State v. FitzpatrickState v. Fitzpatrick
{¶ 1} This is an appeal from a Lawrence County Municipal Court judgment of conviction and sentence. Following a bench trial, Chad L. Fitzpatrick, defendant below and aрpellant herein, was found guilty of criminal damaging in violation of
{¶ 2} Appellant assigns the following error for review:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT AND ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO JAIL.”
{¶ 4} Two days later, a criminal complaint was filed charging him with criminal damaging. Appellant pled not guilty and the mаtter proceeded to a bench trial. At the conclusion of the trial, the court found appellant guilty and scheduled the matter for sentencing.
{¶ 5} Appellant did nоt appear for his first scheduled sentencing hearing, but did appear on September 15, 2006. He blamed his previous absence on a failure to get his mail. The trial court, however, opined that it did not “buy much of [his] explanation.” The court also stated that if it had considered a suspended sentence, “that consideration ha[d] now еvaporated.” Thereupon, the court sentenced appellant to serve thirty days in jail, make restitution and a $250 fine.
{¶ 6} Appellant appealed that judgment but we dismissed it for lack of a final order. We noted that the trial court‘s judgment of conviction and sentence did not fully comply with
{¶ 7} Appellant asserts in his assignment of error that the trial court committed reversible еrror by sentencing him to serve time in jail. We disagree.
{¶ 8} Appellant was convicted of a second degree misdemeanor. See
{¶ 9} Generally, trial courts enjoy broad discretion when imposing sentences in misdemeanor cases and we will not vacate a sentence unless the court abused its discretion. State v. Polick (1995), 101 Ohio App.3d 428, 430-31, 655 N.E.2d 820; State v. McWhorter (Mar. 5, 2002), Ross App. No. 01CA2619; State v. Steers (Feb. 20, 1997), Washington App. No. 96CA12. We note that an abuse of discretion is more than an error of law or judgment; rather, it implies that the court‘s attitude was unreasonable, arbitrary or unconscionable. State v. Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d 331, 335; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898. When reviewing for an abuse of discretion, appellate courts must not substitute their judgment for that of the trial court. State ex rel. Duncan v. Chippewа Twp. Trustees (1995), 73 Ohio St.3d 728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991). 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181. To establish an abuse of discretion, the result must be so grossly and palpably violative of fact or logic that it evidences nоt the exercise of will but perversity of will, not the exercise of judgment but the defiance of judgment, and not the exercise of reason but instead passion or bias.Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 787 N.E.2d 631, 2003-Ohio-2181,]}13; Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1. With these principles in mind, we turn our attention to the sentence imposed in the case sub judice.
{¶ 10} At the outset we note that the trial court imposed a thirty day jail sentence, which is one third (_) of the jail sentence that it could have imposed under law. Although the trial court did not expressly state its reasons for imposing that sentence, silence is not fatal if the record supports the decision and no abuse of discretion is apparent. See generally State v. Robenolt, Mahoning App. No. 04MA104, 2005-Ohio-6450, at]}21; Conneaut v. Peaspanen, Ashtabula App. No. 2004-A-0053, 2005-Ohio-4658, at T|28; Cleveland v. Uveges (May 16, 1991), Cuyahoga App. Nos. 58498-59501. Moreover, when a jail sentence falls within the statutory limit, as it does here, reviewing courts presume that the trial court followed the appropriate statutory guidelines. State v. Wagner (1992), 80 Ohio App.3d 88, 95-96, 608 N.E.2d 852; State v. Crable, Belmont App. No. 04BE17, 2004-Ohio-6812, at]}24.
{¶ 11} After our review of the facts and circumstances in the instant case, we note that the act appellant committed was not a random act of violence committed in the heat of the moment. Rather, the evidence indicated the appellant and Todd Gillum knew each one other from past encounters at the tavern and that Gillum “had problems with [appellant] before.” Moreover, their confrontation that night took place inside the tavern and thus gavе appellant time to plan how to take revenge against Gillum. Appellant also caused considerable damage to Gillum‘s truck and, although the court ordеred him to pay restitution, it is not clear whether appellant will be able do so.1 In light of the nature and circumstances surrounding this offense, see
{¶ 12} Appellant argues that the sole reason for his jail sentence is because he failеd to appear at his first sentencing hearing. He further asserts that this is not a permissible factor to consider under
{¶ 13} To begin, we disagree with the underlying premise of appellant‘s argument.
{¶ 14} For the reasons stated above and because we find no abuse of disсretion in the trial court‘s sentence, we hereby overrule appellant‘s assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that аppellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that а special mandate issue out of this Court directing the Lawrence County Municipal Court to carry this judgment into execution.
If a stay of execution of sentence аnd release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to аllow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein сontinued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to
A certified copy of this entry shall constitute that mandate pursuant to