State v. Hall

739 N.E.2d 846 | Ohio Ct. App. | 2000

OPINION Roger A. Hall entered a guilty plea to a single charge of non-support in violation of R.C. 2919.21. The trial court sentenced him to a term of seven months incarceration. The trial court also ordered restitution in the sum of $7,264.21.

Mr. Hall has now pursued a direct appeal of his sentence, assigning a single error for our consideration:

The trial court improperly sentenced Appellant to a term of imprisonment contrary to the sentencing criteria contained in R.C. 2929.13 and R.C. 2929.19.

Mr. Hall had prior convictions for receiving stolen property and passing bad checks. He also had a lengthy traffic record, including ten convictions for driving without an operator's license and/or driving while his operator's license was under suspension.

The criteria to be considered in sentencing an individual to a felony of the fifth degree, such as non-support, are set forth in R.C. 2929.13(B)(1). Counsel for Mr. Hall contends that none of the factors set forth in the statute as factors which make imprisonment appropriate are demonstrated in the record for Mr. Hall's case.

Given the extended period of time during which Mr. Hall failed to support his child and given the fact that he had been found in contempt for failure to pay his support earlier, a community control sanction might well have been perceived as demeaning the seriousness of the offense of non-support.

In non-support cases, the principle victim is a child who has little or no ability to help himself or herself. In many cases, the poverty which results can cause physical harm to the child. [See R.C. 2929.13(B)(1)(a).] A parent holds a position of trust with respect to the child. [See R.C. 2929.13(B)(1)(d).] Given the extent of Mr. Hall's traffic record, he has to have been subjected to a community control sanction/probation during at least part of the time he was failing to support his child. [See R.C. 2929.13(B)(1)(h).]

Under the circumstances, at least three criteria increasing the likelihood of imprisonment exist. The trial court was well within its discretion and well within the purposes of the sentencing criteria to assess the penalty it did.

The sole assignment of error is overruled. The judgment and sentence of the trial court is affirmed.

Judgment affirmed.

LAZARUS and PETREE, JJ., concur.