State v. Gill , 2010 Ohio 5525 ( 2010 )

[Cite as State v. Gill, 2010-Ohio-5525.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 09 MA 71
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
HEIDI A. GILL )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the County Court
No. 4 of Mahoning County, Ohio
Case No. 2008 CRB 673
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. James E. MacDonald
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Martin E. Yavorcik
3227 Belmont Avenue
Youngstown, Ohio 44505
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: November 12, 2010
[Cite as State v. Gill, 2010-Ohio-5525.]
WAITE, J.
{¶1} Appellant Heidi Gill is challenging the misdemeanor sentence imposed
on her after she was convicted of one count of assault. The Mahoning County Court
No. 4 sentenced her to 180 days in jail, with 145 days suspended, and a $1,000 fine,
with $750 suspended. There were a variety of other conditions of sentencing as well,
such as continuous alcohol monitoring, restitution to the victim, abstinence from all
alcoholic beverages, no contact with the victim and two years of probation. The trial
court also ordered an ignition lock be put on her car and required Appellant to attend
meetings with a psychologist and with Alcoholics Anonymous. Appellant argues that
her sentence is not proportional to sentences given to similar defendants. Because
Appellant relies on evidence not in the record, the argument has no merit. Appellant
also argues that the trial court did not consider the sentencing factors found in R.C.
2929.21-22, but the record indicates otherwise. Both assignments of error are, thus,
without merit and the judgment of the trial court is affirmed.
Background of the Case
{¶2} On July 2, 2008, Appellant was arrested after randomly approaching
and assaulting Brittnee Bullen in the Denny’s Restaurant in Austintown. Appellant
was intoxicated at the time. Appellant slapped and punched the victim, and tore out
a clump of hair from her head. Appellant was 40 years old at the time and the victim
was 18. Appellant was charged with assault under R.C. 2903.13(A), a first degree
misdemeanor, and with disorderly conduct.
{¶3} On December 18, 2008, Appellant, who was represented by counsel,
entered a plea of no contest to the assault charge. The disorderly conduct charge
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was dismissed. The state agreed to stand silent at sentencing with respect to the
penalty to be imposed. Sentencing was held on April 6, 2009. Appellant and the
victim gave statements at sentencing, along with Appellant’s psychologist, Dr.
Darnall. A pre-sentence investigation report had also been prepared for the hearing.
{¶4} The victim stated that she continues to be afraid to appear in public
after the assault, and that she has ongoing back pain from the incident.
{¶5} Appellant’s attorney stated that Appellant was tasered during an arrest
in Warren, Ohio, and that she now suffers grand mal seizures resulting from that
incident. She is being treated by an array of doctors and receives some treatment at
the Cleveland Clinic. He alleged that she blacks out repeatedly and her behavior has
changed since the tasering incident. She blacked out in a hospital in 2008 and broke
both of her arms from the fall. Although she has no memory of the assault on Ms.
Bullen, Appellant accepted full responsibility for the crime. Her attorney stated that
she had no prior history of violent crime. He said that Appellant is under a great deal
of stress because she is working full-time, is raising a five-year-old child, and is
dealing with a federal civil lawsuit in Cleveland relating to the tasering incident.
{¶6} Dr. Darnall testified that he began seeing Appellant after she was
tasered in 2007. She was diagnosed with post-traumatic stress disorder, excess
anxiety, and avoidance behavior. She was supposed to have visited Dr. Darnall
seven or eight times between the plea hearing and the sentencing hearing, but she
only kept three appointments. According to Dr. Darnall, Appellant consumes
excessive amounts of alcohol as a means to deal with her anxiety. She assured Dr.
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Darnall that she was attending AA meetings, even though he was not getting any
written confirmation from AA. Dr. Darnall also testified that Appellant was taking
medications, including Celexa, Xanax and anti-seizure medicine, that should not be
combined with alcohol.
{¶7} Appellant testified that she did not know the victim before the assault.
She acknowledged that she is not handling her post-traumatic stress properly. She
admitted to the court that she had been out drinking with a friend at a bar just a week
before the sentencing hearing. She stated that she drinks at home to calm down.
She said that “[e]very once in a while when I go out, I just, I drink too much.” (4/6/09
Tr., p. 23.) She could not give the court an answer when the judge asked how often
she goes to AA meetings. Appellant acknowledged that she was taking a seizure
medication that may not be combined with alcohol. Appellant admitted that she had
been out drinking twice in the weeks just prior to her sentencing hearing. (4/6/09 Tr.,
p. 23.)
{¶8} The record indicates that Appellant has a variety of traffic convictions,
including one for operating a vehicle while intoxicated, and was arrested but not
convicted on five charges in Warren Municipal Court, including charges for assault on
a police officer and resisting arrest.
{¶9} Appellant’s attorney requested probation and restitution. Per the
agreement, the prosecutor made no sentencing recommendation.
{¶10} The court issued its judgment on April 9, 2009. The court imposed 180
days of jail time, with 145 days suspended and credit for 5 days served, leaving a
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remaining jail term of 30 days. The court permitted her to serve the time on
weekends. The court imposed a fine of $1,000, with $750 suspended. The court
ordered restitution to the victim and that Appellant was to have no contact with the
victim. The court imposed 24 months of reporting probation, ordered Appellant to be
placed on continuous random home monitoring at her own cost and decreed that any
use of alcohol would constitute an immediate violation of probation and would result
in the probable imposition of all suspended jail time. The court ordered Appellant not
to operate any motor vehicle without an ignition interlock, to be installed at her own
cost. Appellant was also ordered to attend a minimum of two AA meetings per week
and provide proof of attendance to the probation department and to continue
treatment with her psychologist and psychiatrist and provide proof to the court.
Finally, the court ordered Appellant to be compliant with all of her prescribed
medications.
{¶11} This appeal was filed on April 20, 2009. Appellant requested a stay of
execution from this Court on April 21, 2009. On April 23, 2009, we ruled that the jail
sentence and fine would be stayed, but that all remaining orders and conditions of
the sentence would remain in force. Appellant has advanced two assignments of
error in this appeal.
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ASSIGNMENTS OF ERROR
{¶12} “THE TRIAL COURT ERRED WHEN IT IMPOSED A SENTENCE
THAT WAS NOT CONSISTENT WITH SENTENCES FOR SIMILAR DEFENDANTS,
AS PER R.C. 2929.21(B).”
{¶13} “THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE
PROPER FACTORS AND OVERRIDING PURPOSES OF MISDEMEANOR
SENTENCING WHEN IT DETERMINED THE APPELLANT’S SENTENCE.”
{¶14} Appellant contends that her sentence is disproportionately severe
compared to sentences in similar cases, and that the trial court failed to consider all
the relevant sentencing factors in R.C. 2929.21-22. In general, the sentencing court
should be guided by the overriding purposes of misdemeanor sentencing found in
R.C. 2929.21(A), which are to protect the public from future crime by the offender and
others, and to punish the offender. In order to achieve those purposes, the
sentencing court is to consider the impact of the offense upon the victim, the need for
changing the offender's behavior, the need for rehabilitating the offender, and the
need for making restitution to the victim of the offense and to the public. As we
observed in State v. Crable, 7th Dist. No. 04 BE 17, 2004-Ohio-6812:
{¶15} “According to R.C. 2929.22, the trial court must consider the criteria
listed in that statute before sentencing someone convicted of a misdemeanor.
However, the trial court is not required to recite on the record its reasons for imposing
the sentence. Failure to consider the sentencing criteria is an abuse of discretion;
but when the sentence is within the statutory limit, a reviewing court will presume that
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the trial judge followed the standards in R.C. 2929.22, absent a showing otherwise.
Failing to explain the statutory reasons behind a certain sentence is only fatal if there
are mitigating factors without any aggravating factors given at the sentencing
hearing.” (Citations omitted.) Id. at ¶24.
{¶16} The sentencing court has discretion to determine the most effective way
to achieve the purposes and principles of sentencing set forth in section 2929.21 of
the Revised Code. R.C. 2929.22(A). An appellate court reviews a trial court's
sentence on a misdemeanor violation under an abuse of discretion standard. R.C.
2929.22; State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506, 815 N.E.2d 1155,
¶15. An abuse of discretion means more than a mere error of law or judgment; it
implies that the trial court's decision was unreasonable, arbitrary, or unconscionable.
State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144.
{¶17} Although a sentencing court formerly was required to make specific
factual findings prior to imposing a maximum sentence, that requirement was
eliminated after the Ohio Supreme Court’s ruling in State v. Foster, 109 Ohio St.3d 1,
845 N.E.2d 470. Although Foster involved felony sentencing, we have specifically
invalidated as unconstitutional the requirement in R.C. 2929.22(C) that the trial judge
make factual findings as a prerequisite to imposing a maximum misdemeanor
sentence. State v. Brooks, 7th Dist. No. 05MA31, 2006-Ohio-4610, ¶27-28, 34-38.
{¶18} Appellant’s first assignment of error is based on R.C. 2929.21(B), which
states:
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{¶19} “(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.” (Emphasis added.)
{¶20} In an attempt to show that her sentence was not consistent with those
in similar cases, Appellant cites us to the trial record in 23 other criminal cases.
None of the information about those other cases is contained in the record of the
instant appeal because it was not first presented to the trial court. “ ‘[A]lthough a
defendant cannot be expected to produce his or her own database to demonstrate
the alleged inconsistency, the issue must * * * be raised in the trial court and some
evidence, however minimal, must be presented to the trial court to provide a starting
point for analysis and to preserve the issue for appeal.’ ” State v. Bell, 2d Dist. No.
2004-CA-5, 2005-Ohio-655, ¶140, quoting State v. Roberts, 8th Dist. No. 84070,
2005-Ohio-28, ¶60.
{¶21} Appellant also argues that the trial court failed to consider all the
relevant sentencing factors and abused its discretion in imposing 35 days of actual
jail time. Appellant acknowledges that the court has discretion in sentencing, and
that there is a presumption that the court considered the proper sentencing factors
even if the record is silent on the matter. Appellant argues that the court failed to
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properly consider whether such a harsh sentence was needed to protect the public
from future crime. Appellant argues that she does not have an extensive criminal
history and that all charges from the Warren tasering incident were dismissed.
Appellant believes the trial court should not have considered the charges from
Warren Municipal Court as a factor in her sentencing. Appellant contends that there
was no proof that she was likely to commit future crimes. Appellant submits that she
provided ample evidence of her remorse, and that this mitigating evidence should
have eliminated the need for her to spend any more time in jail.
{¶22} R.C. 2929.22(B) lists the factors that the court must consider when
imposing a misdemeanor sentence. R.C. 2929.22(B) states:
{¶23} “(B)(1) In determining the appropriate sentence for a misdemeanor, the
court shall consider all of the following factors:
{¶24} “(a) The nature and circumstances of the offense or offenses;
{¶25} “(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;
{¶26} “(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;
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{¶27} “(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;
{¶28} “(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.
{¶29} ‘’(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.
{¶30} “(C) Before imposing a jail term as a sentence for a misdemeanor, a
court shall consider the appropriateness of imposing a community control sanction or
a combination of community control sanctions under sections 2929.25, 2929.26,
2929.27, and 2929.28 of the Revised Code. * * *
{¶31} “(D)(1) A sentencing court shall consider any relevant oral or written
statement made by the victim, the defendant, the defense attorney, or the
prosecuting authority regarding sentencing for a misdemeanor. This division does not
create any rights to notice other than those rights authorized by Chapter 2930. of the
Revised Code. * * *”
{¶32} The trial court did not explain which sentencing factors were considered
or relied upon during sentencing. This lack of explanation does not create reversible
error unless there were “mitigating factors without any aggravating factors given at
the sentencing hearing.” Crable, supra, at ¶24. There are obviously many
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aggravating factors apparent from the record, not the least of which is Appellant’s
failure to address her drinking problem, a problem which she acknowledged was a
major factor in the assault.
{¶33} Appellant argues that it was error for the court to consider the criminal
charges that were dismissed from Warren Municipal Court. Although there is no
indication that the trial court imposed a more severe punishment based on the
dismissed charges from Warren Municipal Court, there would have been no error had
this clearly been a factor in the sentence. A trial court may consider facts relating to
other criminal charges even if those charges have been dismissed. State v. Wiles
(1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97. Appellant’s entire prior criminal record,
including a prior DUI, are strong indications that the trial court did not abuse its
discretion in formulating the sentence in this case, including the imposition of 35 days
of actual jail time
{¶34} The record is clear that the prevention of future crime was a major
concern in the court’s sentence, and justifiably so. Appellant committed a random act
of violence she attributes to her consumption of alcohol. Appellant admitted that she
had a drinking problem, that she should not be drinking due to medications she was
taking, and that she continued drinking even after she entered her no contest plea in
this matter. The sentence was crafted, in part, to monitor and control Appellant’s
drinking problem. Thus, the record supports the conclusion that the trial court was
aware of the danger Appellant posed to the public when she drank, and that the
sentence was specifically designed to help protect the public from future harm by
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correcting or containing her drinking problem. Although the judge did not expressly
state which sentencing factors were considered, the sentence itself demonstrates
that the court considered the appropriate factors.
{¶35} Appellant has not shown that any error or abuse of discretion took place
at sentencing, and her assignments of error are overruled. The judgment of
conviction and sentence are affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.