State v. Elmore

[Cite as State v. Elmore, 2018-Ohio-1003.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-17-033
Appellee Trial Court No. 2016CR0134
v.
Nicholas C. Elmore DECISION AND JUDGMENT
Appellant Decided: March 16, 2018
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from an April 25, 2017 judgment of the Wood County
Court of Common Pleas, sentencing appellant to a 10-month term of incarceration on
appellant’s conviction of one count of violation of a protection order, in violation of R.C.
2919.27(A)(2), a felony of the fifth degree. Appellant was convicted following a jury
trial. For the reasons set forth below, this court affirms the judgment of the trial court.
{¶ 2} Appellant, Nicholas Elmore, sets forth the following sole assignment of
error:
Appellant’s sentence should be vacated due to the trial court’s failure to comply
with the specific directives of R.C. 2929.11 and 2929.12.
{¶ 3} The following undisputed facts are relevant to this appeal. In 2011,
appellant moved into a residence located in Rossford, Ohio. Subsequently, appellant
became engaged in a pattern of adversarial conflicts involving the next-door neighbors.
{¶ 4} Ultimately, appellant’s aggression escalated and he threatened to kill the
husband of the couple residing next-door, as well as threatening to kill the couple’s dog.
In response, the neighbors obtained a protection order against appellant pursuant to which
he was to have no contact with them.
{¶ 5} Appellant disregarded the protection order and continued to taunt and
threaten the neighbors in violation of the protection order. On March 9, 2016, appellant
encountered the wife of the couple and one of her friends. Appellant aggressively yelled
epithets in violation of the order.
{¶ 6} On May 5, 2016, appellant was indicted on one count of violation of a
protection order, in violation of R.C. 2919.27(A)(2), a felony of the fifth degree. A
warrant was later issued for appellant’s arrest due to failure to appear. On March 15,
2017, a jury trial commenced in the case. Appellant was found guilty and a presentence
investigation report was ordered.
2.
{¶ 7} On April 25, 2017, appellant was sentenced to a less than maximum term of
incarceration of 10 months and was given credit for time served. This appeal ensued.
{¶ 8} In the sole assignment of error, appellant maintains that although he received
a lawful, less than maximum sentence, and despite possessing a lengthy criminal history
and the admittedly “disconcerting” facts of the instant case, the sentence was nevertheless
improper. We do not concur.
{¶ 9} Felony sentence review in Ohio is governed by R.C. 2953.08(G)(2).
Pursuant to R.C. 2953.08(G)(2), an appellate court may increase, decrease, modify, or
vacate a disputed felony sentence if it clearly and convincingly finds that applicable
statutory findings made by the court were not supported by the record or the sentence is
otherwise contrary to law. State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-
Ohio-425, ¶ 11.
{¶ 10} The record in the instant case reflects that appellant possesses an extremely
lengthy criminal history encompassing approximately 75 criminal charges against
appellant over the years prior to the instant case. In addition, the record reflects an
ongoing pattern of appellant of failing to comply with court orders, with recommended
services, and of regular recidivism.
{¶ 11} The record reflects that the trial court gave careful consideration to multiple
factors in the course of crafting the disputed sentence. The trial court concluded in
pertinent part, “Defendant was under community control sanction when he committed
this offense. Further, the victim of the offense suffered and suffers from serious
3.
psychological harm * * * [T]he Court reviewed the offenders prior criminal history and
the offender has not responded favorably to sanctions * * * shows no genuine remorse *
* * takes no responsibility.” The trial court further went on to emphasize the compelling
need to protect the public and appellant’s refusal to engage in recommended services and
treatment.
{¶ 12} In support of this appeal, appellant asserts that the fact that the case is
replete with aggravating factors, adverse to appellant, and is devoid of significant
mitigating factors, in favor of appellant, somehow caused the trial court to “improperly
outweigh” the aggravating factors over the mitigating factors. We find this unsupported
position counter-intuitive and we do not concur.
{¶ 13} The record reflects that the disputed trial court sentence was less than
maximum and well within the permissible statutory range. The record reflects that
appellant possesses a lengthy criminal history reflecting an ongoing pattern of recidivism
and failure to comply with court orders and recommended services. The record also
reflects that there are no applicable R.C. 2929.13, R.C. 2929.14 or R.C. 2929.20 statutory
findings made by the trial court but not supported by the record.
{¶ 14} Notably, the record shows that appellant’s position is rooted in the
mistaken notion that the sentence is compromised because appellant was not given either
community control or a minimum term of incarceration. There is no statutory or case law
support of this position. We further note that appellant was already on community
control at the time of these events.
4.
{¶ 15} Based upon the foregoing, we find that the record reflects no impropriety of
any kind in the disputed sentence. Appellant’s sole assignment of error is found not well-
taken. The judgment of the Wood County Court of Common Pleas is hereby affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
5.