2005 Ohio 2785 | Ohio Ct. App. | 2005
{¶ 4} An appellate court reviews a trial court's sentence on a misdemeanor violation under an abuse of discretion standard. R.C.
{¶ 5} R.C.
{¶ 6} Subsection (B) then lists factors a trial court, after considering the purposes of misdemeanor sentencing, must consider in determining the appropriate sentence to issue. R.C.
{¶ 7} "(a) The nature and circumstances of the offense or offenses;
{¶ 8} "(b) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender has a history of persistent criminal activity and that the offender's character and condition reveal a substantial risk that the offender will commit another offense;
{¶ 9} "(c) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender's history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender's conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences;
{¶ 10} "(d) Whether the victim's youth, age, disability, or other factors made the victim particularly vulnerable to the offense or made the impact of the offense more serious;
{¶ 11} "(e) Whether the offender is likely to commit future crimes in general, in addition to the circumstances described in divisions (B)(1)(b) and (c) of this section." R.C.
{¶ 12} The record in this case is clear that the trial court complied with the misdemeanor sentencing statute. First, it considered the purposes of the misdemeanor sentencing statute enumerated under R.C.
{¶ 13} "The overriding purposes of misdemeanor sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the impact of the offense upon the victim and the need for changing the offender's behavior, rehabilitating the offender, and making restitution to the victim of the offense, the public, or the victim and the public." R.C.
{¶ 14} The trial court specifically stated these purposes at the sentencing hearing. (Tr. 6). It even went as far as to explain how the purposes applied to the initial case. (Tr. 6). It stated that, "there is a concern on the public's part about the Defendant's behavior and the Court's sentence is going to reflect an effort to protect the public from future crime." (Tr. 6). Thus, the trial court complied with R.C.
{¶ 15} Second, the trial court considered all relevant factors under R.C.
{¶ 16} Subsection (B)(1)(d) of R.C.
{¶ 17} Absent from R.C.
{¶ 18} Considering how closely the trial court's conversation followed the statute and the comments referenced above, we find that the trial court considered all of the relevant factors in subsection (B)(1). Thus, the trial court acted in conformity with subsection (B)(1).
{¶ 19} Glass argues that the trial court abused its discretion when it did not consider two additional factors that are not specifically listed in subsection (B)(1): Glass' mental health, and Glass' attempt to clean-up the property. We find this argument unpersuasive.
{¶ 20} Subsection (B)(2) of R.C.
{¶ 21} "In determining the appropriate sentence for a misdemeanor, in addition to complying with division (B)(1) of this section, the court may consider any other factors that are relevant to achieving the purposes and principles of sentencing set forth in section
{¶ 22} The language in this subsection, use of the word may, indicates that it is not mandatory for the trial court to consider other factors. Thus, it was within the trial court's discretion to consider the above two factors listed by Glass if it so chose.
{¶ 23} As to the mental health issue, the trial court was aware of the alleged mental health problem and did consider it in sentencing. At the beginning of the sentencing hearing, counsel for Glass referenced the alleged mental health issue. (Tr. 2-4). Glass then spoke to the court and he referenced his alleged mental health problem. (Tr. 5). Furthermore, the PSI briefly references Glass' mental health issues. Moreover, at the end of the sentencing hearing, the trial court stated the following in reference to Glass' mental health:
{¶ 24} "The Court: Let me speak to that. This Court is the Court that will conduct the mental health treatment program. This Court understands, number one, you don't fit the profile for that Court. I do understand that you believe you have serious mental health issues, but not to the extent that you belong in that particular program. Just judging from you [sic] experience with the mental health field and from the legal perspective, you are quite aware of what's going on, and I believe you have the facilities to address these issues. Continuing counseling is appropriate at this time, but that has been — " (Tr. 12-13).
{¶ 25} Even though there was only a little information in the PSI, the trial court was well aware of the alleged mental health issue. The trial court did consider this issue and it appears that sufficient information was before it to make an informed decision regarding sentencing. Thus, Glass' argument as to this factor is inaccurate, the trial court did consider the mental health issue when sentencing him.
{¶ 26} As to the issue of clean-up, counsel for Glass did inform the court that there was some clean-up of the property. Yet, other information also suggested that sometime prior to the sentencing hearing another citation for violating the same ordinance section was issued. Thus, information as to any clean-up of the property was before the trial court to consider. However, due to the conflicting nature of the evidence, we cannot conclude that the trial court abused its discretion by not using any alleged clean-up as a mitigating factor in sentencing. Regardless, even if the evidence was clear that clean-up occurred, as stated above, it was within the trial court's discretion to consider or not consider this factor. Most likely it would not be an abuse of discretion for the trial court to disregard this factor when considering that Glass had six previous similar violations. Thus, this argument lacks merit.
{¶ 27} Considering all the above, we cannot conclude that the trial court abused its discretion in sentencing Glass to 30 days in jail for violating Youngstown City Ordinance 521.08(c).
{¶ 28} For the foregoing reasons, the judgment of the trial is hereby affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.