State v. Seidowsky , 2015 Ohio 4311 ( 2015 )

[Cite as State v. Seidowsky, 2015-Ohio-4311.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 13CA0037-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JEFFREY SEIDOWSKY MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 13-CRB-00322
DECISION AND JOURNAL ENTRY
Dated: October 19, 2015
CARR, Presiding Judge.
{¶1} Appellant, Jeffrey Seidowsky, appeals the judgment of the Medina Municipal
Court. This Court affirms.
I.
{¶2} This matter arises out of a domestic dispute between Seidowsky and his
girlfriend, J.Y. Seidowsky and J.Y. resided together in Medina. On March 16, 2013, Seidowsky
assaulted the couple’s five-month-old puppy after it had an accident in the house. J.Y. attempted
to intervene and a heated argument ensued. The confrontation grew violent and Seidowsky
struck J.Y. in the face. Seidowsky then threated J.Y.’s life and warned her not to go to law
enforcement. J.Y. eventually left the scene and reported the incident to police. On March 18,
2013, Seidowsky was charged with two counts of domestic violence in the Medina Municipal
Court.
2
{¶3} After initially pleading not guilty to the charges at arraignment, Seidowsky
appeared before a magistrate for a change of plea hearing and entered a plea of no contest to one
count of domestic violence assault in violation of R.C. 2919.25(A). Pursuant to an agreement
with the State, one count of domestic violence menacing, in violation of R.C. 2919.25(C), was
dismissed. Seidowsky was found guilty of domestic violence assault, and a presentence
investigation report was ordered. Seidowsky subsequently appeared for a sentencing hearing
where the trial court imposed a 180-day jail sentence with credit for time served.
{¶4} Seidowsky filed a timely notice of appeal. Two attorneys filed Anders briefs on
behalf of Seidowsky and withdrew as counsel. We note that “Anders equates a frivolous appeal
with one that presents issues lacking in arguable merit. An issue does not lack arguable merit
merely because the prosecution can be expected to present a strong argument in reply or because
it is uncertain whether a defendant will prevail on the issue on appeal. An issue lacks arguable
merit if, on the facts and law involved, no responsible contention can be made that it offers a
basis for reversal.” (Internal quotations and citations omitted.) State v. Moore, 2d Dist. Greene
No. 07-CA-97, 2009-Ohio-1416, ¶ 4. Because our independent review of the record revealed the
existence of arguable issues that were not wholly frivolous, we appointed a third attorney to
represent Seidowsky on appeal. See State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-
Ohio-6788, ¶ 2. Appellate counsel filed a merit brief on January 5, 2015. Now before this
Court, Seidowsky raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
SENTENCING DEFENDANT-APPELLANT TO THE MAXIMUM JAIL
TERM OF ONE HUNDRED EIGHTY DAYS, WITHOUT CONSIDERATION
OF ALL OF THE SENTENCING FACTORS UNDER R.C. 2929.22.
3
{¶5} In his sole assignment of error, Seidowsky contends that the trial court failed to
consider the factors in R.C. 2929.22 prior to imposing a 180-day jail sentence. This Court
disagrees.
{¶6} This Court has held as follows:
“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. However, it is well recognized that a trial court abuses its
discretion when, in imposing a sentence for a misdemeanor, it fails to consider the
factors set forth in R.C. 2929.22.” (Internal citations omitted.) State v. Smith, 9th
Dist. No. Wayne 05CA0006, 2006-Ohio-1558, at ¶ 21. See also State v. Jones,
9th Dist. Wayne No. 02CA0018, 2003-Ohio-20.
State v. Endress, 9th Dist. Medina No. 08CA0011-M, 2008-Ohio-4498, ¶ 3. “A trial court is
presumed to have considered the factors set forth in R.C. 2929.22 ‘absent an affirmative showing
to the contrary.’” Endress at ¶ 4, quoting Smith at ¶ 21. “The burden of demonstrating this error
falls to the appellant.” Endress at ¶ 4, citing Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197,
199 (1980). Moreover, “[w]hen a presentence investigation report is ordered, ‘[w]e presume that
the court utilized the information in the report when issuing its sentence.” State v. Pope, 9th
Dist. Medina No. 13CA0031-M, 2014-Ohio-2864, ¶ 14, quoting State v. Coryell, 9th Dist.
Summit No. 24338, 2009-Ohio-1984, at ¶ 19.
{¶7} In his merit brief, Seidowsky contends that there is no indication in the record that
the trial court considered any of the sentencing factors under R.C. 2929.22 other than his prior
criminal record. Seidowsky further asserts that a six-month jail term was unwarranted because
he took responsibility for his actions and this case did not involve the worst form of domestic
violence.
{¶8} Seidowsky’s argument is without merit. Seidowsky has not identified anything in
the record suggesting the trial court disregarded the sentencing factors, and this Court’s review
4
of the record fails to yield “an affirmative showing” that the trial court failed to consider the
factors set forth in R.C. 2929.22. Endress at ¶ 4, quoting Smith at ¶ 21. Furthermore, it is
apparent from the sentencing transcript that the trial court reviewed the presentence investigation
report prior to sentencing, and the official version of the incident contained therein indicates that
Seidowsky engaged in a string of violent and extreme behavior. After repeatedly assaulting their
dog, Seidowsky struck J.Y. when she attempted to intervene. Seidowsky then kicked and pulled
J.Y.’s legs as she cried for help. After previously telling J.Y. that he would “beat [her] to death”
if she called police, Seidowsky broke into a bathroom where J.Y. was crying and again
threatened to “hunt [her] down” and kill her if he ended up going to jail. In light of the severity
of Seidowsky’s conduct, and absent any indication that the trial court failed to consider the
sentencing factors set forth in R.C. 2929.22, Seidowsky cannot prevail on his argument that the
trial court abused its discretion in sentencing him to a six-month jail term.
{¶9} The assignment of error is overruled.
III.
{¶10} Seidowsky’s assignment of error is overruled. The judgment of the Medina
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
5
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
GREGORY HUBER, J. MATTHEW LANEIR, JOHN G. QUILLIN, and MICHAEL L. JOHN,
Prosecuting Attorneys, for Appellee.