State v. Nutt

2024 Ohio 1204

• Court: Ohio Court of Appeals
• Decided: March 29, 2024
• Docket: 23 CAC 11 0103
• Status: Published

Opinion

[Cite as State v. Nutt, 2024-Ohio-1204.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : ELVIS NUTT, : Case No. 23 CAC 11 0103 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court, Case No. 23CRB00891

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 29, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ALICIA HARRIS WILLIAM CRAMER Assistant Prosecuting Attorney 470 Olde Worthington Rd, Ste. 200 City of Delaware Westerville, Ohio 43082 70 North Union St. Delaware, Ohio 43015 Delaware County, Case No. 23 CAC 11 0103 2

Baldwin, J.

{¶1} The appellant, Elvis Nutt, appeals his sentence imposed after he entered a

plea of guilty. The appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On August 15, 2023, the appellant was charged with one count of Assault

in violation of R.C. §2903.13(A), one count of Inducing Panic in violation of R.C.

§2917.31(A)(2), three counts of Aggravated Menacing in violation of R.C. §2903.21(A),

and Disorderly Conduct in violation of R.C. §2917.11(B)(2).

{¶3} On September 28, 2023, pursuant to a plea agreement, the appellant

pleaded guilty to one count of Assault in violation of R.C. §2903.13(A), one count of

Inducing Panic in violation of R.C. §2917.31(A)(2), and one count of Aggravated

Menacing in violation of R.C. §2903.21(A).

{¶4} On November 1, 2023, the trial court held a sentencing hearing. At the

hearing, two of the appellant’s victims addressed the court about the fear they still feel

from the appellant’s assault. The trial court sentenced the appellant to 180 days on each

count, with ninety days suspended, to run consecutively. The appellant received seventy-

nine days of jail credit. The term was to be followed by three years of community control

to include mental health and alcohol assessments, and an anger management class. The

appellant was to have no contact with the victims.

{¶5} The appellant timely filed a notice of appeal and raised the following

Assignment of Error: Delaware County, Case No. 23 CAC 11 0103 3

{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING 90

DAYS ON EACH COUNT TO RUN CONSECUTIVELY FOR A TOTAL OF 270 DAYS IN

JAIL.”

STANDARD OF REVIEW

{¶7} “Generally, misdemeanor sentencing is within the sound discretion of the

trial court and will not by disturbed upon review if the sentence is within the limits of the

applicable statute. State v. Schreiber, 5th Dist. Licking No. 2022 CA 000098, 2023-Ohio-

1864, ¶11, citing State v. Thadur, 5th Dist. Ashland No. 15 COA 018, 2016-Ohio-417, 59

N.E.3d 602, ¶11, internal citations omitted. 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, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). There is no requirement that a trial court, in sentencing on misdemeanor offenses,

specifically state its reasons on the record. State v. Harpster, 5th Dist. Ashland No.

04COA061, 2005-Ohio-1046, ¶20.

ANALYSIS

{¶8} R.C. §2929.22 governs sentencing on misdemeanors and states, in

relevant part, the following:

(B)(1) In determining the appropriate sentence for a misdemeanor, the court

shall consider all of the following factors:

(a) The nature and circumstances of the offense or offenses;

(b) Whether the circumstances regarding the offender and the offense or

offenses indicate that the offender has a history of persistent criminal Delaware County, Case No. 23 CAC 11 0103 4

activity and that the offender’s character and condition reveal a substantial

risk that the offender will commit another offense;

(c) Whether the circumstances regarding the offender and the offense and

offenses indicate that the offender’s history, character, and condition reveal

a substantial risk that the offender will be a danger to others and that the

offender’s conduct has been characterized by a pattern of repetitive,

compulsive, or aggressive behavior with heedless indifference to the

consequences;

(d) Whether the victim’s youth, age, disability, or other factor made the

victim particularly vulnerable to the offense or made the impact of the

offense more serious;

(e) Whether the offender is likely to commit future crimes in general, in

addition to the circumstances described in divisions (B)(1)(b) and (c) of this

section.

**

(2) In determining the appropriate sentence for a misdemeanor, in addition

to complying with division (B)(1) of this section, the court may consider any

other factors that are relevant to achieving the purposes and principles of

sentencing set forth in section 2929.21 of the Revised Code.

(C) Before imposing a jail term as a sentence for a misdemeanor, a court

shall consider the appropriateness of imposing a community control

sanction or a combination of community control sanctions under sections

2929.25, 2929.26, 2929.27, and 2929.28 of the Revised Code. A court may Delaware County, Case No. 23 CAC 11 0103 5

impose the longest jail term authorized under section 2929.24 of the

Revised Code only upon offenders who commit the worst forms of the

offense or upon offenders whose conduct and response to prior sanctions

for prior offenses demonstrate that the imposition of the longest jail term is

necessary to deter the offender from committing a future criminal offense.

{¶9} R.C. §2929.21 as referenced in R.C. §2929.22(B)(2) states the following in

pertinent part:

(A) A court that sentences an offender for a misdemeanor or minor

misdemeanor violation of any provision of the Revised Code, or of any

municipal ordinance that is substantially similar to a misdemeanor or minor

misdemeanor violation of a provision of the Revised Code, shall be guided

by the overriding purposes of misdemeanor sentencing. 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.

{¶10} There is nothing in the misdemeanor sentencing statute that requires the

court to set forth its analysis regarding the purposes and principles of sentencing. See

R.C. §2929.21; 2929.22. Rather, we presume the court considered the factors unless the

record affirmatively shows that the court failed to consider the purposes of sentencing or

the sentence is strikingly inconsistent with the relevant considerations. State v. James, Delaware County, Case No. 23 CAC 11 0103 6

7th Dist. Columbiana No. 07CO47, 2009-Ohio-4392, ¶50 (in a felony case), relying on

State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988). Thus, a silent record raises

the rebuttable presumption that the sentencing court considered the statutory sentencing

criteria. Id.

{¶11} The appellant contends that the record does not support the imposition of

270 days in jail. At the sentencing hearing, the trial court noted that the appellant has a

long criminal history dating back to arrests beginning in 1986 and convictions beginning

in 2008. The victims both spoke at the sentencing hearing of the fear they still fear from

the appellant’s assault. The appellant blames this incident and his criminal history on drug

and alcohol abuse, and that this was out of character. Upon review of the entire record,

we find that the trial court did not abuse its discretion in sentencing appellant to 270 days

in jail. The trial court’s decision was not arbitrary, unconscionable or unreasonable.

{¶12} The appellant’s sole assignment of error is overruled. Delaware County, Case No. 23 CAC 11 0103 7

CONCLUSION

{¶13} For the for foregoing reasons, the judgment of the Delaware Municipal

Court, Delaware County, Ohio, is hereby affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.