State v. Schreiber , 2023 Ohio 1864 ( 2023 )

[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