2020 Ohio 3764
Ohio Ct. App.2020Background
- Clermont County Domestic Relations Court issued a Domestic Violence Civil Protection Order (DVCPO) against Keith Fisher on Aug. 15, 2018, prohibiting any contact with the protected parties through July 20, 2023.
- The DVCPO followed multiple domestic incidents, including July 16, 2018, when Fisher called/texted L.H. ~300 times; Fisher later pled guilty to telecommunications harassment for that conduct and served 180 days.
- Between Feb. and Aug. 2019 the state filed multiple separate charges against Fisher (violation of protection order, telecommunications harassment, menacing by stalking); many were dismissed because witnesses were uncooperative.
- On Aug. 28, 2019 Fisher was charged with nine counts of violating the DVCPO for calls in Aug. 2019; the case proceeded to a bench trial using jail-phone records showing six calls.
- The trial court found Fisher guilty on six counts, imposed 180 days jail on each, ordered three terms consecutive for a total of 540 days, and Fisher appealed on sentencing and jail-credit grounds.
Issues
| Issue | Fisher's Argument | State/Trial Court's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by sentencing Fisher to 540 days. | Sentence excessive, disproportionate to harm; motivated by judicial animus; calls were consensual; Fisher already served 185 days. | Sentence within statutory misdemeanor range; court considered R.C. 2929.21/.22 factors and Fisher's lengthy violent history; prior jail time was for separate charges. | No abuse of discretion; sentence affirmed. |
| Whether trial court erred in not applying 185 days jail-time credit to the 540-day sentence. | Entitled to credit for 185 days already served pretrial. | Credit applies only to confinement "arising out of the offense" convicted; prior incarcerations were for separate, unrelated charges; credit period begins Aug. 28, 2019, so only ~20 days available. | No error; Fisher not entitled to 185 days credit. (Court noted Fisher was given 29 days credit below and state did not appeal that.) |
Key Cases Cited
- State v. Fugate, 117 Ohio St.3d 261 (2008) (pretrial jail confinement must be credited against sentence under Equal Protection and R.C. 2949.08)
- State v. Dean, 127 Ohio St.3d 140 (2010) (judicial critical or harsh remarks do not alone establish bias making fair judgment impossible)