State v. Brown

[Cite as State v. Brown, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                Plaintiff-Appellee,               :
                                                           No. 113398
                v.                                :

MICHAEL BROWN,                                    :

                Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: August 1, 2024


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-23-678601-A


                                            Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Dominic Neville, Assistant Prosecuting
                Attorney, for appellee.

                Allison S. Breneman, for appellant.


ANITA LASTER MAYS, J.:

                   Defendant-appellant Michael Brown (“Brown”) appeals the sentence

imposed for his conviction for aggravated menacing, a violation of R.C. 2903.21, a

first-degree misdemeanor. We affirm the trial court’s judgment.
I.   Background and Facts

                On February 20, 2023, Brown was indicted for: Count 1, menacing

by stalking, R.C. 2903.211(A)(1), with a furthermore clause of threat of physical

harm,     a   fourth-degree    felony;   and   Count 2,    menacing     by    stalking,

R.C. 2903.211(A)(1), with a furthermore clause of trespass on land or premises

where the victim lives, is employed, or attends school, a fourth-degree felony.

                On October 24, 2023, Brown entered a guilty plea to amended

Count 1, aggravated menacing, R.C. 2903.21, a first-degree misdemeanor, and

Count 2 was nolled. Brown was sentenced to $250 and costs, 180 days with 90 days

suspended, a two-year probationary period, and no contact with the victim. The trial

court’s sentencing entry provided in relevant part that the trial court considered all

required factors of the law.

                On October 30, 2023, the trial court issued a nunc pro tunc entry

correcting the sentencing entry to accurately reflect the trial court’s sentence on the

record:

        Nunc pro tunc entry as of and for 10/24/2023.
        Defendant is sentenced to 180 days county jail.
        90 days are suspended.
        Defendant to serve 90 days.
        Probation 2 years.

Journal Entry 162959802 (Oct. 30, 2023) p. 1.
II. Assignment of Error

                  Brown assigns a single error on appeal: the trial court abused its

discretion by imposing a prison sentence contrary to R.C. 2929.11 and the purposes

and principles of the felony sentencing guidelines.

III. Discussion

                  Brown was convicted and sentenced for aggravated menacing,

R.C. 2903.21, a first-degree misdemeanor. Thus, the R.C. 2929.11 felony sentencing

guidelines do not apply to misdemeanors though the misdemeanor sentencing

guidelines under R.C. 2929.21 “are substantially similar to those applied in felony

sentencing.” S. Euclid v. Bickerstaff, 

, ¶ 7 (8th Dist.).             In the

interest of justice, we analyze the proffered error accordingly.

          A. Standard of Review

                  “A trial court enjoys broad discretion in imposing sentence on a

misdemeanor offense.” Lakewood v. Dobra, 

 (8th Dist.), citing

Cleveland v. Meehan, 

 (8th Dist.). “The sentence imposed by

the trial court will not be disturbed on appeal absent an abuse of this discretion.” Id.

at ¶ 8.

          In fashioning a misdemeanor sentence, a trial court must consider the
          overriding purposes of misdemeanor sentencing “to protect the public
          from future crime by the offender and others and to punish the
          offender.” R.C. 2929.21. The trial court must also consider all factors
          enumerated in R.C. 2929.22(B).

Id. at ¶ 9.
              Generally, a trial court’s failure to consider the factors is an abuse of

discretion. Id. at ¶ 10, citing Maple Hts. v. Sweeney, 

 (8th

Dist.). “An abuse of discretion occurs when a court exercises its judgment in an

unwarranted way regarding a matter over which it has discretionary authority.”

State v. Malfregeot, 

 (8th Dist.), citing Johnson v. Abdullah,

.

              “[T]he trial court is not required to make factual findings on the

record related to these factors.” 

, citing 

. ‘“[W]hen a

misdemeanor sentence is within the statutory limits, the trial court is presumed to

have considered the required factors [under R.C. 2929.22], absent a showing to the

contrary by the defendant.’” 

 quoting 

      B. Analysis

              R.C. 2929.21 sets forth the purposes of misdemeanor sentencing.

“The overriding purposes of misdemeanor sentencing are to protect the public from

future crime by the offender and others and to punish the offender.”

R.C. 2929.21(A).

      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. 2929.22 guides the trial court’s determination of an appropriate

misdemeanor sentence. Factors include
      the nature and circumstances of the offense; whether the
      circumstances indicate that the offender has a history of persistent
      criminal activity and poses a substantial risk of reoffending; and
      whether the circumstances regarding the offender and the offense
      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. See R.C. 2929.22(B)(1)(a)-(c). Additionally, the court
      may consider any other factors that are relevant to achieving the
      purposes and principles of sentencing. R.C. 2929.22(B)(2).

S. Euclid v. Bickerstaff, 

, ¶ 8 (8th Dist.).

              Next, R.C. 2929.25 provides

      two options for sentencing on misdemeanors: (1) directly impose a
      sentence that consists of one or more community control sanctions
      authorized by R.C. 2929.26, 2929.27, or 2929.28; or (2) impose a jail
      sentence, suspend some or all of that sentence, and place the offender
      under a community control sanction or combination of community
      control sanctions authorized under R.C. 2929.26, 2929.27, or 2929.28.

Westlake v. Rios, 

 (8th Dist.), citing R.C. 2929.25(A)(1)(a)-(b);

see also Walton Hills v. Olesinski, 

 (8th Dist.). “The

duration of all community control sanctions cannot exceed five years.” 

 citing

R.C. 2929.25(A)(2).

      C. Discussion

              Brown argues that the trial court did not consider Brown’s acceptance

of guilt and factors cited to the trial court in mitigation. “There was no justifiable

reason to give Brown both time in jail and two years of probation to follow for one

misdemeanor of the first degree.” Brief of appellant, p. 6. Brown offers that he

explained the history of his relationship with and prior engagement to the victim,

advised the court of his heart condition problems, highlighted his honorable
discharge from the Marines, and expressed remorse. “The facts in this case evidence

a breakup that resulted in hurt feelings and threats on both sides, none that ended

in action.” 

 Brown asks this court to release him from the remainder of his term

of probation and that time should be considered served.

                The record reflects the trial court reviewed Brown’s criminal

history, heard a statement from the victim, and considered Brown’s factors cited in

mitigation. We reiterate that the trial court is not required to make the factual

findings supporting the statutory factors on the record. Dobra, 

 (8th Dist.), citing Sweeney, 

 (8th Dist.). Brown has not

overcome the presumption that the trial court considered the requisite factors, and

the sentence is within the statutory limits. 

 citing 

 The sentencing entry

provides that the trial court “considered all required factors of the law.” The trial

court did not abuse its discretion. The judgment is affirmed.

              The assigned error is overruled.

IV. Conclusion

              The trial court’s judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



ANITA LASTER MAYS, JUDGE

LISA B. FORBES, P.J., and
EILEEN T. GALLAGHER, J., CONCUR