STATE OF OHIO, Plaintiff-Appellee, - v - JOHN MICHAEL VIEIRA, Defendant-Appellant.
CASE NO. 2021-L-110
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY
May 16, 2022
[Cite as State v. Vieira, 2022-Ohio-1636.]
Criminal Appeal from the Court of Common Pleas Trial Court No. 2021 CR 000038 Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administratiоn Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Jamie R. Eck, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
MATT LYNCH, J.
{1} Defendant-appellant, John Michael Vieira, appeals his sentence for Abduction in the Lake County Court of Common Pleas. For the following reasons, we affirm the decision of the lower court.
{2} On March 5, 2021, Vieira was indicted by the Lake County Grand Jury for Kidnapping, a felony of the first degree, in violation of
{3} A jury trial was held on August 3-5, 2021. Prior to the start of the trial, the State dismissed the charge of Menacing by Stalking. According to the testimony and evidence presented, Vieira went to the home of Rachael Ingle, the mother of his child whom he had been dating on and off for eighteen yеars. While arguing, according to Vieira and Ingle, Vieira grabbed Ingle, threw her into his car, and drove down the street. Witness testimony indicated Vieira was driving erratically. Ingle testified she jumped out of the vehicle and was hit by thе open door when the vehicle backed up. When Vieira was arrested, officers observed that he had watery eyes, a strong odor of alcohol, and slurred speech.
{4} The jury found Vieira guilty of Abduction and both counts of OVI. He was acquitted of Kidnapping, Felonious Assault, and Domestic Violence.
{5} A sentencing hearing was held on September 16, 2021, and the court merged the OVI offenses. The defense argued that Vieira had managed his sobriety over the past five years and had taken responsibility for his actions by admitting to them in his testimony. Counsel also noted a letter from Vieira‘s employer characterizing him as a hard worker and gоod employee. Vieira apologized for his actions and stated that he has made strides in addressing his drinking problem. The State emphasized Vieira‘s actions of causing Ingle to fear for her life, driving intoxicatеd, and not staying at the scene after she was hit by the vehicle door. The State also pointed to his extensive history of OVI offenses and requested a three-year sentence on each offense. The Prеsentence Investigation Report
{6} The court indicated that it had considered all of the evidence and statements, the purposes and principles of sentencing under
{7} On appeal, Vieira raises the following assignment of error:
{8} “The trial court erred by sentencing the defendant-appellant to the maximum prison term of thirty-six months on count two, as the trial court‘s findings with respect to
{9} In his sole assignment of error, Vieira argues his sentence for Abduction was contrary to law since “the sentencing factors under 2929.12 should have been weighed differently as several mitigаting factors were completely ignored,” including his expression of remorse and that his relationship with the victim provoked the offense. He also argues that the court considered that the victim was a family оr household member and such factor
{10} “The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court.”
{11} “A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing” which are “to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.”
{12} “Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum * * * or more than the minimum sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraрh seven of the syllabus. “[T]here is no mandate for judicial fact-finding” in relation to
{13} The Ohio Supreme Court has clarified the application of
{14} Vieira‘s arguments center around the lower court‘s weighing of the factors and whether it properly assigned weight to various factors such as the parties’ relationship and his remorse. This court is prohibited under Jones from weighing the evidence. Id.; State v. Stanley, 11th Dist. Trumbull No. 2020-T-0039, 2021-Ohio-549, ¶ 12 (“the competing factors in
{15} This court is permitted to consider arguments that certain factors were applied inappropriately to the extent that they relate to lеgal issues, such as consideration of a fact or issue that is precluded by law. See State v. Chase, 11th Dist. Lake Nos. 2020-L-070 and 2020-L-071, 2021-Ohio-1006, ¶ 10 (“[w]e will address [appellant‘s] argument to the limited extent that [he] claims * * * the trial court explicitly relied оn facts that it was precluded from considering by law.“). In addition to the argument that the lower court improperly weighed the factors, Vieira contends that it considered a factor as making the offense more serious which was inapplicable. Specifically, he takes issue with the court‘s finding, as to the Abduction charge, that the victim was a family or household member since the two had a child together.
{16} Pursuant to
{17} The sole assignment of error is without merit.
{18} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, sentencing Vieira for Abduction and OVI, is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
JOHN J. EKLUND, J.,
concur.
MATT LYNCH
JUDGE