State v. Nelson , 2016 Ohio 2692 ( 2016 )

[Cite as State v. Nelson, 2016-Ohio-2692.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-T-0074
- vs - :
KEITH ERICK NELSON, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR
0009.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Keith E. Nelson, timely appeals his sentence after pleading
guilty to attempted felonious assault. He argues that the trial court erroneously imposed
the maximum prison term. For the following reasons, we affirm.
{¶2} Nelson and his live-in girlfriend returned to his home from a bar in
December 2014. Nelson had been jealous that night and started beating her without
notice, punching her in the head multiple times. Officers responded and found the
victim covered in blood and suffering from a concussion. She had several cuts on her
head and her face was swollen and red. Officers also found a large clump of her hair in
the garage, a pool of blood in the driveway, blood near a wood pile, and a broken lamp
in the garage.
{¶3} The victim was in a daze and unable to fully tell officers what had
happened to her. She kept repeating herself. She was transported to the hospital via
ambulance where she was diagnosed as suffering a subdural hematoma and
subarachnoid hemorrhage resulting from the facial trauma.
{¶4} Nelson was indicted and charged with felonious assault, a second-degree
felony, and domestic violence, a first-degree misdemeanor in violation of R.C.
2903.11(A)(1)(2) and 2919.25(A). He later pleaded guilty to a reduced charge of
attempted felonious assault, and the domestic violence charge was dismissed. He was
sentenced to 36 months in prison with three years mandatory post-release control and
ordered to pay restitution.
{¶5} Nelson’s sole assigned error asserts:
{¶6} “The trial court erred by imposing the maximum sentence upon the
appellant.”
{¶7} R.C. 2953.08(G)(2) dictates our standard of review, State v. Long, 11th
Dist. Lake No. 2013-L-102, 2014-Ohio-4416, ¶71, which states:
{¶8} “The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶9} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
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the matter to the sentencing court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
{¶10} “(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶11} “(b) That the sentence is otherwise contrary to law.” (Emphasis added.)
{¶12} The prosecution stated at the plea hearing that the evidence at trial would
have proven: “the defendant and the victim became engaged in an oral argument.
During that time, the defendant became more agitated. At one point he began punching
the victim in the face and he placed her in a chokehold which caused her to lose
consciousness and seek medical attention.”
{¶13} At sentencing the state asked for the imposition of prison time and
emphasized that Nelson violated the court’s no-contact order before sentencing by
having another inmate write to the victim. This letter included personal drawings from
Nelson to the victim.
{¶14} The victim spoke at sentencing, stating:
{¶15} “The severity of my injuries that I incurred as a result of the brutal beating
has affected my life physically, financially, and emotionally. * * * While I am improving
on a daily basis, I’ve been seeing a neurosurgeon once a month, and I have undergone
a series of CAT scans. Luckily each * * * shows improvement, and I am very optimistic
that the next one * * * will hopefully be the last and allow me to return to work on a full-
time basis.
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{¶16} “* * * I’m also undergoing psychological counseling and am suffering from
post-traumatic stress disorder. I’m afraid that this assault will haunt me for the rest of
my life.
{¶17} “* * *
{¶18} “In my opinion, Mr. Nelson shows no signs of remorse for what he did to
me. He has taunted me in the courtroom in the past. * * *
{¶19} “Your honor, I do ask that you impose a maximum sentence on Mr.
Nelson, not only for my safety but also for the safety of all women. I wish that I had
been aware of his history of domestic violence and that I could have avoided this
tragedy that has affected my life in such a negative way.”
{¶20} Nelson denied having a history of domestic violence. He admitted being
charged with assault on a male, but denied ever hitting a woman. When asked by the
court to describe what he did to the victim, Nelson said:
{¶21} “It was poor decisions by both parties. * * *
{¶22} “I defended myself, and with adrenalin and, fear, I, you know, reached out
and defused the situation. And that’s all I did.”
{¶23} Nelson also denied having anything to do with the letter sent to the victim
during his time in the county jail.
{¶24} Upon ordering Nelson to serve the maximum, 36-month prison term, the
trial court stated that it had “considered the overriding principles and purposes of felony
sentencing, further has considered all seriousness and recidivism factors. The Court
finds the sentence to be proportional to the defendant’s conduct as well as consistent
with similarly situated offenders.”
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{¶25} It then found that “the defendant has a history of similar offenses, he has
minimized his involvement in the instant case, and the victim had suffered severe
physical harm.” It also found in its sentencing entry, “(1) the Defendant has a history of
convictions for similar offenses; (2) that the Defendant contacted the victim in violation
of bond; and (3) that the victim suffered serious physical harm.”
{¶26} Although Nelson correctly points out that there was no evidence that he
had been previously convicted of domestic violence, he had two prior charges for
domestic violence and a prior conviction for assault. The presentence investigation
report confirms that Nelson pleaded guilty to disorderly conduct on one occasion and
the other domestic violence charge was dismissed. Nelson was convicted of assault
following a jury trial in 2001. Accordingly, we cannot conclude that the trial court erred
in stating that Nelson had a history of similar offenses.
{¶27} Furthermore, its imposition of the maximum sentence is supported by the
severe nature of his victim’s injuries as well as Nelson’s failure to accept responsibility,
his lack of remorse, and his violation of the no-contact order pending sentencing. Thus,
the trial court’s imposition of the maximum allowable prison term was supported by the
record and is not clearly and convincingly contrary to law. Nelson’s sole assigned error
lacks merit, and the trial court’s decision is affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.
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