State v. Oehlstrom

2012 Ohio 4718

• Court: Ohio Court of Appeals
• Decided: October 11, 2012
• Docket: 97785
• Status: Published

Opinion

[Cite as State v. Oehlstrom, 2012-Ohio-4718.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97785

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RICHARD OEHLSTROM DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-550417

BEFORE: Cooney, P.J., Keough, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: October 11, 2012 ATTORNEY FOR APPELLANT

Timothy R. Sterkel 1414 South Green Road Suite 310 Cleveland, OH 44121

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Andrew Rogalski Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 COLLEEN CONWAY COONEY, P.J.:

{¶1} Defendant-appellant, Richard Oehlstrom (“Oehlstrom”), appeals his

sentence for attempted felonious assault and vandalism. Finding no merit to the appeal,

we affirm.

{¶2} In May 2011, Oehlstrom was charged with felonious assault on a peace

officer, assault on a peace officer, harassment by an inmate, vandalism, and carrying a

concealed weapon.

{¶3} In November 2011, Oehlstrom pled guilty to an amended charge of

attempted felonious assault with a forfeiture specification, harassment, and vandalism.

The remaining counts were nolled. In December 2011, he was sentenced to 18 months

in prison for attempted felonious assault and two 12-month terms for harassment and

vandalism. All three sentences were ordered to run concurrently.

{¶4} Oehlstrom now appeals, arguing in his sole assignment of error that the trial

court erred when it sentenced him to 18 months in prison without considering relevant

factors. He argues that his lack of prior felony convictions and his current physical

condition (medicated for a psychiatric condition and no longer addicted) should have

been considered as mitigating factors.

{¶5} We review felony sentences under the standard set forth in State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, we 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 is then reviewed under an abuse-of-discretion

standard.

{¶6} In the instant case, we do not find Oehlstrom’s sentence contrary to law.

His 18-month sentence is within the permissible statutory range for his conviction of

attempted felonious assault, a felony of the third degree with a 36-month maximum

sentence. His two 12-month sentences are also within the permissible statutory range

for harassment and vandalism, felonies of the fifth degree that carry 12-month maximum

prison sentences. Oehlstrom’s sentences were ordered to run concurrent to each other,

for an aggregate sentence of 18 months in prison, far below the maximum possible prison

sentence of 60 months in prison for these three charges.

{¶7} Having satisfied the first step, we next consider whether the trial court

abused its discretion. Kalish at ¶4, 19. “An abuse of discretion is ‘“more than an error

of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.”’” Id. at ¶ 19, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d

144 (1980).

{¶8} Oehlstrom argues that his sentence constitutes an abuse of discretion

because his lack of prior felony convictions should have been a mitigating factor.

However, after a thorough review of the record, we find that the trial court did not abuse

its discretion. Both Oehlstrom and his attorney were afforded the opportunity to speak in mitigation at the sentencing hearing. The trial court noted the seriousness of the

officer’s injuries and the extent of his rehabilitation and potential lifelong disability.

The court also noted Oehlstrom’s very recent disorderly conduct conviction. The court

referred to the presentence investigation report’s discussion of Oehlstrom’s drug and

alcohol use, and the apparent lack of remorse noted by the probation officer.

{¶9} Thus, we find nothing in the record to suggest that the trial court’s decision

was unreasonable, arbitrary, or unconscionable. Accordingly, Oehlstrom’s sole

assignment of error is overruled.

{¶10} Judgment affirmed.

It is ordered that appellee recover of 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. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

____________________________________________________ COLLEEN CONWAY COONEY, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and EILEEN A. GALLAGHER, J., CONCUR