[Cite as State v. Anderson, 2016-Ohio-2704.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                            WASHINGTON COUNTY

STATE OF OHIO,                 :
                               :    Case No. 15CA28
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
JON ANDERSON,                  :
                               :
    Defendant-Appellant.       :    Released: 04/21/16
_____________________________________________________________
                         APPEARANCES:

Brian A. Smith, Akron, Ohio, for Appellant.

Kevin A. Rings, Washington County Prosecuting Attorney, and Nicole
Tipton Coil, Assistant Washington County Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Jon Anderson appeals his sentence in the Washington County

Court of Common Pleas, Juvenile Division, after he was convicted of

contributing to the unruliness of a minor, R.C. 2919.24(A)(2), a

misdemeanor of the first degree. On appeal, Appellant asserts the trial court

erred and abused its discretion by sentencing him to a thirty-five day jail

sentence. Upon review, we find no merit to Appellant’s argument.

Accordingly, we overrule Appellant’s sole assignment of error and affirm

the judgment of the trial court.
Washington App. No. 15CA28                                                    2

                                  FACTS

      {¶2} This is a misdemeanor criminal case which originated in the

Washington County Court of Common Pleas, Juvenile Division. On

December 22, 2014, Appellant was charged with a single count of

contributing to the unruliness or delinquency of a minor, a misdemeanor of

the first degree and violation of section 2919.24(A)(2) of the Ohio Revised

Code. The charge stemmed from Appellant’s failure to see that his minor

child was attending school. According to the school’s records, the child

missed 35 days during the 2014-2015 school year.

      {¶3} On June 19, 2015, Appellant pleaded guilty to the single count

contained in the complaint. The matter was reset for sentencing in order to

obtain a presentence investigation. On July 23, 2015, Appellant was

sentenced to 35 days of incarceration, with 20 of those days to be served

consecutively. The entry of sentence is dated July 29, 2015. Appellant later

obtained a personal recognizance bond effectively staying 15 of those days

pending appeal.

      {¶4} This timely appeal followed. Where relevant, additional facts

will be related below.
Washington App. No. 15CA28                                                     3

                        ASSIGNMENT OF ERROR

      “I. THE TRIAL COURT’S SENTENCE OF APPELLANT TO
      THIRTY-FIVE DAYS IN JAIL WAS AN ABUSE OF
      DISCRETION.”

                       A. STANDARD OF REVIEW

      {¶5} We review a misdemeanor sentence for an abuse of discretion.

State v. Farmer, 5th Dist. Licking No. 15CA0044, 2015-Ohio-5434, ¶ 93.

See, State v. Fankle, 31 N.E.3d 1290, 2015-Ohio-1581 (2nd Dist.); State v.

Marcum, 99 N.E.2d 1, 2013-Ohio-2447, (4th Dist.) ¶ 22. A trial court

abuses its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980).

                          B. LEGAL ANALYSIS

       {¶6} Appellant was convicted of R.C. 2919.24(A)(2), contributing

to unruliness or delinquency of a child, which provides in pertinent part as

follows:

      “(A) No person, including a parent, guardian, or other custodian
      of a child, shall do any of the following:

      ***

      (2) Act in a way tending to cause a child or a ward of the
      juvenile court to become an unruly child, as defined in section
      2151.022 of the Revised Code, or a delinquent child, as defined
      in section 2152.02 of the Revised Code * * *.”
Washington App. No. 15CA28                                                        4

      {¶7} Pursuant to R.C. 2151.022, an unruly child is defined as

follows:

      “As used in this chapter, "unruly child" includes any of the
      following:

      (B) Any child who is an habitual truant from school and who
      previously has not been adjudicated an unruly child for being
      an habitual truant * * *.”

      {¶8} Contributing to the unruliness of a minor is a misdemeanor of

the first degree. R.C. 2919.24(B). The maximum penalty for a

misdemeanor of the first degree is 180 days. R.C. 2929.24(A)(1). Appellant

was sentenced to 35 days in jail. Appellant argues the trial court’s sentence

was an abuse of discretion because: (1) the sentence was far in excess of the

average sentence for cases of this type; (2) the facts do not support the trial

court’s imposition of the sentence; (3) the number of days chosen by the trial

court was arbitrary; and (4) the sentence was unconscionable, given its

harmful effect on Appellant’s employment. We begin by reviewing the

statutory guidelines applicable to misdemeanor sentencing.

      {¶9} The guidelines for misdemeanor sentencing are substantially

similar to those applied in felony sentencing. Farmer, supra, at ¶ 90.

Strongsville v. Jaeger, 8th Dist. Cuyahoga No. 99579, 2013-Ohio-4476, ¶ 4.

The court must be guided by the purposes of misdemeanor sentencing,

which are “to protect the public from future crime by the offender and others
Washington App. No. 15CA28                                                     5

and to punish the offender.” See R.C. 2929.21(A); Marcum, supra, at ¶ 23.

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 for

the offense, the public, or the victim and the public. Id. R.C. 2929.21(B)

further provides that a sentence imposed for a misdemeanor shall be

reasonably calculated to achieve the two overriding purposes of

misdemeanor sentencing and consistent with sentences imposed for similar

offenses committed by similar offenders.

      {¶10} When determining the appropriate sentence, the court must

consider the factors listed in R.C. 2929.22(B), including the nature and

circumstances of the offense or offenses and whether the circumstances

indicate that the offender has a history of persistent criminal activity and

poses a substantial risk of reoffending. See R.C. 2929.22(B)(1). Farmer,

supra, at ¶ 90. However, there is no requirement that a trial court in

sentencing on misdemeanor offenses specifically state its reasons on the

record. Id. State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005-Ohio-

1046, ¶ 20. See also, Fankle, supra, at ¶ 18. “ ‘When the court's sentence is

within the statutory limit, a reviewing court will presume that the trial judge

followed the standards in R.C. 2929.22, absent a showing to the contrary.’ ”
Washington App. No. 15CA28                                                                            6

Cleveland v. Go Invest Wisely, 8th Dist. Cuyahoga Nos. 95172, 95173,

95174, 95175, 95176, and 95177, 2011-Ohio-3047, ¶ 10, quoting State v.

Downie, 183 Ohio App.3d 665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 48 (7th

Dist.). See also, Fankle, supra, at ¶ 18.

         {¶11} Appellant first argues his sentence was an abuse of discretion

because it was far in excess of what was described at his arraignment as a

“typical normal sentence” of “about anywhere from three to ten days actual

jail and maybe some suspended jail.” Appellant admits the trial court is not

bound by this particular sentence. However, Appellant argues there are no

unusual facts in this case which would justify the longer sentence. Appellee

responds that although the sentence was in excess of the typical sentence, it

was within the statutory guidelines.1

         {¶12} In State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826,

844 N.E. 2d 372 (2nd Dist.), the appellate court observed that sentences

imposed for misdemeanor offenses must be “consistent with sentences

imposed for similar offenses committed by similar offenders.” Id. at ¶ 51.

R.C. 2929.21(B). To that extent, prior sentences the court imposed in like

cases are precedent, but they are not necessarily binding. Id. The court must

also seek to achieve the two overriding purposes of misdemeanor sentencing
1
  Appellee also argues Appellant agreed to the sentence. At the June 19, 2015 plea hearing, the
trial court advised it was its policy that Appellant would do a day of jail for every day his child
missed school.
Washington App. No. 15CA28                                                      7

in R.C. 2929.21(A), which requires considering the impact of the offense on

the victim, the need for changing the offender's behavior, rehabilitating the

offender, and making restitution to the victim, as well as the other purposes

of R.C. 2929.21(B), reflecting the seriousness of the offense and its impact

on the victim. Id.

      {¶13} In Broadview Hts. v. Misencik, 8th Dist. Cuyahoga No.

100196, 2014-Ohio-1518, ¶ 20, the appellate court noted proportionality in

sentencing does not mean that sentences for similar crimes must be identical.

State v. Sarigianopoulos, 7th Dist. Mahoning No. 12 MA 141, 2013-Ohio-

5772, ¶ 11. Such uniformity would obviate judicial discretion and

undermine the purposes and principles of sentencing. The goal of

proportionality is consistency rather than uniformity. State v.

Georgakopoulos, 8th Dist. Cuyahoga No. 81934, 2003-Ohio-4341, ¶ 26.

Consistency requires a trial court weigh the same factors for each defendant

in order to result in an outcome that is rational and predictable. Id.

Seriousness and recidivism factors account for many of the variations in

sentences for similar offenses.

      {¶14} In Johnson, supra, the Second District Appellate Court

concluded at ¶ 53:

      “ [I]f defendant intends to argue that the sentence imposed in a
      particular misdemeanor case is so inconsistent with sentences
Washington App. No. 15CA28                                                    8

      imposed by that same court for similar offenses committed by
      similar offenders as to be disproportionately harsh, defendant
      must object or otherwise raise that issue in the trial court,
      affording that court an opportunity to correct the question.
      Having failed to do that here, defendant has waived all but plain
      error. No plain error is demonstrated.”

      {¶15} Similarly, in Misencik, supra, the defendant argued that his

sentence was disproportionately severe compared to sentences in similar

cases. He contended the court violated R.C. 2929.21(B), which mandates

that misdemeanor sentences “be consistent with sentences imposed for

similar offenses by similar offenders.” In an attempt to show that his

sentence was not consistent with those in similar cases, Misencik cited three

separate cases involving varying sentences. The Eighth District Appellate

Court noted:

      “None of the information about those other cases is contained
      in the record of the instant appeal because they were not first
      presented to the trial court. * * * [A]lthough a defendant cannot
      be expected to produce his * * * own database to demonstrate
      the alleged inconsistency, the issue must * * * be raised in the
      trial court and some evidence, however minimal, must be
      presented to the trial court to provide a starting point for
      analysis and to preserve the issue for appeal. State v. Roberts,
      8th Dist. Cuyahoga No. 84070, 2005-Ohio-28, ¶ 60. Therefore,
      because Misencik failed to raise this issue in the trial court, he
      has forfeited the argument on appeal.”

      {¶16} In the case sub judice, the prosecutor stated “Similarly situated

cases is three days in jail.” The prosecutor requested the trial court impose a

similar sentence, but not more than 20 days which was the number of days
Washington App. No. 15CA28                                                      9

the State could prove that calls were made to Appellant’s home, to make him

aware his son was not in school. However, the trial court imposed the 35-

day sentence. The trial court also asked Appellant and the attorneys if there

was anything else they wished to say. At that point, no one voiced an

objection to preserve the issue for appellate review. As such, we agree, as in

the previous cases cited, that Appellant has forfeited this argument on

appeal.

      {¶17} Appellant also argues the facts do not support the trial court’s

imposition of sentence. Appellant points out that even the prosecutor

informed the trial court that Appellant was “extremely remorseful.” The

prosecutor also stated “We do not want to see him lose his job as a result of

this.” Our review demonstrates the trial court engaged in a colloquy with

Appellant which covered various topics including Appellant’s workforce

training and past employment, his son’s asthma problem and therapy for

anxiety, and the facts that the son was now in his mother’s custody in West

Virginia and was planning to obtain a GED.

      {¶18} As indicated above, there is no requirement that judges

sentencing misdemeanor offenders state their reasons on the record. Unlike

reviewing judges who must look at a cold record, a trial judge is in a

superior position to evaluate the impact of the evidence because he sees the
Washington App. No. 15CA28                                                       10

mannerisms and reactions of the jurors, witnesses, parties, and attorneys.

Ede v. Atrium, 71 Ohio St.3d 124, 129, 642 N.E.2d 365 (1994)(Wright, J.,

dissenting). While Appellant believes the trial court should have taken his

remorse and job situation into account, we defer to the trial court’s judgment

as to the weight to be given “any other factors that are relevant to achieving

the purposes and principles of sentencing” set forth in R.C. 2929.21.

      {¶19} Appellant also characterizes the trial court’s sentence as

arbitrary in that the trial court arrived at the number of days in Appellant’s

sentence by calculating the number of school days Appellant’s minor child

missed. Appellant entered his plea on June 19, 2015. The trial court

inquired as to the voluntariness of Appellant’s plea and then stated:

      “The only promise that I know that’s been made to you is that,
      it’s my strong belief that you’ll do every day that your child
      didn’t do school, but Attorney Brum and Attorney Graham
      believe- Attorney Brum believes it’s 15 days; Attorney Graham
      believes it’s 20 days, that you actually received a call that your
      child was not in school. * * * So the sentence most likely will
      be between 15 and 20 days but it will be whatever my
      department ultimately determines that you received a call and
      didn’t have your child in school, okay? That will be up to the
      pre-sentence.”

      {¶20} On July 23, 2015 at sentencing, the assistant prosecutor

informed the trial court that Appellant’s son had missed 35 days of school,

and that there were call records received and answered in Appellant’s home

at around 20 days. The prosecutor requested the trial court impose a
Washington App. No. 15CA28                                                      11

sentence similar to others received for the conviction of contributing, but not

more than 20 days. Appellant’s attorney concurred with the prosecutor’s

assessment of the situation and recommendation of sentence.

      {¶21} The trial court then engaged in a colloquy with Appellant,

which concluded with the trial court stating: “You’ve got 35 days. That’s

how many days that kid missed.” Based on the evidence contained in the

hearing transcripts, we do not find the trial court’s sentence to be arbitrary.

The trial court made Appellant aware of his policy on sentencing this

particular offense on June 19, 2015, when he told Appellant “It’s my strong

belief that you’ll do every day your child didn’t do school.”

      {¶22} Appellant contends that the colloquy between him and the trial

court reveals that the trial court was unreceptive to any statements Appellant

attempted to make in mitigation. Appellant concludes that the trial court’s

comments reveal the court drew negative conclusions and demonstrated

overt prejudice on the part of the trial court. While the trial court’s

comments suggest the court was frustrated with Appellant, the trial court

was in the better position to evaluate Appellant’s demeanor and credibility

when he spoke. Again, on this record, it is difficult to interpret the actual

tenor of the exchange between Appellant and the trial court. We do not find
Washington App. No. 15CA28                                                      12

an abuse of discretion in Appellant’s sentencing, based on the trial court’s

comments.

        {¶23} Appellant further argues the trial court’s sentence was

unconscionable, given its extremely harmful effect on Appellant’s

employment prospects. Appellant argues that the trial court’s harsh sentence

ultimately hurt appellant’s child by depriving Appellant of the means of

obtaining more lucrative employment and providing his child with greater

financial support. However, we find no evidence in the record to indicate

that this has in fact occurred, and thus, we find this argument speculative at

best.

        {¶24} Finally, Appellant also argues that although he was allowed to

speak at the sentencing hearing, the trial court disregarded his statements

and demonstrated prejudice against him, effectively denying him due

process. We note Appellant has not raised the due process issue as a

separate assignment of error as required by App.R. 16, and he attempts to

argue it within the context of his sole assignment of error that his sentence

was an abuse of discretion, in contravention of App.R. 12(A)(2).

Furthermore, constitutional arguments not presented in the trial court are

deemed to be waived and may not be raised for the first time on appeal.

State v. Markin, 10th Dist. Franklin No. 01AP-149 Ohio App.3d 274, 776
Washington App. No. 15CA28                                                    13

N.E.2d 1163, 2002-Ohio-4326, ¶ 52; Baker v. W. Carrollton, 64 Ohio St.3d

446, 448, 597 N.E.2d 74 (1992). As such, we decline to consider

Appellant’s due process argument.

      {¶25} Given that Appellant’s sentence is well-within the statutory

guidelines for a misdemeanor of the first degree, and absent evidence to the

contrary, we presume the trial court followed the sentencing guidelines set

forth in R.C. 2929.22, we find the trial court did not abuse its discretion with

regard to Appellant’s 35-day sentence. For the foregoing reasons, we find

no merit to Appellant’s sole assignment of error which is hereby overruled.

The judgment of the trial court is affirmed.

                                                 JUDGMENT AFFIRMED.
Washington App. No. 15CA28                                                      14

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court, Juvenile Division, to carry
this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment Only.
Harsha, J.: Dissents.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
