State v. D'Amico

[Cite as State v. D'Amico, 2015-Ohio-278.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27258
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
THOMAS J. D'AMICO COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 13 04 0997
DECISION AND JOURNAL ENTRY
Dated: January 28, 2015
BELFANCE, Presiding Judge.
{¶1} Thomas D’Amico appeals his sentence imposed by the Summit County Court of
Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} On March 17, 2013, Mr. D’Amico ran up behind Richard Fugo, who was the
fiancée of Mr. D’Amico’s former wife, M.S., broke a beer bottle over Mr. Fugo’s head, and
attempted to stab him in the neck with it. As a result of this attack, Mr. D’Amico was indicted
on charges of felonious assault, menacing by stalking, aggravated menacing, and violating a
protection order. Mr. D’Amico pleaded guilty to felonious assault and violating a protection
order, and the remaining counts were dismissed. The trial court sentenced Mr. D’Amico to
seven years in prison.
{¶3} Mr. D’Amico has appealed, raising a single assignment of error for our review.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN CONSIDERING UNCHARGED CONDUCT
IN SENTENCING THE DEFENDANT.
{¶4} Mr. D’Amico argues that his sentence was contrary to law because the trial court
considered conduct of which he had never been charged or convicted. We disagree.
{¶5} This Court utilizes the test set forth in State v. Kalish, 120 Ohio St. 3d 23, 2008-
Ohio-4912, when reviewing criminal sentences. See State v. Roper, 9th Dist. Summit No.
27025, 2014-Ohio-4786, ¶ 30.
First, [we] must examine the sentencing court’s compliance with all applicable
rules and statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law. If this first prong is satisfied, the trial
court's decision in imposing the term of imprisonment is reviewed under the
abuse-of-discretion standard.
Kalish at ¶ 26.
{¶6} Mr. D’Amico argues that his sentence was contrary to law because the trial court
considered uncharged conduct in sentencing him; specifically, Mr. D’Amico points to statements
made by his former wife about when he allegedly assaulted her. However, “Ohio law is clear
that [u]nindicted acts * * * can be considered in sentencing without resulting in error when they
are not the sole basis for the sentence.” (Internal quotations and citations omitted.) (Alterations
sic.) State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 7. Sentencing
courts have long been permitted to “‘exercise a wide discretion in the sources and types of
evidence used to assist [it] in determining the kind and extent of punishment to be imposed
within limits fixed by law.’” State v. Bowser, 186 Ohio App. 3d 162, 2010-Ohio-951, ¶ 14 (2d
Dist.), quoting Williams v. New York, 337 U.S. 241, 246 (1949). “The evidence the court may
consider is not confined to the evidence that strictly relates to the conviction offense because the
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court is no longer concerned * * * with the narrow issue of guilt.” (Citation omitted.) Bowser at
¶ 14.
{¶7} “Likewise, R.C. 2929.19 grants broad discretion to the trial court to consider any
information relevant to the imposition of a sentence.” State v. Asefi, 9th Dist. Summit No.
26931, 2014-Ohio-2510, ¶ 8. R.C. 2929.19(A) allows the state and the defendant to “present
information relevant to the imposition of sentence in the case[,]” and R.C. 2929.19(B) requires
the trial court to “consider the record, any information presented at the hearing by any person
pursuant to division (A) of this section, and, if one was prepared, the presentence investigation
report * * * and any victim impact statement * * *.” (Emphasis added.). “In other words, R.C.
2929.19 sets out a procedure less formal than an evidentiary hearing for interested parties to
submit arguments and information to the trial court.” Asefi at ¶ 8.
{¶8} We initially note that the trial court considered a video of the incident and the
presentence investigation, neither of which are in the appellate record. See Asefi at ¶ 14 (When
the sentencing court considers a presentence investigation report, an appellate court must
presume regularity if the report is not included in the appellate record.); State v. Spurlock, 9th
Dist. Lorain No. 13CA010354, 2013-Ohio-5369, ¶ 8 (“[I]t is the duty of the appellant to ensure
that the record on appeal is complete.”) (Internal quotations and citations omitted.). The trial
court also heard statements from M.S., Mr. Fugo, Mr. Fugo’s mother, and Mr. D’Amico. Mr.
Fugo told the court that Mr. D’Amico attacked him from behind without provocation. According
to Mr. Fugo, the incident “changed [his] life. It is very hard for [him] to go out without being
concerned * * *.” He missed work at the business he owns and is now “very paranoid to be in
public sometimes.” M.S. told the court about numerous incidents of alleged abuse by Mr.
D’Amico before she obtained a protection order. When Mr. D’Amico spoke, he denied the
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incidents of abuse and offered information pertinent to the court’s consideration of the
sentencing factors including mitigation.
{¶9} Prior to sentencing Mr. D’Amico, the trial court specifically considered many of
the sentencing factors set forth in R.C. 2929.11 and 2929.12 at the hearing. During its
discussion, the trial court stated that “the victims of [Mr. D’Amico’s] offenses have suffered
serious physical and psychological harm as a result * * *.” Mr. D’Amico suggests that this
statement is indicative of the trial court considering his alleged assaults on his former wife.
However, read in context, it is more likely that the court was actually summarizing the harm
caused by Mr. D’Amico — i.e., the serious physical harm to Mr. Fugo and the serious
psychological harm to Mr. Fugo and M.S. — rather than saying that both suffered serious
physical harm. Regardless, even accepting Mr. D’Amico’s interpretation, we cannot conclude
that this single statement by the trial court indicates that it based its sentencing decision solely on
the alleged assault on his former wife, especially given Mr. Fugo’s statement to the court and the
court’s lengthy discussion about other factors on the record, including Mr. D’Amico’s previous
criminal history. Accord Clemons, 2014-Ohio-4248, at ¶ 7.
{¶10} Furthermore, it is clear from the record that the focus of the hearing was on the
attack upon Mr. Fugo, not the alleged abuse described by M.S. M.S.’s statements about the
abuse were relayed as she explained the history of her past relationship with Mr. D’Amico and
helped provide context concerning the attack on Mr. Fugo as well as the violation of the
protection order. In any case, given the incomplete record in this case, we must presume
regularity in the sentencing proceedings. See Asefi, 2014-Ohio-2510, at ¶ 14.
{¶11} Accordingly, Mr. D’Amico’s assignment of error is overruled.
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III.
{¶12} In light of the foregoing, the judgment of the Summit County Court of Common
Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
CARR, J.
MOORE, J.
CONCUR.
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APPEARANCES:
RUSSELL S. BENSING, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RACHEL M. RICHARDSON, Assistant
Prosecuting Attorney, for Appellee.