[Cite as State v. Thomas,
2016-Ohio-4586.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Sylvania Court of Appeals No. L-15-1149
Appellee Trial Court No. TRC0807565A
v.
Keith W. Thomas DECISION AND JUDGMENT
Appellant Decided: June 24, 2016
…
Robert A. Pyzik, Chief Prosecutor, and Melissa R. Bergman,
Assistant Prosecutor, for appellee.
Tim A. Dugan, for appellant.
…
YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Keith Thomas, appeals the judgment of the Sylvania Municipal
Court, enforcing a previously stayed jail term, after finding appellant guilty of a
probation violation. For the following reasons, we affirm.
A. Facts and Procedural Background
{¶ 2} On June 29, 2009, appellant entered a no contest plea, and was found guilty
by the Sylvania Municipal Court of reckless operation, third offense, a misdemeanor of
the third degree, pursuant to R.C. 4511.20. On October 2, 2009, appellant was sentenced
to a five-year term of probation, and 60 days of incarceration. The court stayed 51 of the
60 days, and appellant spent 9 days in custody. Appellant was further ordered, as a term
of probation, to complete alcohol treatment and refrain from any further convictions for
alcohol-related charges.
{¶ 3} On December 9, 2013, appellant was convicted of O.V.I. in Toledo
Municipal Court pursuant to R.C. 4511.19. Due to the subsequent conviction on an
alcohol-related offense, appellant admitted to, and was found guilty of, a probation
violation in Sylvania Municipal Court. At sentencing on the probation violation, the
court ordered 51 days of appellant’s suspended sentence enforced, in increments of 25
and 26 days, with a review hearing separating the two terms. Appellant filed a timely
appeal, claiming the trial court abused its discretion by enforcing the suspended days.
B. Assignment of Error
{¶ 4} On appeal, appellant assigns a sole assignment of error for our review:
1. The Trial Court abused its discretion in ordering Appellant to
serve a jail term after admitting to a violation of the terms of probation.
2.
II. Analysis
{¶ 5} In his sole assignment of error, appellant argues that the court abused its
discretion by sentencing appellant to a jail term. He argues that the court failed to
consider his physical ailments, preventing him from driving a car, thereby making it
impossible for him to reoffend. This argument lacks merit.
{¶ 6} We review misdemeanor sentences for an abuse of discretion. State v.
Cossack, 7th Dist. No. 08 MA 161, 2009-Ohio-3327, ¶ 20. In imposing a sentence for a
misdemeanor offense, a trial court must consider the purposes and principles of
misdemeanor sentencing as set forth in R.C. 2929.21, as well as the sentencing factors set
forth in R.C. 2929.22. The failure to do so constitutes an abuse of discretion. State v.
Dominijanni, 6th Dist. Wood No. WD-02-008,
2003-Ohio-792, ¶ 6. Nevertheless, when
a misdemeanor sentence is imposed within the statutory limits, a reviewing court will
presume that the judge followed the statutes, absent evidence to the contrary. Toledo v.
Reasonover,
5 Ohio St.2d 22,
213 N.E.2d 179 (1965), paragraph one of the syllabus;
State v. Townsend, 6th Dist. Lucas No. L-01-1441,
2002-Ohio-4077, ¶ 6.
{¶ 7} Appellant’s argument, in its most basic terms, is that because of his poor
health it would be unsafe for him to get behind the wheel, thereby making it impossible
to reoffend. We would note that appellant has provided no evidence that it would be
physically impossible for him to drive a vehicle, nor has he provided any law to support
this position. The argument that he cannot drive because it is unsafe is unpersuasive,
because he has shown through multiple alcohol-related driving offenses that the safety of
3.
himself and others clearly is not paramount when making the decision to get behind the
wheel.
{¶ 8} Here, the record is clear that at sentencing, the court ordered a presentence
investigation report and heard mitigating circumstances from appellant’s counsel. The
court considered all mitigating statements, including appellant’s health concerns, and
appellant’s apparent inability to drive a car before imposing the sentence. Although
appellant contends that it is unreasonable, capricious and unconscionable for the court to
impose a jail term for failing to complete alcohol treatment, this is not supported by the
record. Appellant was placed on probation for an alcohol-related driving offense. He
violated his probation by committing a subsequent alcohol-related driving offense.
{¶ 9} Imposing a previously stayed jail term, in this case, is not an abuse of
discretion. Consequently, appellant’s assignment of error is not well-taken.
Conclusion
{¶ 10} Based on the foregoing, the judgment of Sylvania Municipal Court is
affirmed. Costs are hereby assessed to appellant in accordance with App.R. 24.
Judgment affirmed.
4.
Sylvania v. Thomas
C.A. No. L-15-1149
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
5.
