State v. Noggy

[Cite as State v. Noggy, 2018-Ohio-2350.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-L-156
- vs - :
JAMES R. NOGGY, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000056.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, James R. Noggy, appeals from the Judgment Entry
of Sentence of the Lake County Court of Common Pleas, ordering him to serve a term
of three years in prison for Attempted Felonious Assault. The issue to be determined in
this case is whether such a sentence is contrary to law when the court determined that
multiple R.C. 2929.12(B) factors applied, indicating the defendant’s conduct in
committing the offense was more serious than conduct typically constituting the offense.
For the following reasons, we affirm the judgment of the lower court.
{¶2} On June 16, 2017, Noggy was indicted by the Lake County Grand Jury for
Felonious Assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1).
{¶3} At a September 7, 2017 plea hearing, Noggy entered a plea of guilty to the
lesser included offense of Attempted Felonious Assault, a felony of the third degree, in
violation of R.C. 2923.02(A) and 2903.11(A)(1). Pursuant to the State, it would have
proven at trial that Noggy assaulted his former girlfriend, Kelly Hillier, by punching and
striking her. Hillier suffered a subdural hematoma (bleeding between the skull and
brain), concussion, and a break in her jaw. Noggy admitted to pushing Hillier and
causing her to fall over the couch, but denied punching her. The guilty plea was
accepted by the trial court and memorialized in a September 8, 2017 Judgment Entry.
{¶4} A sentencing hearing was held on October 19, 2017. Noggy’s counsel
argued that the case resulted from “a very toxic relationship,” explained that Noggy
“takes responsibility for his actions here,” and that he is moving forward in a “positive
direction.” He described that Noggy has been sober and is employed and would pay
restitution. Noggy stated that he was “very sorry for what [he] did,” explaining that he
hurt Hillier when he pushed her, although he “didn’t mean to do it.”
{¶5} The State recommended a sentence of four years of community control
and noted the need for restitution given the extensive amount of medical treatment
required. Several family members, including Hillier’s ex-husband, two children, and her
father, noted a history of violence by Noggy against Hillier during their relationship.
They also opined that this had a negative impact on Hillier, causing her to suffer fear
and anxiety. Kelly Hillier stated that she has had nightmares since the assault and that
it had been “the worst 10 months of [her] life.” She believed she would die when Noggy
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assaulted her.
{¶6} The court stated that it had reviewed the presentence investigation report
(PSI) and considered the purposes and principles of sentencing. It found that the victim
suffered serious physical, psychological, and economic harm, her “mental condition”
was exacerbated by the assault, the defendant’s relationship with her facilitated the
offense, and he “appeared to be motivated by prejudice against her gender.” It found
no genuine remorse was expressed. The court ordered Noggy to serve a term of three
years in prison and pay restitution. The sentence was memorialized in an October 23,
2017 Judgment Entry of Sentence.
{¶7} Noggy timely appeals and raises the following assignment of error:
{¶8} “The trial court erred by sentencing the defendant-appellant to a
maximum, thirty-six-month prison term.”
{¶9} The standard of review for felony sentences is provided by R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 9-23. “The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification given by the
sentencing court.” R.C. 2953.08(G)(2). “Applying the plain language of R.C.
2953.08(G)(2), * * * an appellate court may vacate or modify a felony sentence on
appeal only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is otherwise
contrary to law.” Marcum at ¶ 1.
{¶10} Noggy argues that the trial court erred in sentencing him to a prison term
of three years since its R.C. 2929.12 findings were unsupported by the evidence and
were contrary to law.
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{¶11} R.C. 2929.12 does not require judicial fact-finding. State v. Foster, 109
Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42; State v. Sprott, 11th Dist.
Ashtabula No. 2016-A-0066, 2017-Ohio-1508, ¶ 11. Rather, “in sentencing a defendant
for a felony, ‘a court is merely required to “consider” the purposes and principles of
sentencing in R.C. 2929.11 and the statutory * * * factors set forth in R.C. 2929.12.’”
State v. Brown, 11th Dist. Lake No. 2014-L-075, 2015-Ohio-2897, ¶ 34, quoting State v.
Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-3013, ¶ 44. “The trial court satisfies
its obligation to consider the seriousness and recidivism factors in R.C. 2929.12 by
stating that it considered them.” Brown at ¶ 34. “[T]he trial court is not obligated * * * to
give any particular weight or consideration to any [R.C. 2929.12] sentencing factor.”
(Citation omitted.) State v. Pishner, 11th Dist. Portage No. 2017-P-0004, 2017-Ohio-
8689, ¶ 20.
{¶12} Under R.C. 2929.12(B) and (C), the trial court must consider factors
relating to whether “the offender’s conduct is more serious than conduct normally
constituting the offense,” or “less serious than conduct normally constituting the
offense.” The court must also consider factors relating to whether the offender is “likely
to commit future crimes.” R.C. 2929.12(D) and (E).
{¶13} At the sentencing hearing and in its sentencing entry, the trial court stated
it had considered the seriousness and recidivism factors in R.C. 2929.12. It noted the
existence of multiple factors making the offense more serious, including that Noggy and
the victim had previously been in a relationship and the serious physical and
psychological harm caused, which was extensively discussed by several individuals at
sentencing. R.C. 2929.12(B)(2) and (6). The court found no factors making the harm
less serious. The court also considered Noggy’s prior OVI offenses as well as an
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assault conviction which related to threatening and/or assaulting a girlfriend, and found
no factors making recidivism less likely.
{¶14} Noggy argues that the trial court erred in finding that none of the “less
serious” factors applied. Specifically, he contends that the victim induced or facilitated
the offense, he acted under strong provocation, he did not cause or expect to cause
physical harm, and that there are substantial grounds to mitigate his conduct. R.C.
2929.12(C)(1)-(4). The application of these factors, however, all depend upon the trial
court accepting Noggy’s description of the crime, including his assertion that Hillier
attacked him, he only pushed her, and she fell over the couch. However, this is
contrary to the version of events outlined by the State, Hillier and others at the plea and
sentencing hearings describing that Noggy punched her and repeatedly beat her.
Photographs showed serious injuries, described as a subdermal hematoma,
concussion, and broken jaw, which it was reasonable to conclude did not result from
being pushed and falling over a couch. It is evident that the court declined to accept
Noggy’s version of the events, leading to its determination that these factors did not
apply.
{¶15} Noggy also argues that the court inaccurately found that he denied having
a drug and alcohol problem although he requested treatment. The trial court’s finding
appears to be based on the fact that Noggy was dishonest during a psychological
assessment and had claimed he had been sober for a year and a half, a fact Noggy
admitted was untrue at the sentencing hearing. Thus, the court’s finding as to this issue
was supported by the record.
{¶16} Finally, Noggy contends that the court erred in finding he lacked remorse,
given that he apologized, accepted responsibility, expressed a willingness to pay
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restitution, and took steps to move forward in a “positive direction.” It is evident that the
court did not find this expression of remorse to be genuine, especially given that, at the
plea hearing and sentencing hearing, Noggy downplayed his conduct, stating only that
he pushed Hillier, causing her to fall over a couch. As noted above, given the
contrasting facts presented by the State, the court was within its discretion to find a lack
of remorse. “[A] reviewing court must defer to the trial court as to whether a defendant’s
remarks are indicative of a genuine remorse because it is in the best position to make
that determination.” (Citation omitted.) State v. Davis, 11th Dist. Lake No. 2010-L-148,
2011-Ohio-5435, ¶ 15. Noggy presently having a job and a girlfriend does not negate
the factors the court found weighed against him.
{¶17} Based on a review of the record and as described above, the trial court
considered the necessary factors under R.C. 2929.12 and we cannot find by clear and
convincing evidence that the record does not support the trial court’s findings or that the
sentence is otherwise contrary to law.
{¶18} The sole assignment of error is without merit.
{¶19} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas, sentencing Noggy to a term of three years in prison, is affirmed. Costs
to be taxed against appellant.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.
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