State of Ohio, Plaintiff-Appellant, v. Daniel J. Nichter, Defendant-Appellee.
No. 15AP-886
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 11, 2016
[Cite as State v. Nichter, 2016-Ohio-7268.]
SADLER, J.
(C.P.C. No. 10CR-7383), (REGULAR CALENDAR)
DECISION
Rendered on October 11, 2016
On brief: Taft Stettinius & Hollister LLP, David H. Thomas, and Kathryn S. Wallrabenstein, for appellee.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{1} Plaintiff-appellant, State of Ohio, appeals from a decision of the Franklin County Court of Common Pleas granting the request of defendant-appellee, Daniel J. Nichter, for judicial release. For the reasons set forth below, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{2} On December 20, 2010, appellant filed an indictment charging appellee with 1 count of engaging in a pattern of corrupt activity under
{3} Pursuant to a plea agreement, appellee pled guilty to three counts of identity fraud, each a second-degree felony under
{4} On January 13, 2012, the trial court accepted appellee‘s plea on three counts of identity theft and dismissed the remaining counts. Appellee was sentenced to four years of imprisonment on each count, all to be served concurrently, and ordered him to write letters of apology to the victims.
{5} After serving seven months, appellee filed a motion for judicial release on August 12, 2012. The trial court overruled the motion but indicated that it would reconsider the request after appellee had served one year of his sentence.
{6} Appellee filed another motion for judicial release on May 24, 2013. The trial court held a hearing on November 22, 2013 to consider the motion. Appellant urged the trial court to deny the motion based on the seriousness of the crime. The trial court granted the motion and granted appellee judicial release, and appellant appealed.
{7} We reversed, holding that the trial court had failed to make the “very specific set of findings” required by
{8} The trial court held a second hearing on November 14, 2014, at which time it read the statutory language into the record and granted appellee‘s request. Appellant appealed the decision of the trial court citing the seriousness of the offense.
{9} Once again, we reversed. State v. Nichter, 10th Dist. No. 15AP-40, 2015-Ohio-3489 (“Nichter II“). We noted that the trial court “read verbatim” the language of the statute and “acknowledged the required statutory findings” but “failed to actually make the findings required” by the statute. Id. at para 8-9.
{10} The trial court held a third hearing on September 10, 2015. Appellant again asserted that granting judicial release would demean the seriousness of the offenses. One of appellee‘s victims, Dirk Reece, described the damage to his professional reputation caused by appellee‘s offenses and informed the court that appellee had delayed in writing a letter of apology that the court had required.
{11} After reviewing the procedural history of the case, the trial court went through each of the statutory factors under
{12} After emphasizing the purposes of the felony sentencing statute, the trial court concluded with the following observations:
This court continues to be sensitive to the life-changing challenges that Mr. Reece and the other victims in this case have faced and will continue to face, and does not take lightly the pain, shame, and embarrassment that each has suffered.
However, this court also believes that [appellee] has learned an invaluable lesson from the almost two years of incarceration
that he has served, and it should be clear to him based on this court‘s intolerance for those who fail to abide by its orders, that this court would have no issue or qualm with returning [appellee] to the institution should he fail to abide by the laws of the state and the conditions of his community control. This court now believes that [appellee] should be permitted to begin the phase of this process that is contemplated by statutory requirements in setting out the purposes and principles of felony sentencing, making restitution to his victims and to the community that trusted him to serve it consistent with the standards associated with his profession.
[Appellee‘s counsel], is there anything else that you would like to place on the record?
[APPELLEE‘S COUNSEL]: Your Honor, out of an abundance of caution, may I make an inquiry of the court, so we have a full record here. The court may have said this, but is the court finding pursuant to
2929.20(J)(1)(B) , that judicial release in this case did not demean the seriousness of [appellee‘s] conduct, and I assume the court adopts its reasoning and its analysis of2929.12 factors in making such a finding?
THE COURT: Correct. Pursuant to
Revised Code Sections 2929.20(J)(1)(B) , the court will find that a sanction other than a prison term would not demean the seriousness of the offense.
(Tr. at 25-26.)
{13} Appellant appealed to this court from the judgment of the trial court.
II. ASSIGNMENT OF ERROR
{14} Appellant assigns the following as error:
THE TRIAL COURT ERRED IN GRANTING JUDICIAL RELEASE IN THE ABSENCE OF RECORD SUPPORT FOR THE NECESSARY FINDING RELATED TO SERIOUSNESS.
III. STANDARD OF REVIEW
{15} As a matter of right, appellant may appeal a trial court‘s decision modifying a previously imposed sentence for a felony of the first or second degree by a grant of judicial release.
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under * * * division (I) of section
2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{16} Appellant‘s assignment of error alleges only that the trial court‘s findings regarding the factors listed in
{17} In State v. Marcum, ___ Ohio St.3d ___, 2016-Ohio-1002, para 22, the Supreme Court of Ohio recently construed
{18} “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Id., quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
IV. ANALYSIS
{19} When considering a defendant‘s request for judicial release,
(1) A court shall not grant a judicial release under this section to an eligible offender who is imprisoned for a felony of the first or second degree, * * * unless the court, with reference to factors under section
2929.12 of the Revised Code , finds both of the following:
(a) That a sanction other than a prison term would adequately punish the offender and protect the public from future criminal violations by the eligible offender because the applicable factors indicating a lesser likelihood of recidivism outweigh the applicable factors indicating a greater likelihood of recidivism;
(b) That a sanction other than a prison term would not demean the seriousness of the offense because factors indicating that the eligible offender‘s conduct in committing the offense was less serious than conduct normally constituting the offense outweigh factors indicating that the eligible offender‘s conduct was more serious than conduct normally constituting the offense.
(2) A court that grants a judicial release to an eligible offender under division (J)(1) of this section shall specify on the record both findings required in that division and also shall list all the factors described in that division that were presented at the hearing.
{20} As set out above, in Nichter I, we ordered the trial court to make the “very specific set of findings” required by
{21}
The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s conduct is more serious than conduct normally constituting the offense:
(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.
(4) The offender‘s occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.
(5) The offender‘s professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others.
(6) The offender‘s relationship with the victim facilitated the offense.
(7) The offender committed the offense for hire or as a part of an organized criminal activity.
(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
(9) If the offense is a violation of section
2919.25 or a violation of section2903.11 ,2903.12 , or2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children.
(Emphasis added.)
{22} The trial court found that the first, seventh, eighth, and ninth factors
Without question, that factor is present. I have been honored to hear from Mr. Reece on several occasions indicating the hardship that he has endured because of [appellee‘s] choices. The court will find that there has been both psychological and economic harm that the victim has suffered.
(Tr. at 18-19.)2
{23} The trial court found the third factor,
[Appellee] was a licensed real estate appraiser and mortgage broker in this state and had been permitted by state executive agencies to perform work within certain professional standards. He did hold a position of trust in the community.
(Tr. at 19.)
{24} The trial court found the fourth factor to be relevant as well. This factor,
Based on the facts of this case, it is clear to the court that [appellee] had access to these electronic signatures that allowed him to prepare these fraudulent appraisals, and as a licensed broker and appraiser, the court would find that he would have an obligation to prevent that kind of an offense.
(Tr. at 19.)
{25} The fifth factor,
While the court will not find that [appellee‘s] conduct is likely to influence the future conduct of others, the court will find that his occupation is what allowed him to have access to those electronic signatures.
(Tr. at 20.)
{26} The trial court found the sixth factor,
In the presentence investigation report there is a statement that [appellee] was working with them. The court is unclear whether that statement means that he worked directly with Mr. Reece and Ms. Goldsbury, or whether they worked in the same profession. But, again, we do know that [appellee] had access to those electronic signatures.
(Tr. at 20.)
{27} After this analysis, the trial court turned to consideration of the “less serious” factors under
The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s conduct is less serious than conduct normally constituting the offense: (1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong provocation.
(3) In committing the offense, the offender did not cause or expect to cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender‘s conduct, although the grounds are not enough to constitute a defense.
(Emphasis added.)
{28} The trial court found that the first factor was not present. However, the trial court found that the second, third, and fourth factors were present. Regarding the second factor,
From the defendant‘s perspective, that is present. He stated again in his presentence report that he was in dire financial straits, and while the court would never find that this was a right choice to make, from [appellee‘s] perspective, he believed that he was acting under strong provocation based on his dire financial straits.
(Tr. at 22.)
{29} With regard to the third factor, which applies if “the offender did not cause or expect to cause physical harm to any person or property,” the trial court found that it was also present.
Again, after balancing the factors, the court finds and concludes that the defendant‘s conduct is less serious than conduct normally constituting the offense.
(Tr. at 22.)
{30} In order for the trial court to find that a sanction other than a prison term would not demean the seriousness of the offense, the trial court was required to weigh the factors indicating that appellee‘s conduct in committing identity fraud was less serious than conduct normally constituting identity fraud against the factors indicating that the his conduct was more serious than conduct normally constituting that offense.
A. Strong Provocation
{31} The trial court relied on a statement attributed to appellee in the presentencing report as the factual basis for its finding that appellee committed identity fraud under “strong provocation.” The statement reads, in relevant part, as follows:
I was in dire straights [sic] financially and could not afford my monthly bills. I used someone else‘s electronic signature on appraisals. I did it to make money.
(Presentence Investigation Report at 4.)
{32}
{33} Under
[S]hall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, and all of the following factors:
* * *
(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation.
{34} The statutory law authorizes a trial court to consider provocation as a mitigating factor in cases where the conduct of the victim has incited or aroused the offender to commit an offense of violence. Black‘s Law Dictionary defines “provocation” as “[t]he act of inciting another to do something, esp. to commit a crime.” Black‘s Law Dictionary 1421 (10th Ed.2009).
{35} There is no claim by appellee that any of his victims caused or contributed to his dire financial straits and inability to afford his monthly bills. Rather, the evidence in the record clearly and convincingly supports a finding that appellee‘s financial difficulties were caused by his own chronic overspending. The presentencing investigation contains the following information under the heading “Finances“:
In 06/11, the offender declared bankruptcy and approximately $200,000.00 was dismissed in Franklin County. He reports two prior bankruptcies, one in 1990 in the amount of $100,000.00 and the other approximately 8 years ago in the amount of $300,000.00. Currently,
he states he is struggling financially and worries about finances regularly.
(Presentence Investigation Report at 9.)
{36} In the absence of any evidence suggesting another cause of appellee‘s financial problems, the only reasonable conclusion to draw from this record is that appellee caused his own dire financial straits by engaging in chronic overspending. See State v. Bodkins, 2d Dist No. 10-CA-38, 2011-Ohio-1274 (at sentencing, a defendant is entitled to introduce evidence contradicting negative information in the presentencing investigation). Even if it were permissible on this record to infer that appellee‘s dire financial straits and inability to afford his monthly bills arose from circumstances outside of his control, appellee pointed to no information in the record which would show that he was provoked by the victims in this case or by any other third party. Nor has appellee cited a single Ohio authority holding that a finding of “strong provocation” may arise from the conduct of the offender, and this court has not found any such authority.
{37} Additionally, in determining whether provocation is reasonably sufficient, Ohio courts “first apply an objective standard by determining whether a reasonable trier of fact ‘would decide that an actor was reasonably provoked by the victim.’ ” McKinzie, quoting State v. Shane, 63 Ohio St.3d 630, 634 (1992). Then, “[i]t is only when the objective standard is met that the Deem test of the ‘emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time’ must be considered.” Id., quoting Shane at 634.
{38} Here, the trial court found as follows:
From the defendant‘s perspective, [provocation] is present. He stated again in his presentence report that he was in dire financial straits, and while the court would never find that this was a right choice to make, from [appellee‘s] perspective, he believed that he was acting under strong provocation based on his dire financial straits.
(Emphasis added.) (Tr. at 22.)
{39} The trial court‘s finding that appellee acted under “strong provocation” is based solely on his subjective belief that his financial difficulties compelled him to commit the offenses. Consequently, even if it were permissible for the trial court to consider appellee‘s self-induced financial difficulties as “strong provocation,” appellee‘s subjective belief that he acted with provocation does not establish the existence of legally sufficient provocation.
{40} Finally, appellee has not cited any Ohio authority holding that an offender‘s dire financial straits and inability to afford monthly bills qualifies as provocation to commit any offense, let alone “strong provocation.” At most, appellee‘s statement at the presentencing investigation establishes that he was motivated to commit identity fraud by his own selfish need to obtain funds to cover his monthly expenses. The existence of a motive to commit the offense is not one of the mitigating factors listed under
{41} Based on the foregoing, we find that the record clearly and convincingly fails to support the trial court‘s determination that in committing identity theft appellee acted with “strong provocation.” Thus, the trial court erred when it considered provocation as one of the factors indicating that appellee‘s conduct was less serious than conduct normally constituting identity fraud.
B. Absence of Physical Harm
{42} The trial court also found that the mitigating factor listed in
C. Other Substantial Grounds
{43} The trial court employed the catch-all provision of
{44} Nor do we consider it appropriate for this court to assume that the trial court treated appellee‘s financial problems as a mitigating factor under the catch-all provision in
{45} The Supreme Court recently observed that ”
{46} We note that appellant has expressed concern with comments made by the trial court indicating that it has no intention of reversing its ruling on appellee‘s motion for judicial release regardless of this court‘s review. The law of the case doctrine compels the trial court to follow the mandates of this court, regardless of any previous statement to the contrary. See Nolan v. Nolan, 11 Ohio St.3d 1, 5 (1984); Hawley v. Ritley, 35 Ohio St.3d 157, 160 (1988). Moreover, a court of appeals lacks jurisdiction to rule on a motion to recuse a trial court judge or to pass on the disqualification of a trial court judge. See
{47} For the foregoing reasons, we sustain appellant‘s sole assignment of error.
V. CONCLUSION
{48} Having sustained appellant‘s sole assignment of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand the cause for further proceedings consistent with this decision.
Judgment reversed; cause remanded.
LUPER SCHUSTER, J., concurs.
HORTON, J., dissents.
HORTON, J., dissenting.
{49} Although the majority cites
{50} The standard of review that this court must apply to appeals of felony sentences and sentence modifications arising from judicial release is set forth under
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division(B)(2)(e) or(C)(4) of section 2929.14 , or division (I) of section2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
“Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Marcum at para 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus (construing
{51} The Eighth District Court of Appeals explained the deference required by the
It is important to understand that the “clear and convincing” standard applied in
R.C. 2953.08(G)(2) is not discretionary. In fact,R.C. 2953.08(G)(2) makes it clear that “[t]he appellate court‘s standard for review is not whether the sentencing court abused its discretion.” As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge.It is also important to understand that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court‘s findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.
State v. Venes, 8th Dist. No. 98682, 2013-Ohio-1891, para 20-21 (remanding for resentencing after trial court‘s failure to “make separate and distinct findings” required by
{52} First, a word about
{53} The Supreme Court of Ohio addressed the scope of the state‘s right to appeal a sentence modification based on judicial release in State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245. In Cunningham, a defendant was sentenced to community control after pleading guilty to a felony of the fifth degree, theft under
{54} The state appealed, asserting that the second motion was untimely and, therefore, a judicial release determination that it was entitled to appeal as “contrary to law” under
[M]ay appeal as a matter of right a sentence imposed upon a defendant who is convicted of or pleads guilty to a felony or, in the circumstances described in division (B)(3) of this section the modification of a sentence imposed upon such a defendant, on any of the following grounds:
* * *
(2) The sentence is contrary to law.
(3) The sentence is a modification under section
2929.20 of the Revised Code of a sentence that was imposed for a felony of the first or second degree.
Id. at para 7-10, quoting
{55} In its analysis, Cunningham first observed that:
[T]he plain language of
R.C. 2953.08(B)(3) does not include any reference to a felony of the third, fourth, or fifth degree. By including only felonies of the first and second degree within the text of (B)(3), the General Assembly has excluded all other felony offenses of a lesser degree because “the express inclusion of one thing implies the exclusion of the other.”
Id. at para 20, quoting Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, para 24.
{56} Cunningham also rejected the state‘s argument that it could appeal a sentence modification under the “contrary to law” prong of
Finally, we recognize that the state, relying on
R.C. 2953.08(B)(2) , contends that it has a right to appeal a sentence modification that is contrary to law. Here, it urges that the court acted contrary to law in permitting Cunningham to reinstate a motion that had been withdrawn and that would have been untimely if it were refiled. A careful examination ofR.C. 2953.08(B)(2) , however, reveals that it does not refer to the modification of a sentence; rather, it authorizes the prosecuting attorney to appeal, as a matter of right, a sentence imposed on a defendant on the grounds that “[t]he sentence is contrary to law.” Thus, it does not apply to a modification of a sentence that is allegedly contrary to law.
(Emphasis sic.) Id. at para 22.
{57} For two reasons, the majority‘s decision is inconsistent with the holding and analysis in Cunningham. First, the majority‘s predominant rationale for reversal is that the trial court applied a legally incorrect definition of “strong provocation” under
{58} Second, the Supreme Court‘s act of statutory interpretation in Cunningham applies with equal force to the language defining the standard of review under
{59} Recognizing that the standard of review of sentence modifications based on judicial release determinations is confined to
{60} For the foregoing reasons, I believe that the majority is precluded from applying a standard of review that allows reversal of the trial court on the grounds that the judicial release determination resulting in a sentence modification was “otherwise contrary to law.”
entire analysis flows from the principle that the definition applied by the trial court was contrary to law.
{61} Even if this were grounds for reversing the trial court, the definition of “strong provocation” that the majority faults the trial court for not applying is unpersuasive. Conceding that ”
{62} Furthermore, the majority selectively quotes the dictionary entry on “provocation” from Black‘s Law Dictionary. It only quotes the first definition: “1. The act of inciting another to do something, esp. to commit a crime.” Black‘s Law Dictionary 1421 (10th Ed.2009). The majority omits the second definition: “2. Something (such as words or actions) that affects a person‘s reason and self-control, esp. causing the person to commit a crime impulsively.” Id. The second definition is substantially broader and, although it includes “words or actions,” is not limited to them. Rather, it recognizes that “something” may provoke the offender. The trial court‘s findings comport with this definition.
{63} Further demonstrating that the majority is actually reviewing the trial court‘s decision under the “contrary to law” standard, it admonishes Nichter for not citing “a single Ohio authority holding that a finding of ‘strong provocation’ may arise from the conduct of the offender, and this court has not found any such authority.” (Majority Decision at para 36.) Even if it were proper to apply this standard—which, for the reasons discussed, it is not under Cunningham—Nichter does not bear the burden on this appeal to show that the definition applied by the trial court was correct. The burden to show error belongs to the state. See, e.g., State v. Costlow, 8th Dist. No. 89501, 2008-Ohio-1097, para 15 (“The standard of review set forth in
{64} Instead, the majority has cobbled together such a definition from two statutes that contain express references to “provocation occasioned by the victim” not found in
{65} Even accepting, for the sake of argument, the majority‘s definition of “strong provocation,” its view of the record is untenable in light of the standard of review. The majority asserts that “the evidence in the record clearly and convincingly supports a finding that appellee‘s financial difficulties were caused by his own chronic overspending.” (Majority Decision at para 35.) The only source provided for this “finding” is the Presentence Investigation Report (“PSI“). The PSI mentions three bankruptcies and Nichter‘s description of financial difficulties: “Currently, he states he is struggling financially and worries about finances regularly.”4 (PSI at 9.) Two of the bankruptcies occurred so far in the past that they cannot plausibly be connected to Nichter‘s financial difficulties at the time of the offense conduct. From this, and the “absence of any evidence suggesting another cause of [Nichter‘s] financial problems,” the majority believes that “the only reasonable conclusion to draw from this record is that [he] caused his own dire financial straits by engaging in chronic overspending.” (Majority Decision at para 36.)
{66} The relationship of Nichter‘s bankruptcies to the majority‘s analysis is unclear, but it has chosen to cite them when finding that he acted out of “selfish” motives stemming from “self-induced” financial problems. There is no evidence in the record regarding the cause of his bankruptcies. A study conducted between Nichter‘s second and third bankruptcies
point is that when statistics show that the majority of U.S. bankruptcies arise from medical debts, and there is no evidence at all in the record to explain the cause of a debtor‘s financial problems, even statistics make it less likely than not that the problems arose from selfishness or “chronic overspending.” Thus, the majority‘s assumption is not “the only reasonable conclusion to draw from th[e] record,” as it asserts. (Majority Decision at para 36.) Rather, it is simply guesswork contradicted by basic facts. Thus, the majority‘s finding is irreconcilable with the clear and convincing standard, which requires ” ‘measure or degree of proof which is more than a mere “preponderance of the evidence.” ’ ” Marcum at para 22, quoting Cross at paragraph three of the syllabus. For these reasons, there is absolutely no support in the record for the majority‘s speculative “finding,” much less evidence that would “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established,” as required under the clear and convincing standard. Marcum at para 23.
{67} Similarly, the majority states that the PSI‘s paraphrase of Nichter‘s statement regarding his financial difficulties “establishes that he was motivated to commit identity fraud by his own selfish need to obtain funds to cover his monthly expenses.” (Majority Decision at para 40.) Where the PSI actually quotes Nichter, he states only the following: “I was in dire straights financially and could not afford my monthly bills.” (PSI at 4.) The PSI is silent as to the cause of Nichter‘s financial difficulties and attests only to their severity. Yet, the majority repeatedly refers to his problems as “self-induced,” stemming from “chronic overspending” based on his “selfish” motives. The insistence on such utterly baseless and unsupported factual conclusions contravenes the applicable standard of review. There is no clear and convincing evidence for any of these findings, as the standard of review demands.
{68} Under the