

the sentencing hearing transcripts and the court’s judgment entry reflects that all

necessary findings were made.

{¶20} Because the court made all of the R.C. 2929.14(C)(4) findings, the court

properly imposed consecutive sentences. Contrary to Appellant’s argument, this Court

has limited authority in reviewing felony sentencing. To the extent that Appellant appears

concerned that the trial court failed to recognize his mental health issues and relatively

clean criminal record, the record shows that the court properly considered these matter

in accordance with R.C. 2929.12(E),(F).

Conclusion

{¶21} Appellant contests the trial court’s imposition of consecutive sentences and

the standard by which this Court is to review Appellant’s sentence. This record reflects

Case No. 25 CO 0003 –9–

the trial court did not err in Appellant’s sentencing. Appellant’s arguments are without

merit and the judgment of the trial court is affirmed.

Robb, P.J. concurs.

Hanni, J. concurs.

Case No. 25 CO 0003 [Cite as State v. Nelder, 2025-Ohio-2906.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignment of

error is overruled and it is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.