[Cite as State v. Nimmer, 2011-Ohio-1807.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95471
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ERIC NIMMER
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536479
BEFORE: Kilbane, A.J., Blackmon, J., and Rocco, J. RELEASED AND JOURNALIZED: April 14, 2011
ATTORNEY FOR APPELLANT
Rick Ferrara 1424 East 25 Street ht
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor MaRion D. Horhn Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Eric Nimmer (Nimmer), appeals his
sentence. Finding no merit to the appeal, we affirm.
{¶ 2} In April 2010, Nimmer was charged in Case No. CR-536479 with
breaking and entering, theft, and vandalism. Nimmer entered into a plea
agreement and pled guilty to breaking and entering. The remaining charges
were nolled. In December 2009, Nimmer pled guilty to burglary in Case No.
CR-529376, escape in Case No. CR-529334, breaking and entering in Case No. CR-530617, and passing bad checks and theft in Case No. CR-530641. In
January 2010, the trial court sentenced him to five years in prison in Case
No. CR-529376, to be served concurrent with Case Nos. CR-529334,
CR-530617, and CR-530641.
{¶ 3} In July 2010, at the sentencing hearing for Case No. CR-536479,
the trial court sentenced Nimmer to one year in prison, to be served
consecutive to his five-year sentence in Case No. CR-529376.
{¶ 4} Nimmer now appeals, raising the following two assignments of
error for review.
ASSIGNMENT OF ERROR ONE
“The trial court abused its discretion by imposing a sentence disproportionate with those previously imposed.”
ASSIGNMENT OF ERROR TWO
“The trial court acted contrary to law by imposing a consecutive sentence without considering sentencing factors under Ohio law.”
{¶ 5} The Ohio Supreme Court has set forth the applicable standard of
appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶4:
“In applying [State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard.”1
{¶ 6} Nimmer argues that the trial court acted contrary to law when it
failed to make the proper finding under R.C. 2929.14(E)(4) in light of the
United States Supreme Court’s rulings regarding judicial fact-finding in
Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, and
automatic statutory revival in Quong Ham Wah Co. v. Indus. Acc. Comm. of
California (1921), 255 U.S. 445, 41 S.Ct. 373, 65 L.Ed. 723.
{¶ 7} He claims that in State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme Court revived all portions
of R.C. 2929.14 that were severed in Foster. Thus, he contends that the
statutory findings required by R.C. 2929.14(E)(4) were revived by implication
since the Ohio legislature never repealed the statutory provisions that were
excised. We find Nimmer’s argument unpersuasive.
{¶ 8} In Hodge, the Ohio Supreme Court explicitly held that Ice “does
not revive Ohio’s former consecutive-sentencing statutory provisions, R.C.
2929.14(E)(4) and 2929.41(A), which were held unconstitutional in [Foster].
Trial court judges are not obligated to engage in judicial fact-finding prior to
1 We recognize Kalish is merely persuasive and not necessarily controlling because it has no majority. The Supreme Court split over whether we review sentences under an abuse-of-discretion standard in some instances. imposing consecutive sentences unless the General Assembly enacts new
legislation requiring that findings be made.” Id. at paragraphs two and
three of the syllabus. Thus, the trial court in the instant case was not
obligated to make findings prior to imposing a consecutive sentence.
{¶ 9} Nimmer further argues that his sentence in Case No. CR-536479
was contrary to law because it is disproportionate to the sentences imposed in
his other cases — Case Nos. CR-529334, CR-529376, CR-530617, and
CR-530641. In Case No. CR-529334, he was sentenced to one year in prison
for escape. In Case No. CR-529376, he was sentenced to five years in prison
for burglary. In Case No. CR-530617, he was sentenced to one year for
breaking and entering, and in Case No. CR-530641, he was sentenced to one
year for passing bad checks and theft. The court ordered that the sentences
in these cases be served concurrent to each other for an aggregate of five
years in prison. Nimmer claims that his one-year sentence for breaking and
entering should have been concurrent to these cases because those sentences
were for similar crimes he committed within two months of the offense in the
instant case.
{¶ 10} We note that “[c]onsistency in sentencing is achieved by weighing
the sentencing factors.” State v. Dowell, Cuyahoga App. No. 88864,
2007-Ohio-5534, ¶8, citing State v. Georgakopoulos, Cuyahoga App. No.
81934, 2003-Ohio-4341. As an appellate court, we are not required to decide whether the lower court “‘imposed a sentence in lockstep with others, but
whether the sentence is so unusual as to be outside the mainstream of local
judicial practice. Although the offense[s] may be similar, distinguishing
factors may justify dissimilar treatment.’” State v. Rabel, Cuyahoga App.
No. 91280, 2009-Ohio-350, ¶15, quoting State v. Dawson, Cuyahoga App. No.
86417, 2006-Ohio-1083.
{¶ 11} In the instant case, there is nothing in the record to demonstrate
that Nimmer’s sentence is “outside the mainstream of local judicial practice.”
His sentence of one year is the same as the one year the court imposed in
Case No. CR-530617 for breaking and entering. While the crimes may have
been committed within two months of each other, the State indicated that
Nimmer became a suspect in the instant case when a CODIS hit linked him
to DNA found at the scene of the incident. Moreover, his one-year sentence
is within the permissible statutory range for a fifth degree felony. On these
facts, we cannot conclude that his sentence is contrary to law.
{¶ 12} Having satisfied step one, we next consider whether the trial
court abused its discretion. An ‘“abuse of discretion’ connotes more than an
error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’” Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151,
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[Cite as State v. Nimmer, 2011-Ohio-1807.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95471
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ERIC NIMMER
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536479
BEFORE: Kilbane, A.J., Blackmon, J., and Rocco, J. RELEASED AND JOURNALIZED: April 14, 2011
ATTORNEY FOR APPELLANT
Rick Ferrara 1424 East 25 Street ht
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor MaRion D. Horhn Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Eric Nimmer (Nimmer), appeals his
sentence. Finding no merit to the appeal, we affirm.
{¶ 2} In April 2010, Nimmer was charged in Case No. CR-536479 with
breaking and entering, theft, and vandalism. Nimmer entered into a plea
agreement and pled guilty to breaking and entering. The remaining charges
were nolled. In December 2009, Nimmer pled guilty to burglary in Case No.
CR-529376, escape in Case No. CR-529334, breaking and entering in Case No. CR-530617, and passing bad checks and theft in Case No. CR-530641. In
January 2010, the trial court sentenced him to five years in prison in Case
No. CR-529376, to be served concurrent with Case Nos. CR-529334,
CR-530617, and CR-530641.
{¶ 3} In July 2010, at the sentencing hearing for Case No. CR-536479,
the trial court sentenced Nimmer to one year in prison, to be served
consecutive to his five-year sentence in Case No. CR-529376.
{¶ 4} Nimmer now appeals, raising the following two assignments of
error for review.
ASSIGNMENT OF ERROR ONE
“The trial court abused its discretion by imposing a sentence disproportionate with those previously imposed.”
ASSIGNMENT OF ERROR TWO
“The trial court acted contrary to law by imposing a consecutive sentence without considering sentencing factors under Ohio law.”
{¶ 5} The Ohio Supreme Court has set forth the applicable standard of
appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶4:
“In applying [State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard.”1
{¶ 6} Nimmer argues that the trial court acted contrary to law when it
failed to make the proper finding under R.C. 2929.14(E)(4) in light of the
United States Supreme Court’s rulings regarding judicial fact-finding in
Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, and
automatic statutory revival in Quong Ham Wah Co. v. Indus. Acc. Comm. of
California (1921), 255 U.S. 445, 41 S.Ct. 373, 65 L.Ed. 723.
{¶ 7} He claims that in State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme Court revived all portions
of R.C. 2929.14 that were severed in Foster. Thus, he contends that the
statutory findings required by R.C. 2929.14(E)(4) were revived by implication
since the Ohio legislature never repealed the statutory provisions that were
excised. We find Nimmer’s argument unpersuasive.
{¶ 8} In Hodge, the Ohio Supreme Court explicitly held that Ice “does
not revive Ohio’s former consecutive-sentencing statutory provisions, R.C.
2929.14(E)(4) and 2929.41(A), which were held unconstitutional in [Foster].
Trial court judges are not obligated to engage in judicial fact-finding prior to
1 We recognize Kalish is merely persuasive and not necessarily controlling because it has no majority. The Supreme Court split over whether we review sentences under an abuse-of-discretion standard in some instances. imposing consecutive sentences unless the General Assembly enacts new
legislation requiring that findings be made.” Id. at paragraphs two and
three of the syllabus. Thus, the trial court in the instant case was not
obligated to make findings prior to imposing a consecutive sentence.
{¶ 9} Nimmer further argues that his sentence in Case No. CR-536479
was contrary to law because it is disproportionate to the sentences imposed in
his other cases — Case Nos. CR-529334, CR-529376, CR-530617, and
CR-530641. In Case No. CR-529334, he was sentenced to one year in prison
for escape. In Case No. CR-529376, he was sentenced to five years in prison
for burglary. In Case No. CR-530617, he was sentenced to one year for
breaking and entering, and in Case No. CR-530641, he was sentenced to one
year for passing bad checks and theft. The court ordered that the sentences
in these cases be served concurrent to each other for an aggregate of five
years in prison. Nimmer claims that his one-year sentence for breaking and
entering should have been concurrent to these cases because those sentences
were for similar crimes he committed within two months of the offense in the
instant case.
{¶ 10} We note that “[c]onsistency in sentencing is achieved by weighing
the sentencing factors.” State v. Dowell, Cuyahoga App. No. 88864,
2007-Ohio-5534, ¶8, citing State v. Georgakopoulos, Cuyahoga App. No.
81934, 2003-Ohio-4341. As an appellate court, we are not required to decide whether the lower court “‘imposed a sentence in lockstep with others, but
whether the sentence is so unusual as to be outside the mainstream of local
judicial practice. Although the offense[s] may be similar, distinguishing
factors may justify dissimilar treatment.’” State v. Rabel, Cuyahoga App.
No. 91280, 2009-Ohio-350, ¶15, quoting State v. Dawson, Cuyahoga App. No.
86417, 2006-Ohio-1083.
{¶ 11} In the instant case, there is nothing in the record to demonstrate
that Nimmer’s sentence is “outside the mainstream of local judicial practice.”
His sentence of one year is the same as the one year the court imposed in
Case No. CR-530617 for breaking and entering. While the crimes may have
been committed within two months of each other, the State indicated that
Nimmer became a suspect in the instant case when a CODIS hit linked him
to DNA found at the scene of the incident. Moreover, his one-year sentence
is within the permissible statutory range for a fifth degree felony. On these
facts, we cannot conclude that his sentence is contrary to law.
{¶ 12} Having satisfied step one, we next consider whether the trial
court abused its discretion. An ‘“abuse of discretion’ connotes more than an
error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’” Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151,
157, 404 N.E.2d 144. {¶ 13} Here, the trial court indicated that it imposed a consecutive
sentence because Nimmer is a danger to the community and he has not
complied with his mental health treatment. The court further indicated that
Nimmer’s criminal history spans almost 20 years. Nimmer has “32 cycles” of
criminal history and “nine cycles” of incarceration. The trial court also stated
in the sentencing journal entry that it had considered all factors of law and
found that prison was consistent with the purposes of R.C. 2929.11. Thus,
there is nothing in the record to suggest that the trial court’s decision was
unreasonable, arbitrary, or unconscionable.
{¶ 14} Accordingly, the first and second assignments of error are
overruled.
{¶ 15} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE PATRICIA A. BLACKMON, J., and KENNETH A. ROCCO, J., CONCUR