State v. Nichter
2014 Ohio 4226
| Ohio Ct. App. | 2014Background
- Defendant Nichter was indicted in December 2010 on multiple offenses including identity fraud, forgery, theft, receiving stolen property, and engaging in a pattern of corrupt activity; he pled guilty to three counts of second-degree identity fraud.
- The trial court sentenced Nichter in January 2012 to four-year terms on the three identity-fraud counts, to be served concurrently, with other charges nolled.
- The sentencing entry stated restitution “in an amount to be determined.”
- Nichter filed a motion for judicial release on August 7, 2012, which the state opposed; the court denied but indicated it would reconsider after one year.
- Nichter filed a second motion for judicial release on May 24, 2013; a hearing was held November 22, 2013, and the court granted judicial release on January 13, 2014 placing Nichter on community control for three years.
- The State appealed, arguing the trial court failed to provide required findings and factors under R.C. 2929.20(J) and to consider relevant factors under R.C. 2929.12.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly approved judicial release under R.C. 2929.20(J). | State contends the court failed to make the required J(f) findings and identify R.C. 2929.12 factors. | Nichter argues the court properly exercised discretion in granting release. | Yes; court failed to comply with J requirements, remanded for compliance. |
| Whether the court adequately listed and weighed the factors presented at the hearing. | State argues factors listed were incomplete and non-specific. | Nichter contends the court considered relevant factors. | Not satisfied; remand to recount and weigh factors. |
| Whether the court erred by not considering Nichter's pattern of criminal activity in this case. | State asserts the pattern of conduct should weigh against release. | Nichter's pattern not properly weighed. | Remand to re-evaluate in light of pattern evidence. |
| Whether the record supports granting judicial release. | State asks for denial if statutory criteria not met. | Court found conditions warranted release. | Remand; without proper findings, judgment reversed. |
Key Cases Cited
- State v. Dudley, 2014-Ohio-430 (Ohio 5th Dist.) (final appealable order doctrine referenced for restitution ambiguity)
- State v. Kuhn, 2006-Ohio-1145 (Ohio 3d Dist.) (finality of restitution order under appellate review)
- In re Zakov, 107 Ohio App.3d 716 (11th Dist.) (restatement on finality and appealability)
- In re Holmes, 70 Ohio App.2d 75 (1st Dist.) (early restitution-finality considerations)
- State v. Kelley, 10th Dist. No. 08AP-118 (2008-Ohio-3828) (requires explicit J findings tied to 2929.12 factors)
- State v. Orms, 2014-Ohio-2732 (10th Dist.) (holds juried release appeal rights and J findings must be explicit)
- State v. Williams, 2010-Ohio-4519 (10th Dist.) (requires weighing of 2929.12 factors in J findings)
- State v. Cunningham, 113 Ohio St.3d 108 (2007-Ohio-1245) (establishes scope of R.C. 2953.08(B) appeal by state)