[Cite as State v. Nichter, 2015-Ohio-3489.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                       :

                 Plaintiff-Appellant,                :
                                                                          No. 15AP-40
v.                                                   :               (C.P.C. No. 10CR12-7383)

Daniel J. Nichter,                                   :              (REGULAR CALENDAR)

                 Defendant-Appellee.                 :



                                              D E C I S I O N

                                      Rendered on August 27, 2015


                 Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
                 appellant.

                 Meeks and Thomas Co., L.P.A., David H. Thomas and
                 Kathryn S. Wallrabenstein, for appellee.

                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the
Franklin County Court of Common Pleas granting judicial release to defendant-appellee,
Daniel J. Nichter. For the following reasons, we reverse that judgment and remand the
matter for further proceedings.
I. Factual and Procedural Background
        {¶ 2} In 2011, Nichter pled guilty to and was sentenced for three counts of
second-degree felony identity fraud. In 2012, Nichter filed a motion for judicial release.
The trial court denied the motion but advised him that it would reconsider judicial release
after he had served one year of his sentence. See State v. Nichter, 10th Dist. No. 14AP-34,
2014-Ohio-4226, ¶ 3. Accordingly, Nichter filed another motion for judicial release in
No. 15AP-40                                                                                2

2013. This time, the trial court granted him judicial release. The state appealed and we
reversed, concluding that the trial court failed to comply with the requirements of R.C.
2929.20 in granting judicial release. Id. at ¶ 12-13. On remand, the trial court again
granted judicial release.
II. The Appeal
       {¶ 3} The state appeals again, assigning the following errors:
              [1.] The trial court erred and abused its discretion in failing to
              make both of the findings needed to justify the judicial release
              of a second-degree felony.

              [2.] The trial court erred and abused its discretion in granting
              judicial release on three second-degree felonies based on an
              assessment that "this is not the most serious form of this
              offense."

              [3.] The trial court erred in granting judicial release in the
              absence of record support for the necessary finding related to
              seriousness.

       A. The Grant of Judicial Release
       {¶ 4} We collectively address the state's first and second assignments of error in
which the state contends the trial court erroneously granted judicial release. We agree.
       {¶ 5} The state, pursuant to R.C. 2953.08(B)(3), may appeal as a matter of right a
decision to grant judicial release to an offender sentenced for a felony of the first or
second degree such as Nichter. The applicable standard of review is whether the record
clearly and convincingly supports the trial court's findings made pursuant to R.C.
2929.20(J) or whether the decision is otherwise contrary to law. R.C. 2953.08(G)(2).
State v. Williams, 10th Dist. No. 10AP-55, 2010-Ohio-4519, ¶ 9, citing State v. Costlow,
8th Dist. No. 89501, 2008-Ohio-1097, ¶ 9-13.
       {¶ 6} R.C. 2929.20 governs judicial release. Because Nichter was sentenced for a
second-degree felony, R.C. 2929.20(J) applies, which provides:
              (J)(1) A court shall not grant a judicial release under this
              section to an eligible offender who is imprisoned for a felony
              of the first or second degree * * * unless the court, with
              reference to factors under section 2929.12 of the Revised
              Code, finds both of the following:
No. 15AP-40                                                                                3

              (a) That a sanction other than a prison term would
              adequately punish the offender and protect the public from
              future criminal violations by the eligible offender because the
              applicable factors indicating a lesser likelihood of recidivism
              outweigh the applicable factors indicating a greater likelihood
              of recidivism;

              (b) That a sanction other than a prison term would not
              demean the seriousness of the offense because factors
              indicating that the eligible offender's conduct in committing
              the offense was less serious than conduct normally
              constituting the offense outweigh factors indicating that the
              eligible offender's conduct was more serious than conduct
              normally constituting the offense.

              (2) A court that grants a judicial release to an eligible offender
              under division (J)(1) of this section shall specify on the record
              both findings required in that division and also shall list all
              the factors described in that division that were presented at
              the hearing.

       {¶ 7} Accordingly, before a trial court may grant judicial release, the court must
make the findings contained in R.C. 2929.20(J) with reference to factors in R.C. 2929.12,
specify those findings on the record, and list the relevant factors presented at the hearing.
State v. Walker, 10th Dist. No. 14AP-181, 2014-Ohio-4586, ¶ 8, citing State v. Riley, 10th
Dist. No. 00AP-599 (Oct. 31, 2000). The state argues that the trial court did not follow
these statutory procedures. We agree.
       {¶ 8} At Nichter's hearing, the trial court first read verbatim the language of R.C.
2929.20(J)(1). It then noted certain applicable factors in R.C. 2929.12(E), which provides
factors a trial court shall consider indicating an offender is not likely to commit future
crimes. The trial court found that those factors "are relevant in determining that Mr.
Nichter is eligible for judicial release in this matter." (Tr. 5.) The trial court then
concluded that "consistent with 2929.20(J)(1)(a) and (b), as referenced or supported by
2929.12 Subsection (E), the court will find that Mr. Nichter's motion does have merit. It
will grant the motion for judicial release." (Tr. 5.)
       {¶ 9} Although the trial court read and acknowledged the required statutory
findings, the trial court failed to actually make the findings required by R.C.
2929.20(J)(1). Walker at ¶ 9. Additionally, the trial court only considered the R.C.
No. 15AP-40                                                                                4

2929.12(E) factors indicating that Nichter was less likely to reoffend. It did not consider
the factors in R.C. 2929.12(D), which address whether the offender was more likely to
reoffend, nor did it consider the factors in R.C. 2929.12(B) and (C), which address the
seriousness of the offender's conduct. This court has previously noted that, in addition to
the findings required under R.C. 2929.20(J)(1), the statute " 'obligates the trial court to
justify its findings with an analysis of the relevant R.C. 2929.12 factors.' " State v. Orms,
10th Dist. No. 13AP-698, 2014-Ohio-2732, ¶ 10, quoting Williams at ¶ 11. Without the
R.C. 2929.20(J) findings and the analysis of all the relevant R.C. 2929.12 factors, a trial
court cannot grant judicial release. Nichter at ¶ 12-13 (reversing judicial release because
trial court failed to make R.C. 2929.20(J) findings and did not consider all the R.C.
2929.12 factors); Orms at ¶ 11.
       {¶ 10} Additionally, the trial court noted that Nichter's conduct "is not the most
serious form of this offense." (Tr. 10.) This is not the proper standard a trial court must
apply in considering judicial release. Pursuant to R.C. 2929.20(J)(1)(b), a trial court must
determine whether judicial release would demean the seriousness of the offender's
offense. To make this determination, the trial court must consider whether the offender's
conduct in committing the offense was more or less serious than conduct normally
constituting the offense. We assume this is the consideration the trial court attempted to
address with its language. The trial court's conclusion that Nichter did not commit the
most serious form of identity theft does not satisfy this statutory consideration. See
Walker at ¶ 10.
       {¶ 11} Because the trial court failed to comply with the requirements of R.C.
2929.20(J), its decision to grant judicial release is contrary to law. Accordingly, we
sustain the state's first and second assignments of error.
       B. The State's Third Assignment of Error
       {¶ 12} Lastly, the state requests this court order the trial court to deny Nichter's
request for judicial release because the record does not support the findings that must be
made for him to receive judicial release. We deny the state's request and remand the
matter for the trial court to comply with R.C. 2929.20 in deciding whether to grant or
deny Nichter's motion for judicial release. Walker at ¶ 13, citing State v. Day, 10th Dist.
No. 09AP-40, 2010-Ohio-125, ¶ 14 (noting that this court consistently remands cases
No. 15AP-40                                                                                 5

when judicial release granted without proper findings for trial court to comply with
statutory requirements). Accordingly, we overrule the state's third assignment of error.
III. Conclusion
      {¶ 13} We sustain the state's first and second assignments of error and overrule its
third assignment of error. Accordingly, we reverse the judgment of the Franklin County
Court of Common Pleas and remand the matter for further proceedings that comply with
R.C. 2929.20(J).
                                                                    Judgment reversed;
                                                        cause remanded with instructions.

                                  BROWN, P.J., concurs.
                                  HORTON, J., dissents.

HORTON, J., dissenting.
      {¶ 14} I respectfully dissent. While the trial court's reasoning is paltry, I believe it
satisfies the requirements of R.C. 2929.20 and 2929.12. I would affirm the judgment of
the Franklin County Court of Common Pleas.
