State v. Dahms

[Cite as State v. Dahms, 2019-Ohio-3124.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-18-037
Appellee Trial Court No. CRB 1801217A
v.
Nicholas B. Dahms DECISION AND JUDGMENT
Appellant Decided: August 2, 2019
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Blake W. Skilliter, Assistant Prosecuting Attorney, for appellee.
Howard C. Whitcomb, III, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from an October 26, 2018 judgment of the Ottawa County
Municipal Court, sentencing appellant to a 180-day jail term following appellant’s
conviction on one count of domestic violence, in violation of R.C. 2919.25, a
misdemeanor of the first degree. For the reasons set forth below, this court affirms the
judgment of the trial court.
{¶ 2} Appellant, Nicholas Dahms, sets forth the following assignment of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN
IMPOSING A MAXIMUM SENTENCE UPON DEFENDANT-
APPELLANT AS IT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 3} The following undisputed facts are relevant to this appeal. On September 30,
2018, officers from the Port Clinton Police Department were dispatched to an apartment
complex in connection to reports of a woman being assaulted, screaming for help, and
asking for someone to contact the police.
{¶ 4} Upon arrival at the scene, police discovered the victim, with whom appellant
has a son who was three-weeks old at the time of these events. The responding officers
observed multiple scratches and red marks upon her body indicative of having just been
physically assaulted. In the interim, appellant had jumped a fence and fled the scene
prior to the arrival of the police.
{¶ 5} In response to this incident, the officers conducted an investigation,
including multiple witness interviews. The investigating officers learned that in the
course of a verbal dispute, appellant physically restrained the victim, then repeatedly
struck and choked the victim. The victim had been holding their infant son when this
incident commenced. Fortunately, the child was not injured.
2.
{¶ 6} As a result of this incident, appellant was charged with one count of
domestic violence, in violation of R.C. 2919.25, a misdemeanor of the first degree. On
October 10, 2018, appellant pled no contest. A presentence investigation report was
ordered. On October 26, 2018, the case proceeded to sentencing.
{¶ 7} At sentencing, the trial court noted that appellant was on parole for a prior
felony arson conviction at the time of this incident. The trial court further noted that
appellant’s criminal history included arson, tampering with evidence, theft, and driving
under the influence. Appellant failed to participate in recommended services in
connection to past offenses. Appellant failed to pay the court ordered restitution arising
in the prior theft conviction. Appellant acknowledged that a parole violation was pending
against him due to the instant case.
{¶ 8} The trial court sentenced appellant to a period of 180 days in jail, with credit
for time served. The record reflects that appellant became aggressive and confrontational
towards the trial court upon the announcement of the sentence. The record reflects the
trial court attempted to diffuse appellant’s adversarial outburst.
{¶ 9} Upon announcement of the sentence, appellant retorted, “What? Six
months?” The trial court replied, “Easy. Take it easy.” The trial court proceeded to
advise, “You are going to want to hold it. Okay. I respect the fact that you don’t agree
with it, but you are going to want to hold it in.”
3.
{¶ 10} The trial court’s efforts to diffuse the matter did not curtail appellant’s
conduct. Appellant rebutted, “I don’t care. I don’t care, man * * * I mean, what the fuck,
man?” This appeal ensued.
{¶ 11} In the sole assignment of error, appellant contends that the subject
misdemeanor sentence was unlawful. We do not concur.
{¶ 12} It is well-established that appellate court review of a disputed misdemeanor
sentence is conducted pursuant to the abuse of discretion standard of review. State v.
Cook, 6th Dist. Lucas No. L-15-1178, 2016-Ohio-2975, ¶ 18. Demonstration of an abuse
of discretion requires showing the disputed trial court conduct to be unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d
1140 (1983).
{¶ 13} In conjunction with these governing principles, a misdemeanor sentence
that falls within the permissible statutory limits is presumed to be lawful absent evidence
to the contrary. State v. Townsend, 6th Dist. Lucas No. L-01-1441, 2002-Ohio-4077, ¶ 6.
{¶ 14} We will now apply the above-described legal framework to the instant case
in order to determine the propriety of the disputed sentence.
{¶ 15} R.C. 2929.24(A) establishes that the maximum allowable jail term for a
first-degree misdemeanor conviction is 180 days. We note that appellant acknowledges
that the term of jail imposed does fall within the permissible statutory limits.
{¶ 16} Appellant nevertheless suggests that the sentence should be construed to be
unlawful based upon appellant’s unsupported position that longer jail terms may only
4.
properly be imposed in cases such as this if, “the most serious physical injury,” is shown
to have occurred. We do not concur.
{¶ 17} The record reflects that appellant possesses a considerable criminal
background. The record reflects that at the time of this incident appellant remained on
parole for an aggravated arson conviction. The record further reflects that appellant
failed to pay court ordered restitution related to a prior theft conviction and failed to
participate in services in connection to the past offenses.
{¶ 18} In addition, the record further reflects that appellant was found to be high
risk pursuant to the Ohio Risk Assessment System (“ORAS”) for community supervision
consideration purposes. The record shows that appellant placed the safety of his infant
son in jeopardy by these events when appellant commenced a physical altercation with
the victim while she was holding their child. Lastly, the record reflects appellant’s
consistent failure to take accountability for his criminal actions and failure to maintain
control even when speaking directly to the trial court during the sentencing in this case.
{¶ 19} Given these facts and circumstances, we find that the record of evidence in
this case fails to demonstrate that the disputed trial court misdemeanor sentence was
unreasonable, arbitrary, or unconscionable. We find appellant’s assignment of error not
well-taken.
{¶ 20} Wherefore, the judgment of the Ottawa County Municipal Court is hereby
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
5.
State v. Dahms
C.A. No. OT-18-037
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
6.