State v. PalmerState v. Palmer
Brian T. Goldberg, Cincinnati, Ohio, for appellant1.
Ariana Bowles Norris, Adams County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, West Union, Ohio, for appellee.
{¶1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. Joshua Palmer, defendant below and appellant herein, raises one assignment of error for review:
“THE TRIAL COURT’S SENTENCE OF APPELLANT, WHICH INCLUDED BOTH THE MAXIMUM JAIL TERM AND THE MAXIMUM FINE, WAS AN ABUSE OF DISCRETION.
R.C. 2929.22 .”
{¶3} On December 12, 2024, appellant pleaded guilty to one count of aggravated drug possession in violation of
{¶4} At appellant’s March 4, 2025 sentencing hearing, the trial court considered the
$2,950 joint with Co-defendant, $120.00 per month to Restitution beginning Jan. 2026 until paid in full, must obtain a valid D.L. by Dec. 24, 2025, must attend 1 AA/NA mtg per week for 24 mos. beginning after completion of TCC/Hughes w/ vocational certification, 6 mo. post-residency treatment plan- completed, must submit to DNA testing, pay all costs and fees.
{¶5} On May 6, 2025, appellee filed a petition for capias and alleged that appellant violated: (1) Condition 1, obey all federal, state, and local laws and court orders, due to a pending warrant for criminal trespass, (2) Condition 8, refrain from possessing illegal drugs, drug abuse instruments, or drug paraphernalia, because appellant tested positive for methamphetamine and THC on April 24, 2025, tested positive for alcohol on May 4, 2025, and admitted to law enforcement that he would test positive for methamphetamine and THC on May 8, 2025, and (3) Condition 11, comply with all sanctions or special conditions of the court, because appellant left his treatment facility on May 5, 2025 against staff advice.
{¶6} On May 8, 2025, appellee filed a notification of preliminary hearing and charges and alleged that appellant violated: (1) Condition 1 because he has a pending criminal trespass charge, (2) Condition 8 because he tested positive for methamphetamine, THC, and alcohol, and (3) Condition 11 because he left his treatment facility on May 5, 2025. At the May 28,
{¶7} At the August 20, 2025 community-control hearing, Adams County Probation Officer Jessica Key testified that appellant (1) violated Community Control Condition 1 when the State charged him with criminal trespassing on April 8, 2025, (2) violated Condition 8 when he tested positive for methamphetamine and THC on April 24, 2025, tested positive for alcohol on May 4, 2025, and admitted to Officer Carol Williams upon his admission to the Adams County Jail that he would test positive for THC and methamphetamine, and (3) violated Condition 11 when he left a treatment facility on May 5, 2025 against staff advice. The trial court concluded that, based upon the uncontroverted testimony, appellant did in fact violate Conditions 1, 8, and 11 of his community control.
{¶8} At appellant’s October 28, 2025 sentencing hearing, the trial court stated that it had considered the record, the oral statements, any victim impact statements from the previous pre-sentence investigation report, as well as the
{¶9} Consequently, the trial court sentenced appellant to (1) serve a 10-month prison term on Count 1, (2) serve a 15-month prison term on Count 2, to be served consecutively to Count 1 for a total 25-month prison term, (3) serve an optional maximum two-year postrelease control term, and (4) pay costs. This appeal followed.
{¶10} In his sole assignment of error, appellant asserts that the trial court erred when it sentenced him to serve consecutive sentences. Appellant contends that although the trial court stated the necessary statutory language on the record and in the sentencing entry, the record does not support the court’s findings. Appellee, however, argues that
{¶11} In general, appellate courts give broad deference to a trial court‘s sentencing decision and do not serve as a “second-tier sentencing court.” State v. Blanton, 2025-Ohio-237, ¶ 30 (4th Dist.), citing State v. Glover, 2024-Ohio-5195, ¶ 39. Ordinarily, appellate courts defer to the broad discretion trial courts have in making sentencing decisions, and
{¶12}
The court hearing an appeal [of a felony sentence that includes consecutive sentences] ... 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 ... (C)(4) of section 2929.14 ...;
b) That the sentence is otherwise contrary to law.
This statute does not allow an appellate court to reverse or modify a sentence because a trial court arguably abused its discretion. Glover at ¶ 45; Blanton at ¶ 31. An appellate court may increase, decrease, or otherwise modify consecutive sentences only if it clearly and convincingly finds that the record does not support the trial court‘s findings or it clearly and convincingly finds that the sentence is contrary to law. Glover at ¶ 42. “ ‘[C]lear and convincing evidence’ is a degree of proof that is greater than preponderance of the evidence but less than the beyond-a-reasonable-doubt standard used in criminal cases.” Id. at ¶ 46. Furthermore, “[n]owhere does the appellate-review statute direct an appellate court to consider the defendant‘s aggregate sentence.” Instead, we limit our review to the trial court‘s consecutive sentencing findings under
{¶13} “Ohio law presumes that a defendant convicted of multiple crimes will serve his sentences concurrently.” Glover,
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶14} Only one of the three potential findings under
{¶16} In the case sub judice, appellant concedes that both the sentencing entry and the sentencing transcript include the necessary findings. Appellant, however, asserts that the record does not support those findings. First, appellant contends that, aside from the community control case, his only other criminal history was his most recent misdemeanor criminal trespass conviction. Thus, appellant reasons, the record did not demonstrate that consecutive sentences are necessary to protect the public or to punish the offender for convictions of
{¶17} Appellee points out, however, that shortly after given a second chance on probation, appellant tested positive for marijuana, methamphetamine, and alcohol and was arrested on the new criminal charge of trespassing. Appellee argues that, although
{¶18} At the community control revocation sentencing hearing, the trial court stated:
The original facts of the case would have been that Mr. Palmer and his companion had, I believe, invaded the province of properties that were maybe maintained, a
camper that was maintained for hunting and those types of things for people coming out of state or even in state to deer hunt or do other hunting, and that officers stopped them. And both he and his co-defendant were given the opportunity to better themselves and to be productive citizens. Being a small community, as Adams County is, I have to commend the victims in this case, that while the village of Manchester, you’re too young to remember this, but the village of Manchester used to be vibrant. I mean, there were stores and there were butcher shops and there were jewelry stores and there were Vance’s department store where you got yarn and there was a Five and Dime, Ben Franklin, and there was the Bristow’s store. And people used to take their cars down and park them on the street so they could go down and watch all the people at night as they were enjoying this. There was Woody’s Jewelry Store.
And over time, people that wanted to live the life that you and your companion did, kind of vagabonds with drug habits, we’ve seen a town that if Bill Gates wanted to have the view of Manchester, he couldn’t afford it, even though he owns Microsoft. The Ohio River is beautiful.
Then you have a few people that have tried to rebuild that community, and one of them is the victim of this offense. But I do admire them that while they could have certainly had every right to suggest that why was I giving somebody a change, as we did in both your cases, I was hoping you would accept the invitation to become productive. Within 10 days, criminal trespass is where somebody tells you not to come on their property, but that’s not good enough for you. The drug abuse problems, the treatment, ultimately a waste of money. The more drugs, testing positive even while in treatment. And Mr. Palmer, it is never with any per se benefit to the soul when the court has to make decisions that it will have to make today.
When we had hoped that a young man of your age, and I realize you’re broaching 40 now, right?
I don’t know when you thought you were going to start, but there’s got to be something to shake your conscience. There’s got to be something that protects the public,
and it will be the order of this court that the court finds that after due consideration, the defendant is no longer amenable to available community control sanctions when you apply the principles and purpose of sentencing, that within 10 days there were violations of the opportunity of a lifetime to get treatment, follow the rules, pay back the people you had harmed, and be productive as a citizen. But that was denied the invitation.
{¶19} In a similar case, State v. Monroe, 2025-Ohio-5248 (2d Dist.), Monroe argued that no evidence existed to support the trial court’s finding that a consecutive sentence was necessary to protect the public from future crime or to punish the offender. Moreover, Monroe claimed that the imposition of consecutive prison sentences for two convictions of fifth-degree felony possession was disproportionate to the seriousness of his conduct and the danger he posed to the public. Id. at ¶ 16. According to Monroe, he clearly “had an issue staying clean. There is no evidence that he posed a danger to the public. He posed a danger to himself by failing to remain drug-free. His acts of possessing drugs were not posing a danger to the public.” Id. Although Monroe possessed a lengthier criminal history than appellant, we note that the Monroe court concluded, “criminal history of similar offenses, combined with his rejection of rehabilitative resources on bond, demonstrated that he continued to pose a danger to the public, such that consecutive sentences were necessary to protect the public from future crime by him.” Id. at ¶ 17. Similarly, in the case at
{¶20} As appellee notes, the trial court met its
{¶21} After our review of the entire record, we conclude that the record in the instant case does not clearly and convincingly fail to support the trial court’s imposition of consecutive sentences.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period set forth in the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.