[Cite as State v. Neidemire, 2011-Ohio-1869.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-10-36

        v.

KELLI S. NEIDEMIRE,                                       OPINION

        DEFENDANT-APPELLANT.



                Appeal from Auglaize County Common Pleas Court
                          Trial Court No. 2010-CR-100

                                      Judgment Affirmed

                             Date of Decision: April 18, 2011




APPEARANCES:

        Andrew B. King for Appellant

        Edwin A. Pierce for Appellee
Case No. 2-10-36



WILLAMOWSKI, J.

      {¶1} Defendant-appellant Kelli S. Neidemire (“Niedemire”) brings this

appeal from the judgment of the Court of Common Pleas of Auglaize County

sentencing her to five years in prison.       For the reasons set forth below, the

judgment is affirmed.

      {¶2} Neidemire was employed as the office manager for Thuman Trucking,

Inc. from 1998 until June 21, 2010.       During the course of her employment,

Neidemire took company funds for her personal use. Neidemire admitted to the

theft and agreed to pay restitution in the amount of $450,000.00. On August 18,

2010, the State filed a bill of information alleging that Neidemire committed a

theft in violation of R.C. 2913.02(A)(3). On August 19, 2010, Neidemire entered

a guilty plea pursuant to a negotiated plea agreement. A sentencing hearing was

held on October 20, 2010. The trial court sentenced Neidemire to the maximum

sentence of five years in prison. Neidemire appeals from this sentence and raises

the following assignment of error.

      The trial court erred in imposing a non-minimum sentence of
      imprisonment and by not imposing community control with the
      requirement of treatment.

      {¶3} In the sole assignment of error, Neidemire claims that the trial court

erred in imposing the maximum sentence and by not imposing community control.

Trial courts have discretion to impose a prison sentence within the statutory range

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Case No. 2-10-36



for the offense from which the conviction stems. State v. Foster, 109 Ohio St.3d

1, 2006-Ohio-856, 845 N.E.2d 470. Neidemire claims that the trial court abused

this discretion by misapplying the factors set forth in R.C. 2929.12(B).                             An

assignment of error challenging imposition of a prison sentence rather than

community control pursuant to R.C. 2929.14 will only be sustained if appellant

shows that the judgment was clearly and convincingly contrary to law. State v.

Hubbard, 2d Dist. No. 23363, 2010-Ohio-3910, ¶26. However, a review of the

application of the factors in R.C. 2929.12(B) is conducted under an abuse of

discretion review.1 State v. Miler, 3d Dist. No. 11-10-10, 2011-Ohio-1304.

        {¶4} Neidemire argues that the trial court abused its discretion because she

confessed to the crime, showed remorse, agreed to make restitution, and had a

minimal criminal record. Thus, she claims that the factors in mitigation of the

offense outweighed the factors making it more serious and she should have

received community control rather than the maximum prison sentence. However,

a review of the record indicates that the trial court did consider these factors. The

trial court also considered the facts that Neidemire had abused a position of trust in

committing her crime, that the crime had continued over several years, that


1
    In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, Justices O’Connor, Moyer,
O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this position, although the first
three would use both standards of review in all cases. However, there was no majority opinion requiring a
two part review.


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Case No. 2-10-36



Neidemire admitted that she would have continued her theft if she hadn’t been

caught, that Neidemire had expressed no remorse until she was actually caught,

and that as of the date of the sentencing hearing, Neidemire had not made any

restitution to the victim. Given this evidence, the trial court did not abuse its

discretion in applying the factors set forth in R.C. 2929.12(B). The five year

imprisonment sentence given to Neidemire was within the statutory range for the

third degree felony of which Neidemire was convicted. Therefore, the sentence

entered pursuant to R.C. 2929.14 is not clearly and convincingly contrary to law.

The assignment of error is overruled.

       {¶5} The judgment of the Court of Common Pleas of Auglaize County is

affirmed.

                                                             Judgment Affirmed

SHAW, J. and PRESTON, J., concur in Judgment Only.

/jlr




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