State v. Nelson

2016 Ohio 2692

• Court: Ohio Court of Appeals
• Decided: April 25, 2016
• Docket: 2015-T-0074
• Status: Published

Opinion

[Cite as State v. Nelson, 2016-Ohio-2692.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2015-T-0074 - vs - :

KEITH ERICK NELSON, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR 0009.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant- Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Keith E. Nelson, timely appeals his sentence after pleading

guilty to attempted felonious assault. He argues that the trial court erroneously imposed

the maximum prison term. For the following reasons, we affirm.

{¶2} Nelson and his live-in girlfriend returned to his home from a bar in

December 2014. Nelson had been jealous that night and started beating her without

notice, punching her in the head multiple times. Officers responded and found the victim covered in blood and suffering from a concussion. She had several cuts on her

head and her face was swollen and red. Officers also found a large clump of her hair in

the garage, a pool of blood in the driveway, blood near a wood pile, and a broken lamp

in the garage.

{¶3} The victim was in a daze and unable to fully tell officers what had

happened to her. She kept repeating herself. She was transported to the hospital via

ambulance where she was diagnosed as suffering a subdural hematoma and

subarachnoid hemorrhage resulting from the facial trauma.

{¶4} Nelson was indicted and charged with felonious assault, a second-degree

felony, and domestic violence, a first-degree misdemeanor in violation of R.C.

2903.11(A)(1)(2) and 2919.25(A). He later pleaded guilty to a reduced charge of

attempted felonious assault, and the domestic violence charge was dismissed. He was

sentenced to 36 months in prison with three years mandatory post-release control and

ordered to pay restitution.

{¶5} Nelson’s sole assigned error asserts:

{¶6} “The trial court erred by imposing the maximum sentence upon the

appellant.”

{¶7} R.C. 2953.08(G)(2) dictates our standard of review, State v. Long, 11th

Dist. Lake No. 2013-L-102, 2014-Ohio-4416, ¶71, which states:

{¶8} “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.

{¶9} “The appellate court may increase, reduce, or otherwise modify a

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

2 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:

{¶10} “(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 section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

{¶11} “(b) That the sentence is otherwise contrary to law.” (Emphasis added.)

{¶12} The prosecution stated at the plea hearing that the evidence at trial would

have proven: “the defendant and the victim became engaged in an oral argument.

During that time, the defendant became more agitated. At one point he began punching

the victim in the face and he placed her in a chokehold which caused her to lose

consciousness and seek medical attention.”

{¶13} At sentencing the state asked for the imposition of prison time and

emphasized that Nelson violated the court’s no-contact order before sentencing by

having another inmate write to the victim. This letter included personal drawings from

Nelson to the victim.

{¶14} The victim spoke at sentencing, stating:

{¶15} “The severity of my injuries that I incurred as a result of the brutal beating

has affected my life physically, financially, and emotionally. * * * While I am improving

on a daily basis, I’ve been seeing a neurosurgeon once a month, and I have undergone

a series of CAT scans. Luckily each * * * shows improvement, and I am very optimistic

that the next one * * * will hopefully be the last and allow me to return to work on a full-

time basis.

3 {¶16} “* * * I’m also undergoing psychological counseling and am suffering from

post-traumatic stress disorder. I’m afraid that this assault will haunt me for the rest of

my life.

{¶17} “* * *

{¶18} “In my opinion, Mr. Nelson shows no signs of remorse for what he did to

me. He has taunted me in the courtroom in the past. * * *

{¶19} “Your honor, I do ask that you impose a maximum sentence on Mr.

Nelson, not only for my safety but also for the safety of all women. I wish that I had

been aware of his history of domestic violence and that I could have avoided this

tragedy that has affected my life in such a negative way.”

{¶20} Nelson denied having a history of domestic violence. He admitted being

charged with assault on a male, but denied ever hitting a woman. When asked by the

court to describe what he did to the victim, Nelson said:

{¶21} “It was poor decisions by both parties. * * *

{¶22} “I defended myself, and with adrenalin and, fear, I, you know, reached out

and defused the situation. And that’s all I did.”

{¶23} Nelson also denied having anything to do with the letter sent to the victim

during his time in the county jail.

{¶24} Upon ordering Nelson to serve the maximum, 36-month prison term, the

trial court stated that it had “considered the overriding principles and purposes of felony

sentencing, further has considered all seriousness and recidivism factors. The Court

finds the sentence to be proportional to the defendant’s conduct as well as consistent

with similarly situated offenders.”

4 {¶25} It then found that “the defendant has a history of similar offenses, he has

minimized his involvement in the instant case, and the victim had suffered severe

physical harm.” It also found in its sentencing entry, “(1) the Defendant has a history of

convictions for similar offenses; (2) that the Defendant contacted the victim in violation

of bond; and (3) that the victim suffered serious physical harm.”

{¶26} Although Nelson correctly points out that there was no evidence that he

had been previously convicted of domestic violence, he had two prior charges for

domestic violence and a prior conviction for assault. The presentence investigation

report confirms that Nelson pleaded guilty to disorderly conduct on one occasion and

the other domestic violence charge was dismissed. Nelson was convicted of assault

following a jury trial in 2001. Accordingly, we cannot conclude that the trial court erred

in stating that Nelson had a history of similar offenses.

{¶27} Furthermore, its imposition of the maximum sentence is supported by the

severe nature of his victim’s injuries as well as Nelson’s failure to accept responsibility,

his lack of remorse, and his violation of the no-contact order pending sentencing. Thus,

the trial court’s imposition of the maximum allowable prison term was supported by the

record and is not clearly and convincingly contrary to law. Nelson’s sole assigned error

lacks merit, and the trial court’s decision is affirmed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.