State v. Nickelson

2023 Ohio 2105

• Court: Ohio Court of Appeals
• Decided: June 26, 2023
• Docket: 22-COA-037
• Status: Published

Opinion

[Cite as State v. Nickelson, 2023-Ohio-2105.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellant : Hon. Andrew J. King, J. : -vs- : : Case No. 22-COA-037 ALISSA NICKELSON : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 21-CRI-162

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 26, 2023

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

CHRISTOPHER R. TUNNELL BENJAMIN W. ZUSHIN Ashland County Prosecutor 3465 South Arliington Road BY: NADINE HAUPTMAN Suite E, 213 Assistant Prosecutor Akron, OH 44312 110 Cottage Street. 3rd Floor Ashland, OH 44805 Ashland County, Case No. 22-COA-037 2

Gwin, P.J.

{¶1} Plaintiff-appellant the State of Ohio appeals from the October 7, 2022

sentencing entry of the Ashland County Court of Common Pleas sentencing defendant-

appellee Alissa Nickelson [“Nickelson”] to community control sanctions and reserving a

nine-month prison sentence.

Facts and Procedural History

{¶2} On August 12, 2021, an Ashland County Grand Jury returned a three-

count indictment against Nickelson, a Michigan resident, charging her in: Counts One and

Two with Complicity in the Commission of an Offense, in violation of R.C. 2923.03(A)(2)

and 2923.03(F), felonies of the second-degree; and Count Three with Falsification, in

violation of R.C. 2921.13(A)(3) and 2921.13(F)(1), a misdemeanor of the first degree.

Count One alleged Nickelson was complicit in committing the offense of Aggravated

Trafficking in Drugs, in violation of R.C. 2925.03(A)(2) and 2925.03(C)(1)(d); and Count

Two alleged she was complicit in the offense of Aggravated Possession of Drugs, in

violation of R.C. 2925.11 (A) and 2925.11 (C)(1)(c). The drug at issue in both counts

was Flualprazolam, a Schedule I drug, between five and fifty times the bulk amount.

{¶3} In exchange for Nickelson’s guilty plea, the state reduced Count Two to

Complicity in the Commission of an Offense, a felony of the third degree. Waiver of

Constitutional Rights and Plea of Guilty, filed Aug. 23, 2022 [Docket Entry No. 29]; Sent.

T. at 17-18. The state further moved to dismiss Counts One and Three of the Indictment.

Judgment Entry, filed Aug. 23, 2022 at 2. [Docket Entry No. 30]. The trial court accepted

Nickelson’s change of plea and set the matter for sentencing on September 26, 2022.

Id. Ashland County, Case No. 22-COA-037 3

{¶4} Due to unforeseen medical issues with the judge, a visiting judge was

assigned and the sentencing hearing was continued to September 29, 2022. Judgement

Entry, filed September 22, 2022. [Docket Entry No. 31].

{¶5} During the sentencing hearing, the state requested a sentence of

incarceration which “could be in a local jail or prison.” Sent. T. at 6. The state deferred to

the visiting judge’s discretion to determine the length of incarceration. Id.

{¶6} On September 29, 2022, the trial judge sentenced Nickelson as follows,

Okay. I am going to in this case, because again, I appreciate the

Prosecutor's position, and the things that you said, Mike, in terms of the

Criminal Rule Agreement that was ultimately entered into and the

significance of the Felony of the 3rd Degree as opposed to the Felony of

the 4th or 5th Degree in this case.

So, I am going to select from the range of imprisonment, the

minimum, nine months but not order you to prison. I am reserving that. You

are not going to prison, so you can just take a deeper breath now and

understand that.

***

So again, the minimum term in prison for a Felony of the 3rd Degree

is nine months. I am selecting that minimum, but not ordering you there. I

am reserving it or suspending it is a term that you hear.

And I am going to Order one year of supervision. Ashland County, Case No. 22-COA-037 4

Sent. T. at 22-23. The trial court advised Nickelson, “Of course you know that a violation

could result in your going back to jail or could result in the most draconian sanction that

would be going to prison for the nine months that are reserved.” Id. at 26.

{¶7} The visiting judge ordered that Nickelson be supervised during the first six

months of her probation at a “High ORAS level, with a minimum of one face-to-face

contact with [her] supervising officer.” Judgment Entry-Sentencing, filed Oct. 7, 2022.

The remainder of her term was to be supervised at a “Moderate ORAS level with a

minimum of one face to face contact every three months….” Id. (emphasis in original).

Assignments of Error

{¶8} The state raises two Assignments of Error,

{¶9} “I. A SENTENCING COURT ABUSES ITS DISCRETION, AND IMPOSES

A SENTENCE THAT IS OTHERWISE CONTRARY TO LAW, WHEN IT FASHIONS [A]

SENTENCE PURSUANT TO A BLANKET SENTENCING POLICY BASED ON

PERSONAL CONVICTION AND MORAL OPPOSITION TO PRISON AS A

SENTENCING OPTION FOR THOSE CONVICTED OF DRUG POSSESSION

OFFENSES.

{¶10} “II. [A] SENTENCE THAT IMPOSES BOTH A PRISON TERM AND

COMMUNITY CONTROL SANCTIONS, AND FAILS TO OTHERWISE COMPLY WITH

R.C. CHAPTER 2929, IS CONTRARY TO LAW.”

I.

{¶11} In the state’s First Assignment of Error, the state maintains that Nickelson’s

sentence is contrary to law because the visiting judge followed a blanket policy of not

sentencing defendants convicted of drug possession offenses to a term of incarceration. Ashland County, Case No. 22-COA-037 5

Standard of Appellate Review

{¶12} The state is permitted to appeal as a matter of right a sentence imposed

upon a defendant who is convicted of or pleads guilty to a felony if the sentence is contrary

to law. R.C. 2953.08(B)(2).

{¶13} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to

review the entire trial-court record, including any oral or written statements and

presentence-investigation reports. R.C. 2953.08(F)(1) through (4).

{¶14} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28.

Our standard of review is de novo. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-

4761, 141 N.E.3d 169, ¶ 27.

{¶15} The Ohio Supreme Court reviewed the issue of “whether a sentence is

“contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds that the

record does not support a sentence with respect to R.C. 2929.11 and 2929.12. State v.

Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. Although a court imposing

a felony sentence must consider the purposes of felony sentencing under R.C. 2929.11

and the sentencing factors under R.C. 2929.12, “neither R.C. 2929.11 nor 2929.12 Ashland County, Case No. 22-COA-037 6

requires [the] court to make any specific factual findings on the record.” Id. at ¶ 20, citing

State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, and State

v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). 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.”

{¶16} “‘Otherwise contrary to law’ means “‘in violation of statute or legal

regulations at a given time.’” Jones at ¶34 quoting Black’s Law Dictionary 328 (6th Ed.

1990). Accordingly, when a trial court imposes a sentence based on factors or

considerations that are extraneous to those that are permitted by R.C. 2929.11 and

2929.12, that sentence is contrary to law. Claims that raise these types of issues are

therefore reviewable. State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d

68, ¶22.

Purposes and Principles of Felony Sentencing - R.C. 2929.11

{¶17} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes. In Ashland County, Case No. 22-COA-037 7

order to achieve these purposes and principles, the trial court must 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. R.C. 2929.11(A). Additionally, the sentence “must be commensurate with, and

not demeaning to, the seriousness of the offender’s conduct and its impact on the victims

and consistent with sentences imposed for similar crimes by similar offenders.” R.C.

2929.11(B).

Seriousness and Recidivism - R.C. 2929.12

{¶18} R.C. 2929.12 is a guidance statute that sets forth the seriousness and

recidivism criteria that a trial court “shall consider” in fashioning a felony sentence.

Subsections (B) and (C) establish the factors indicating whether the offender’s conduct is

more serious or less serious than conduct normally constituting the offense. These

factors include the physical or mental injury suffered by the victim due to the age of the

victim; the physical, psychological, or economic harm suffered by the victim; whether the

offender’s relationship with the victim facilitated the offense; the defendant’s prior criminal

record; whether the defendant was under a court sanction at the time of the offense;

whether the defendant shows any remorse; and any other relevant factors. R.C.

2929.12(B). The court must also consider any factors indicating the offender’s conduct

is less serious than conduct normally constituting the offense, including any mitigating

factors. R.C. 2929.12(C). Subsections (D) and (E) contain the factors bearing on whether

the offender is likely or not likely to commit future crimes. Ashland County, Case No. 22-COA-037 8

Issue for Appellate Review: Whether Nickelson’s sentence was imposed

based on impermissible considerations—i.e., considerations that fall outside those that

are contained in R.C. 2929.11 and 2929.12.

{¶19} A “blanket policy” is a policy that is imposed as a matter of course without

any consideration of the facts and circumstances of each case. State v. Beasley, 152

Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶13. The state argues that the sentence

is contrary to law because in a separate case, the trial judge made certain comments on

the record.1 However, we find no evidence in the record of this case that the judge made

similar comments. Although a trial court abuses its discretion when it adheres to a blanket

policy, that is not what occurred here. State v. Hill, Slip Op. No. 2021-0913, 2022-Ohio-

4544 (Dec. 20, 2022), ¶16. The visiting judge reviewed the PSI, heard the arguments

from the state’s attorney, Nickelson’s attorney, and from Nickelson. In the case at bar,

the state agreed that the factors concerning recidivism contained in R.C. 2929.12(D) and

(E) were equally balanced. Sent. T. at 6. The visiting judge noted that Nickelson’s Ohio

Risk Assessment System score (ORAS) was “really low.” Sent. T. at 11. He further noted

that Nickelson was amenable to community control. Judgment Entry-Sentencing, filed

Oct. 7, 2022 at 2. The visiting judge considered the state’s position, the fact that the

charges were reduced, and that the offense was a felony of the third degree, rather than

a felony of the fourth or fifth degree. Sent. T. at 22. Unlike the case cited by the state in

which no prison sentence was reserved, in the case at bar the visiting judge reserved a

prison sentence in the event Nickelson were to violate her community control sanctions.

1 State v. Coffman, 5th Dist. Ashland No. 22-COA-036. Ashland County, Case No. 22-COA-037 9

Upon review, we find that the trial court’s sentencing on the charge complies with

applicable rules and sentencing statutes.

{¶20} Although a trial court’s statements concerning its “policy” may be unwise,

in the case at bar we find that under the facts of this case, the trial court did not arbitrarily

refuse to consider the facts and circumstances presented. State v. Garcia, 5th Dist.

Tuscarawas No. 2018AP060024, 2018-Ohio-4818, ¶ 21. The record supports that the

visiting judge sentenced Nickelson based upon the facts and circumstances before him,

not on a blanket policy that affects all defendants regardless of their situation. If we

remove the remarks made by the visiting judge, the state can cite to nothing within the

record of Nickelson’s case that would prohibit any judge from imposing the identical

sentence. Here the visiting judge’s reasoning is not legally incorrect or untenable and the

decision does not reach an end or purpose not justified by reason and the evidence. The

decision to impose community control sanctions does not amount to a denial of justice.

{¶21} Upon a thorough review, we find the record clearly and convincingly

supports the sentence imposed by the visiting judge. We find the visiting judge properly

considered the purposes and principles of sentencing set forth in R.C. 2929.11, as well

as the applicable factors set forth in R.C. 2929.12, along with all other relevant factors

and circumstances. Nickelson’s sentence was within the applicable statutory range, and

within the judge’s discretion to impose. Therefore, we have no basis for concluding that

it is contrary to law.

{¶22} We hold that the state has not shown that the trial court imposed the

sentence based on impermissible considerations—i.e., considerations that fall outside

those that are contained in R.C. 2929.11 and R.C. 2929.12. Ashland County, Case No. 22-COA-037 10

{¶23} The state’s First Assignment of Error is overruled.

II.

{¶24} In the Second Assignment of Error, the state argues the sentence

impermissibly consists of both a nine-month prison term (suspended) and community

control sanctions - the sentencing court had discretion to do one or the other but not

both. [Appellant’s Brief at 22]. The state further argues that the visiting judge did not

properly impose community control and did not properly transfer Community Control to

the State of Michigan.

{¶25} R.C. 2929.15(A)(1) governs the authority of the trial court to impose

conditions of community control. That section provides that when sentencing an offender

for a felony, the trial court may impose one or more community sanctions, including

residential, nonresidential, and financial sanctions, and any other conditions that it

considers “appropriate.” The General Assembly has thus granted broad discretion to trial

courts in imposing community-control sanctions. We review the trial court’s imposition of

community-control sanctions under an abuse-of-discretion standard. State v. Talty, 103

Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶10. Generally, a court will not be

found to have abused its discretion in fashioning a community-control sanction as long as

the condition is reasonably related to the probationary goals of doing justice, rehabilitating

the offender, and insuring good behavior. Id. at ¶ 12. This means courts must “consider

whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some

relationship to the crime of which the offender was convicted, and (3) relates to conduct

which is criminal or reasonably related to future criminality and serves the statutory ends Ashland County, Case No. 22-COA-037 11

of probation.” State v. Jones, 49 Ohio St.3d 51, 53, 550 N.E.2d 469(1990).

Issue for Appellate Review: Whether the conditions of Nickelson’s

community control are reasonably related to the probationary goals of doing justice,

rehabilitating the offender, and insuring good behavior

{¶26} Terms of incarceration in a community-based correctional facility, a halfway

house, or a local jail are called “community residential sanctions,” and a court sentencing

for a felony is authorized to impose “a term of up to six months in a jail.” R.C. 2929.16(A).

Local probation, day reporting, house arrest, community service, and curfew are classified

as “nonresidential sanctions.” R.C. 2929.17 (“the court imposing a sentence for a felony

upon an offender who is not required to serve a mandatory prison term may impose any

nonresidential sanction or combination of nonresidential sanctions”). Restitution, fines,

and costs are “financial sanctions.” R.C. 2929.18(A). In short, the statutes authorize a

broad variety of community-control sanctions, and trial courts are empowered to “impose

any other conditions of release under a community control sanction that the court

considers appropriate * * *.” R.C. 2929.15(A)(1). State v. Amos, 140 Ohio St.3d 238,

2014-Ohio-3160, 17 N.E.3d 528, ¶11. The statute makes clear the legislature intended

trial courts should have discretion to fashion community-control sentences that punish

and protect but do not unnecessarily waste scarce resources. Id. at ¶ 12. This statute

by its plain terms directs the trial court to conserve resources when possible by imposing

a “fine-only” sentence for a felony offense. Id. at ¶ 13.

{¶27} The Ohio Supreme Court has stated that “[p]ursuant to R.C. 2929.19(B)(5)

[now R.C. 2929.19(B)(4)], and 2929.15(B) a trial court sentencing an offender to a

community control sanction must, at the time of the sentencing, notify the offender of the Ashland County, Case No. 22-COA-037 12

specific prison term that may be imposed for a violation of the conditions of the sanction,

as a prerequisite to imposing a prison term on the offender for a subsequent violation.”

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, paragraph two of

the syllabus. (Emphasis added).

{¶28} The visiting judge clearly and unequivocally reserved a nine-month prison

sentence in the event Nickelson were to violate her community control provisions. Sent.

T. at 22-23; 26; Judgment Entry-Sentencing at 1-2. The judge’s reference to “jail” was in

reference to the court’s authority to impose a longer time under the same sanction,

impose a more restrictive sanction, or impose a prison term for a violation of community

control. R.C. 2929.19(B)(4).

{¶29} The state clearly indicated that the local probation department, not the trial

court, contacts the out of state probation department. Sent. T. at 24. The trial judge

acknowledged that until the probation department in Michigan accepts supervision,

Nickelson would remain under the supervision of the Ashland County Probation

Department. Id. at 24. The visiting judge further directed the local probation department

contact the out-of-state probation department to request the transfer. Id. at 25. The

visiting judge further noted that, “The Defendant SHALL abide by and follow general rules,

regulations and/or special condition recommendations of the Adult Parole Authority, and

she shall obey all laws and all orders of the Court.” Judgment Entry-Sentencing at 3.

Further, Nickelson’s community control is to be supervised throughout its term.

{¶30} R.C. 2929.15(A) authorizes a trial court to require an offender “abide by

the law.” In addition to requiring an offender to “abide by the law,” R.C. 2929.15(A)

gives the trial court discretion to “impose any other conditions of release under a Ashland County, Case No. 22-COA-037 13

community control sanction that the court considers appropriate, including, but n ot

limited to, requiring that the offender not ingest or be injected with a drug of abuse....”

{¶31} Thus, the state’s argument that the visiting judge did not properly impose

conditions of community control, or cause a proper transfer of the community control is

not supported by the record. [Appellant’s brief at 22].

{¶32} We find that the conditions given to Nickelson are not overly broad, are

reasonably related to rehabilitating her, have some relationship to the crime of which

Nickelson was convicted, and relates to conduct which is criminal or reasonably related

to future criminality and serves the statutory ends of probation. State v. Jones, 49 Ohio

St.3d 51, 53, 550 N.E.2d 469(1990). We hold the sentence is not contrary to law.

{¶33} The state’s Second Assignment of Error is overruled.

{¶34} The judgment of the Ashland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

King, J., concur