[Cite as State v. Nimmer, 2011-Ohio-1807.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95471




                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                                         ERIC NIMMER

                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-536479

        BEFORE: Kilbane, A.J., Blackmon, J., and Rocco, J.
      RELEASED AND JOURNALIZED: April 14, 2011

ATTORNEY FOR APPELLANT

Rick Ferrara
1424 East 25 Street
           ht




Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
MaRion D. Horhn
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

      {¶ 1} Defendant-appellant,   Eric   Nimmer   (Nimmer),   appeals   his

sentence. Finding no merit to the appeal, we affirm.

      {¶ 2} In April 2010, Nimmer was charged in Case No. CR-536479 with

breaking and entering, theft, and vandalism. Nimmer entered into a plea

agreement and pled guilty to breaking and entering. The remaining charges

were nolled. In December 2009, Nimmer pled guilty to burglary in Case No.

CR-529376, escape in Case No. CR-529334, breaking and entering in Case
No. CR-530617, and passing bad checks and theft in Case No. CR-530641. In

January 2010, the trial court sentenced him to five years in prison in Case

No. CR-529376, to be served concurrent with Case Nos. CR-529334,

CR-530617, and CR-530641.

      {¶ 3} In July 2010, at the sentencing hearing for Case No. CR-536479,

the trial court sentenced Nimmer to one year in prison, to be served

consecutive to his five-year sentence in Case No. CR-529376.

      {¶ 4} Nimmer now appeals, raising the following two assignments of

error for review.

      ASSIGNMENT OF ERROR ONE

      “The trial court abused its discretion by imposing a
      sentence   disproportionate with    those  previously
      imposed.”


      ASSIGNMENT OF ERROR TWO

      “The trial court acted contrary to law by imposing a
      consecutive sentence without considering sentencing
      factors under Ohio law.”

      {¶ 5} The Ohio Supreme Court has set forth the applicable standard of

appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶4:

      “In applying [State v. Foster, 109 Ohio St.3d 1,
      2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes,
      appellate courts must apply a two-step approach. First,
      they must examine the sentencing court’s compliance with
      all applicable rules and statutes in imposing the sentence
      to determine whether the sentence is clearly and
      convincingly contrary to law.          If this first prong is
      satisfied, the trial court’s decision shall be reviewed under
      an abuse-of-discretion standard.”1

      {¶ 6} Nimmer argues that the trial court acted contrary to law when it

failed to make the proper finding under R.C. 2929.14(E)(4) in light of the

United States Supreme Court’s rulings regarding judicial fact-finding in

Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, and

automatic statutory revival in Quong Ham Wah Co. v. Indus. Acc. Comm. of

California (1921), 255 U.S. 445, 41 S.Ct. 373, 65 L.Ed. 723.

      {¶ 7} He   claims that in State v. Hodge, 128 Ohio St.3d 1,

2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme Court revived all portions

of R.C. 2929.14 that were severed in Foster.      Thus, he contends that the

statutory findings required by R.C. 2929.14(E)(4) were revived by implication

since the Ohio legislature never repealed the statutory provisions that were

excised. We find Nimmer’s argument unpersuasive.

      {¶ 8} In Hodge, the Ohio Supreme Court explicitly held that Ice “does

not revive Ohio’s former consecutive-sentencing statutory provisions, R.C.

2929.14(E)(4) and 2929.41(A), which were held unconstitutional in [Foster].

Trial court judges are not obligated to engage in judicial fact-finding prior to


      1 We recognize Kalish is merely persuasive and not necessarily controlling
because it has no majority. The Supreme Court split over whether we review
sentences under an abuse-of-discretion standard in some instances.
imposing consecutive sentences unless the General Assembly enacts new

legislation requiring that findings be made.”    Id. at paragraphs two and

three of the syllabus.   Thus, the trial court in the instant case was not

obligated to make findings prior to imposing a consecutive sentence.

      {¶ 9} Nimmer further argues that his sentence in Case No. CR-536479

was contrary to law because it is disproportionate to the sentences imposed in

his other cases — Case Nos. CR-529334, CR-529376, CR-530617, and

CR-530641. In Case No. CR-529334, he was sentenced to one year in prison

for escape. In Case No. CR-529376, he was sentenced to five years in prison

for burglary.   In Case No. CR-530617, he was sentenced to one year for

breaking and entering, and in Case No. CR-530641, he was sentenced to one

year for passing bad checks and theft. The court ordered that the sentences

in these cases be served concurrent to each other for an aggregate of five

years in prison. Nimmer claims that his one-year sentence for breaking and

entering should have been concurrent to these cases because those sentences

were for similar crimes he committed within two months of the offense in the

instant case.

      {¶ 10} We note that “[c]onsistency in sentencing is achieved by weighing

the sentencing factors.”    State v. Dowell, Cuyahoga App. No. 88864,

2007-Ohio-5534, ¶8, citing State v. Georgakopoulos, Cuyahoga App. No.

81934, 2003-Ohio-4341. As an appellate court, we are not required to decide
whether the lower court “‘imposed a sentence in lockstep with others, but

whether the sentence is so unusual as to be outside the mainstream of local

judicial practice.   Although the offense[s] may be similar, distinguishing

factors may justify dissimilar treatment.’” State v. Rabel, Cuyahoga App.

No. 91280, 2009-Ohio-350, ¶15, quoting State v. Dawson, Cuyahoga App. No.

86417, 2006-Ohio-1083.

      {¶ 11} In the instant case, there is nothing in the record to demonstrate

that Nimmer’s sentence is “outside the mainstream of local judicial practice.”

His sentence of one year is the same as the one year the court imposed in

Case No. CR-530617 for breaking and entering. While the crimes may have

been committed within two months of each other, the State indicated that

Nimmer became a suspect in the instant case when a CODIS hit linked him

to DNA found at the scene of the incident. Moreover, his one-year sentence

is within the permissible statutory range for a fifth degree felony. On these

facts, we cannot conclude that his sentence is contrary to law.

      {¶ 12} Having satisfied step one, we next consider whether the trial

court abused its discretion. An ‘“abuse of discretion’ connotes more than an

error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.’” Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151,

157, 404 N.E.2d 144.
      {¶ 13} Here, the trial court indicated that it imposed a consecutive

sentence because Nimmer is a danger to the community and he has not

complied with his mental health treatment. The court further indicated that

Nimmer’s criminal history spans almost 20 years. Nimmer has “32 cycles” of

criminal history and “nine cycles” of incarceration. The trial court also stated

in the sentencing journal entry that it had considered all factors of law and

found that prison was consistent with the purposes of R.C. 2929.11. Thus,

there is nothing in the record to suggest that the trial court’s decision was

unreasonable, arbitrary, or unconscionable.

      {¶ 14} Accordingly, the first and second assignments of error are

overruled.

      {¶ 15} 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 out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
PATRICIA A. BLACKMON, J., and
KENNETH A. ROCCO, J., CONCUR
