State v. Schreiber

2023 Ohio 1864

• Court: Ohio Court of Appeals
• Decided: June 2, 2023
• Docket: 2022CA00098, 2022CA00099, 2022CA000100, & 2022CA00101
• Status: Published

Opinion

[Cite as State v. Schreiber, 2023-Ohio-1864.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Andrew J. King, J. : -vs- : Case No. 2022 CA 000098 : 2022 CA 000099 JOSEPH SCHREIBER : 2022 CA 000100 : 2022 CA 000101 Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case Nos. 22-CRB- 00861,2022CRB1027, 2022CRB1168, & 2022CRB1356

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 2, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MICHAEL S, COX TODD W. BARSTOW Assistant Law Director 261 West Johnstown Road 40 West Main Street, 4th Floor Columbus, OH 43230 Newark, OH 43055 Licking County, Case No. 2022CA000098, 2022CA000099,2022CA000100, 2022CA000101 2

Gwin, P.J.

{¶1} Defendant-appellant Joseph Schreiber [“Schreiber”] appeals his sentences

after a negotiated guilty plea in the Licking County Municipal Court.

Facts and Procedural History

{¶2} On June 6, 2022, in Licking County Municipal Court, Case Number 2022

CRB 00861, Schreiber was charged with one count of Theft, in violation of R.C. 2913.02,

a misdemeanor of the first degree for stealing items from the Dollar General store in

Newark. Schreiber was additionally charged with Obstructing Official Business, in

violation of R.C. 2921.31, a misdemeanor of the second degree1.

{¶3} On July 11, 2022 in Licking County Municipal Court, Case Number 2022

CRB 1027, Schreiber was charged with one count of Theft, in violation of R.C. 2913.02,

a misdemeanor of the first degree for stealing items from the Walmart in Heath. Schreiber

was additionally charged with Obstructing Official Business, in violation of R.C. 2921.31,

a misdemeanor of the second degree, and Resisting Arrest, in violation of R.C. 2921.33,

a misdemeanor of the second degree2.

{¶4} Schreiber failed to appear on July 21, 2022 for a jury trial in Case Number

2022 CRB 00861 and a bench warrant was issued for his arrest. [Docket Entry No. 32].

{¶5} On July 27, 2022, in Licking County Municipal Court, Case Number 2022

CRB 1168, Schreiber was charged with one count of Arson, a misdemeanor of the first

degree, in that he was accused of setting fire to collection bins at the Salvation Army

store in Newark3.

1 2022 CA 0098 2 2022 CA 0099 3 2022 CA 0100 Licking County, Case No. 2022CA000098, 2022CA000099,2022CA000100, 2022CA000101 3

{¶6} On August 29,2022, in Licking County Municipal Court, Case Number 2022

CRB 1356, Schreiber was charged with one count of Theft, in violation of R.C. 2913.02,

a misdemeanor of the first degree for stealing items from the Walmart in Newark4.

Schreiber was additionally charged with Obstructing Official Business, in violation of R.C.

2921.31, a misdemeanor of the second degree, Resisting Arrest, in violation of R.C.

2921.33, a misdemeanor of the second degree, and Failure to Disclose, in vio la t io n

o f R. C. 29 21 . 29 , a misdemeanor of the fourth degree.

{¶7} On October 12, 2022, Schreiber filed Criminal Rule 11(C) and (F) plea forms

in each case. The trial court conducted a plea hearing and accepted Schreiber’s guilty

pleas to each charge. T. Change of Plea, Oct. 12, 2022 at 5-7. The trial judge proceeded

to impose sentence as follows, in Case No. 2022 CRB 00861 on both the theft and the

obstructing official business charges, 30 days and a $150.00 fine and court costs. Id. at

12; In Case No. 2022 CRB 1027, theft, 30 days, fine and court costs. Id; In Case No.

2022 CRB 1356, on the theft charge, 30 days, on the resisting arrest, obstructing official

business and failure to disclose, a fine of $150.00. Id. In Case No. 2022 CRB 1168,

arson, 90 days. Id. All sentences were ordered to be served consecutively for an

aggregate sentence of 180 days. Id.

Assignment of Error

{¶8} Schreiber raises one Assignment of Error,

{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT.”

4 2022 CA 0101 Licking County, Case No. 2022CA000098, 2022CA000099,2022CA000100, 2022CA000101 4

Law and Analysis

{¶10} Schreiber argues that R.C. 2929.26 authorizes the trial court to impose a

residential sanction such as a halfway house or community based correctional facility,

which would have achieved the goals of protecting society from him and treating his

mental health and substance abuse issues. He contends the trial court abused its

discretion by imposing a 180 day jail sentence.

Standard of Appellate Review

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

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

applicable statute. State v. Thadur, 5th Dist. Ashland No. 15 COA 018, 2016-Ohio-417,

59 N.E.3d 602, ¶ 11, citing State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006-Ohio-

1558, ¶ 21, internal citation omitted. See also State v. Chadwick, 5th Dist. Knox No.

08CA15, 2009-Ohio-2472, ¶ 30; State v. Lewis, 5th Dist. Fairfield No. 2006-CA-00066,

2007 WL 270448 (Sept. 12, 2007), ¶19. To find an abuse of discretion, the reviewing

court must determine that the trial court’s decision was unreasonable, arbitrary, or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion can be found where

the reasons given by the court for its action are clearly untenable, legally incorrect, or

amount to a denial of justice, or where the judgment reaches an end or purpose not

justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827,

2014-Ohio-477, ¶35; In re Guardianship of S.H., 9th Dist. Medina No. 13CA0066–M,

2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–

Ohio–5823, ¶54. Licking County, Case No. 2022CA000098, 2022CA000099,2022CA000100, 2022CA000101 5

{¶12} Furthermore, 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.

Issue for Appellate Review: Whether the trial court’s decision to impose

a jail sentence is clearly untenable, legally incorrect, amounts to a denial of justice, or

reaches an end or purpose not justified by reason and the evidence

{¶13} R.C. 2929.22 lists factors that a sentencing court must consider when it

imposes a sentence,

(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 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 or 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; Licking County, Case No. 2022CA000098, 2022CA000099,2022CA000100, 2022CA000101 6

(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;

(f) Whether the offender has an emotional, mental, or physical

condition that is traceable to the offender’s service in the armed forces of

the United States and that was a contributing factor in the offender’s

commission of the offense or offenses;

(g) The offender’s military service record.

(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.

{¶14} R.C. 2929.21 sets forth the criteria to be considered in imposing a jail term

for a misdemeanor:

(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 Licking County, Case No. 2022CA000098, 2022CA000099,2022CA000100, 2022CA000101 7

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.

(B) A sentence imposed for a misdemeanor or minor misdemeanor

violation of a Revised Code provision or for a violation of a municipal

ordinance that is subject to division (A) of this section shall be reasonably

calculated to achieve the two overriding purposes of misdemeanor

sentencing set forth in division (A) of this section, commensurate with and

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

upon the victim, and consistent with sentences imposed for similar offenses

committed by similar offenders.

{¶15} R.C. 2929.41(B)(1) provides, in relevant part,

(B)(1) A jail term or sentence of imprisonment for a misdemeanor

shall be served consecutively to any other prison term, jail term, or sentence

of imprisonment when the trial court specifies that it is to be served

consecutively or when it is imposed for a misdemeanor violation of section

2907.322, 2921.34, or 2923.131 of the Revised Code.

When consecutive sentences are imposed for misdemeanor under

this division, the term to be served is the aggregate of the consecutive terms

imposed, except that the aggregate term to be served shall not exceed

eighteen months. Licking County, Case No. 2022CA000098, 2022CA000099,2022CA000100, 2022CA000101 8

{¶16} The 180 day jail term is within the statutory range for a misdemeanor of the

first degree. R.C. 2929.24(A)(1). Schreiber pled to and was convicted of four

misdemeanors of the first degree. The 180 day sentence does not exceed the permissible

sentence for multiple offenses as set forth in R.C. 2929.41(B)(1). Accordingly, an

aggregate sentence of 180 days in this case is not contrary to law. In his appellate brief,

Schreiber concedes the 180 day jail term is not contrary to law.

{¶17} Under R.C. 2929.21(A) and (B), to achieve the purposes of protecting the

public from future crime and punishing the offender, the sentencing court is to inter alia

consider the offender’s conduct, the impact of the offender’s conduct on the victims, and

the consistency of the sentence with sentences for similar offenses. State v. Frank, 5th

Dist. Muskingum No. CT 2017-0102, 2018-Ohio-5148, 127 N.E.3d 363, ¶ 55 citing

Thadur, 2016-Ohio-417, 59 N.E.3d 602, ¶ 15.

{¶18} At the sentencing hearing, the trial judge noted that Schreiber set fire to a

clothing bin at the Salvation Army. T. Change of Plea, Oct. 12, 2022 at 11. The judge

noted that the offense was particularly egregious because the items burned “could have

been used by people who are financially disadvantaged and by destroying those you took

away that resource for them….” Id. The record contains eleven pages of Schreiber’s

criminal offenses dating back to 1992, for among other offenses, assault, domestic

violence, OVI, driving under suspension, theft, and probation violations.

{¶19} Upon a review of the record in this case, we find no abuse of discretion by

the trial court in sentencing Schreiber to a term of 180 days in jail. The sentence is within

the statutory range for a misdemeanor of the first degree. The 180 day sentence does

not exceed the permissible sentence for multiple offenses as set forth in R.C. Licking County, Case No. 2022CA000098, 2022CA000099,2022CA000100, 2022CA000101 9

2929.41(B)(1). The sentencing hearing demonstrates the trial court considered the

purpose of protecting the public from future crime and punishing Schreiber, while

considering the impact of his crimes on the community.

{¶20} The trial court’s sentence is not legally incorrect or untenable. Further, the

sentence does not amount to a denial of justice, or reach an end or purpose not justified

by reason and the evidence.

{¶21} Schreiber’s sole Assignment of Error is overruled.

{¶22} The judgment of the Licking County Municipal Court is affirmed.

By Gwin, P.J.,

Wise, J., and

King, J., concur