[Cite as State v. D'Amico, 2015-Ohio-278.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.       27258

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
THOMAS J. D'AMICO                                    COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 13 04 0997

                                 DECISION AND JOURNAL ENTRY

Dated: January 28, 2015



        BELFANCE, Presiding Judge.

        {¶1}     Thomas D’Amico appeals his sentence imposed by the Summit County Court of

Common Pleas. For the reasons set forth below, we affirm.

                                                I.

        {¶2}     On March 17, 2013, Mr. D’Amico ran up behind Richard Fugo, who was the

fiancée of Mr. D’Amico’s former wife, M.S., broke a beer bottle over Mr. Fugo’s head, and

attempted to stab him in the neck with it. As a result of this attack, Mr. D’Amico was indicted

on charges of felonious assault, menacing by stalking, aggravated menacing, and violating a

protection order. Mr. D’Amico pleaded guilty to felonious assault and violating a protection

order, and the remaining counts were dismissed. The trial court sentenced Mr. D’Amico to

seven years in prison.

        {¶3}     Mr. D’Amico has appealed, raising a single assignment of error for our review.
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                                                 II.

                                     ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN CONSIDERING UNCHARGED CONDUCT
       IN SENTENCING THE DEFENDANT.

       {¶4}       Mr. D’Amico argues that his sentence was contrary to law because the trial court

considered conduct of which he had never been charged or convicted. We disagree.

       {¶5}       This Court utilizes the test set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, when reviewing criminal sentences. See State v. Roper, 9th Dist. Summit No.

27025, 2014-Ohio-4786, ¶ 30.

       First, [we] 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 in imposing the term of imprisonment is reviewed under the
       abuse-of-discretion standard.

Kalish at ¶ 26.

       {¶6}       Mr. D’Amico argues that his sentence was contrary to law because the trial court

considered uncharged conduct in sentencing him; specifically, Mr. D’Amico points to statements

made by his former wife about when he allegedly assaulted her. However, “Ohio law is clear

that [u]nindicted acts * * * can be considered in sentencing without resulting in error when they

are not the sole basis for the sentence.” (Internal quotations and citations omitted.) (Alterations

sic.) State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 7. Sentencing

courts have long been permitted to “‘exercise a wide discretion in the sources and types of

evidence used to assist [it] in determining the kind and extent of punishment to be imposed

within limits fixed by law.’” State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, ¶ 14 (2d

Dist.), quoting Williams v. New York, 337 U.S. 241, 246 (1949). “The evidence the court may

consider is not confined to the evidence that strictly relates to the conviction offense because the
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court is no longer concerned * * * with the narrow issue of guilt.” (Citation omitted.) Bowser at

¶ 14.

        {¶7}   “Likewise, R.C. 2929.19 grants broad discretion to the trial court to consider any

information relevant to the imposition of a sentence.” State v. Asefi, 9th Dist. Summit No.

26931, 2014-Ohio-2510, ¶ 8. R.C. 2929.19(A) allows the state and the defendant to “present

information relevant to the imposition of sentence in the case[,]” and R.C. 2929.19(B) requires

the trial court to “consider the record, any information presented at the hearing by any person

pursuant to division (A) of this section, and, if one was prepared, the presentence investigation

report * * * and any victim impact statement * * *.” (Emphasis added.). “In other words, R.C.

2929.19 sets out a procedure less formal than an evidentiary hearing for interested parties to

submit arguments and information to the trial court.” Asefi at ¶ 8.

        {¶8}   We initially note that the trial court considered a video of the incident and the

presentence investigation, neither of which are in the appellate record. See Asefi at ¶ 14 (When

the sentencing court considers a presentence investigation report, an appellate court must

presume regularity if the report is not included in the appellate record.); State v. Spurlock, 9th

Dist. Lorain No. 13CA010354, 2013-Ohio-5369, ¶ 8 (“[I]t is the duty of the appellant to ensure

that the record on appeal is complete.”) (Internal quotations and citations omitted.). The trial

court also heard statements from M.S., Mr. Fugo, Mr. Fugo’s mother, and Mr. D’Amico. Mr.

Fugo told the court that Mr. D’Amico attacked him from behind without provocation. According

to Mr. Fugo, the incident “changed [his] life. It is very hard for [him] to go out without being

concerned * * *.” He missed work at the business he owns and is now “very paranoid to be in

public sometimes.” M.S. told the court about numerous incidents of alleged abuse by Mr.

D’Amico before she obtained a protection order. When Mr. D’Amico spoke, he denied the
                                                  4


incidents of abuse and offered information pertinent to the court’s consideration of the

sentencing factors including mitigation.

       {¶9}    Prior to sentencing Mr. D’Amico, the trial court specifically considered many of

the sentencing factors set forth in R.C. 2929.11 and 2929.12 at the hearing.               During its

discussion, the trial court stated that “the victims of [Mr. D’Amico’s] offenses have suffered

serious physical and psychological harm as a result * * *.” Mr. D’Amico suggests that this

statement is indicative of the trial court considering his alleged assaults on his former wife.

However, read in context, it is more likely that the court was actually summarizing the harm

caused by Mr. D’Amico — i.e., the serious physical harm to Mr. Fugo and the serious

psychological harm to Mr. Fugo and M.S. — rather than saying that both suffered serious

physical harm. Regardless, even accepting Mr. D’Amico’s interpretation, we cannot conclude

that this single statement by the trial court indicates that it based its sentencing decision solely on

the alleged assault on his former wife, especially given Mr. Fugo’s statement to the court and the

court’s lengthy discussion about other factors on the record, including Mr. D’Amico’s previous

criminal history. Accord Clemons, 2014-Ohio-4248, at ¶ 7.

       {¶10} Furthermore, it is clear from the record that the focus of the hearing was on the

attack upon Mr. Fugo, not the alleged abuse described by M.S. M.S.’s statements about the

abuse were relayed as she explained the history of her past relationship with Mr. D’Amico and

helped provide context concerning the attack on Mr. Fugo as well as the violation of the

protection order. In any case, given the incomplete record in this case, we must presume

regularity in the sentencing proceedings. See Asefi, 2014-Ohio-2510, at ¶ 14.

       {¶11} Accordingly, Mr. D’Amico’s assignment of error is overruled.
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                                                III.

       {¶12} In light of the foregoing, the judgment of the Summit County Court of Common

Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



CARR, J.
MOORE, J.
CONCUR.
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APPEARANCES:

RUSSELL S. BENSING, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RACHEL M. RICHARDSON, Assistant
Prosecuting Attorney, for Appellee.
