State v. Nienberg, 2017 Ohio 2920

Defendant Steven J. Nienberg was indicted for felonious assault arising from a February 19, 2016 bar fight (Case No. 16CR27). While that case was pending he allegedly committed another bar assault on August 6, 2016 (Case No. 16CR59).
Nienberg pled guilty pursuant to a plea agreement: amended attempted felonious assault in 16CR27 (third-degree) and Count Two (felonious assault, second-degree) in 16CR59; one count in 16CR59 was dismissed.
Trial court imposed 36 months in 16CR27 and six years in 16CR59, to be served consecutively for a total of nine years.
Nienberg appealed, arguing his sentences are contrary to law and unsupported by the record, and that consecutive sentences were improper because he poses no threat to the public or victims.
The trial court relied on the PSI, victim-impact statements, the fact the second offense occurred while he was awaiting trial on the first, his criminal history and harm to victims in imposing within‑range and consecutive sentences.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of the individual sentences	State: sentences are within statutory ranges and were imposed after consideration of statutory factors	Nienberg: sentences are excessive, not commensurate with conduct and inconsistent with sentencing purposes	Affirmed — sentences fall within statutory ranges and record shows the court considered R.C. 2929.11/2929.12 factors
Legality of consecutive sentences	State: consecutive terms justified because second offense was committed while awaiting trial, offender has criminal history, and consecutive terms are necessary to protect public/punish	Nienberg: record does not support findings that he poses a threat; consecutive sentences disproportionate	Affirmed — court made and incorporated required R.C. 2929.14(C)(4) findings; record supports those findings and not rebutted by clear and convincing evidence

Marcum v. State, 146 Ohio St.3d 516 (Ohio 2016) (standard for appellate review of felony sentences and clear-and-convincing threshold)
Bonnell v. Ohio, 140 Ohio St.3d 209 (Ohio 2014) (trial court must make and incorporate consecutive-sentence findings but need not state supporting reasons verbatim)
Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition of clear and convincing evidence)
Arnett v. State, 88 Ohio St.3d 208 (Ohio 2000) (broad sentencing discretion and deference to trial court on weight of statutory factors)
Payne v. Ohio, 114 Ohio St.3d 502 (Ohio 2007) (trial court’s recital that it considered statutory factors can satisfy statutory requirement)