[Cite as State v. Bollinger, 2019-Ohio-2292.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                  :    JUDGES:
                                                :    Hon. John W. Wise, P.J.
        Plaintiff - Appellee                    :    Hon. Craig R. Baldwin, J.
                                                :    Hon. Earle E. Wise, J.
-vs-                                            :
                                                :
KRYSTIE JO BOLLINGER,                           :    Case No. CT2018-0067
                                                :
        Defendant - Appellant                   :    OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Zanesville Municipal
                                                     Court, Case No. CRB1800197




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 6, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DAVID J. TARBERT                                     ERIC J. ALLEN
EMILY STRANG TARBERT                                 The Law Office of Eric J. Allen, Ltd.
SCOTT D. EICKELBERGER                                4200 Regent St., Suite 200
City of Zanesville, Law Director's Office            Columbus, Ohio 43219
401 Market Street, Suite 209
Zanesville, Ohio 43701
Muskingum County, Case No. CT2018-0067                                             2

Baldwin, J.

       {¶1}   Defendant-appellant Krystie Jo Bollinger appeals her sentence from the

Zanesville Municipal Court. Plaintiff-appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On or about February 12, 2018, appellant dropped off a flyer at St. Nicholas

Church in downtown Zanesville. The flyer requested money for a domestic violence

charity. After receiving a complaint from the church secretary, who was suspicious, the

Zanesville Police Department provided the Church with $100.00 in bait money and, after

the Church called appellant, waited outside for appellant to come and collect the funds.

Appellant showed up at the Church shortly thereafter, collected the money and was

arrested. The charity had advised the police that there was no charity event planned, that

appellant was not a part of their organization, and that their logo was being used by

appellant without permission. Appellant was charged with petty theft (by deception) and

possession of criminal tools, both misdemeanors of the first degree. At her arraignment

on February 13, 2018, appellant entered a plea of not guilty to the charges.

       {¶3}   At a plea hearing on April 5, 2018, appellant pleaded guilty to theft by

deception and appellee agreed to dismiss the remaining charge. At appellant’s request,

the trial court deferred sentencing. Appellant was referred to the probation department for

possible drug/mental health assessment and the trial court stated that if treatment was

suggested and completed, it would consider dismissing the charges. At the plea hearing,

the trial court told appellant that she had an opportunity to help herself and to “take

advantage of it and do it.” Transcript of April 5, 2018 hearing at 9.
Muskingum County, Case No. CT2018-0067                                               3


       {¶4}   On September 20, 2018, a warrant was issued due to appellant’s failure to

appear at a follow up hearing.

       {¶5}   A sentencing hearing was held on October 2, 2018. The trial court, as

memorialized in a Judgment Entry filed on October 2, 2018, sentenced appellant to sixty

(60) days in jail with thirty (30) days suspended on the petty theft charge. The trial court

also found appellant in contempt of court for failure to appear at a prior sentencing hearing

and sentenced her to ten (10) days in jail, to run consecutively, for an aggregate sentence

of forty (40) days in jail. The trial court also fined appellant $200.00.

       {¶6}   Appellant now raises the following assignment of error on appeal:

       {¶7}   “I. THE TRIAL COURT ERRED BY IMPOSING A SENTENCE WHICH

INCLUDED A DEFINITE JAIL TERM OF FORTY DAYS.”

                                               I

       {¶8}   Appellant, in her sole assignment of error, argues that the trial court erred

in sentencing her to forty days in jail. We disagree.

       {¶9}   Misdemeanor sentencing rests in the sound discretion of the trial court. R.C.

2929.22(A). In order to find an abuse of that discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217. 450 N.E.2d 1140 (1983). There is

no requirement that a trial court, in sentencing on misdemeanor offenses, specifically

state its reasons on the record. State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005-

Ohio-1046, ¶ 20.

       {¶10} R.C. 2929.22 governs sentencing on misdemeanors and states, in relevant

part, the following:
Muskingum County, Case No. CT2018-0067                                                4


       {¶11} “(B)(1) In determining the appropriate sentence for a misdemeanor, the

court shall consider all of the following factors:

       {¶12} “(a) The nature and circumstances of the offense or offenses;

       {¶13} “(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;

       {¶14} “(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;

       {¶15} “(d) Whether the victim's youth, age, disability, or other factor made the

victim particularly vulnerable to the offense or made the impact of the offense more

serious;

       {¶16} “(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.

       {¶17} “(2) 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

2929.21 of the Revised Code.

       {¶18} “(C) Before imposing a jail term as a sentence for a misdemeanor, a court

shall consider the appropriateness of imposing a community control sanction or a
Muskingum County, Case No. CT2018-0067                                              5


combination of community control sanctions under sections 2929.25, 2929.26, 2929.27,

and 2929.28 of the Revised Code. A court may impose the longest jail term authorized

under section 2929.24 of the Revised Code only upon offenders who commit the worst

forms of the offense or upon offenders whose conduct and response to prior sanctions

for prior offenses demonstrate that the imposition of the longest jail term is necessary to

deter the offender from committing a future crime.”

       {¶19} R.C. 2929.21 as referenced in R.C. 2929.22(B)(2) states the following in

pertinent part:

              A court that sentences an offender for a misdemeanor or minor

       misdemeanor violation of any provision of the Revised Code, or of any

       municipal ordinance that is substantially similar to a misdemeanor or minor

       misdemeanor violation of a provision of the Revised Code, shall be guided

       by the overriding 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. 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.

       {¶20} There is nothing in the misdemeanor sentencing statute that requires the

court to set forth its analysis regarding the purposes and principles of sentencing. See

R.C. 2929.21; 2929.22. Rather, we presume the court considered the factors unless the

record affirmatively shows that the court failed to consider the principles and purposes of
Muskingum County, Case No. CT2018-0067                                                6


sentencing or the sentence is strikingly inconsistent with the relevant considerations.

State v. James, 7th Dist. Columbiana No.07CO47, 2009-Ohio-4392, ¶ 50 (in a felony

case), relying on State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988). Thus, a

silent record raises the rebuttable presumption that the sentencing court considered the

statutory sentencing criteria. Id.

       {¶21} Appellant specifically contends that the record does not support the

imposition of a definite jail sentence. At the sentencing hearing, the trial court noted that

appellant was supposed to be going to Muskingum Valley or Allwell for counseling and

told the court that she was doing great, but did not make it to counseling very often and

only attended counseling two or three times over a period of three months.             While

appellant indicated to the trial court that she would be happy to go to outpatient treatment

through Allwell for a drug problem, the trial court voiced concerns that appellant did not

do what she said that she was going to do. Appellant had admitted to using Adderall

without a prescription and to smoking marijuana, but claimed that she was not using

anymore.

       {¶22} Based on the foregoing, we find that the trial court did not abuse its

discretion in sentencing appellant to a definite jail sentence. The trial court’s decision was

not arbitrary, unconscionable or unreasonable.

       {¶23} Appellant’s sole assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2018-0067                                          7


      {¶24} Accordingly, the judgment of the Zanesville Municipal Court is affirmed.


By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.
