[Cite as State v. Royster, 2019-Ohio-2367.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                     Court of Appeals No. WD-18-036

        Appellee                                  Trial Court No. 2017CR0321

v.

Andrew L. Royster                                 DECISION AND JUDGMENT

        Appellant                                 Decided: June 14, 2019

                                              *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a May 4, 2018 judgment of the Wood County Court

of Common Pleas, sentencing appellant to a previously suspended 180-day term of

imprisonment in connection to appellant’s conviction on one count of domestic violence,

in violation of R.C. 2919.25, a misdemeanor of the first degree.
         {¶ 2} We note that the term of imprisonment had initially been suspended and

appellant placed on probation. However, a petition for revocation was filed when the

probation department discovered that appellant was charged with drug trafficking in

Lucas County less than a month after being placed on probation. Appellant failed to

notify his probation officer of the pending drug offense and failed to appear at probation

appointments. These events led to the disputed probation violation sentence against

appellant. For the reasons set forth below, this court affirms the judgment of the trial

court.

         {¶ 3} Appellant, Andrew Royster, sets forth the following assignment of error:

               The trial court abused its discretion and committed error by not

         sentencing appellant in accordance with R.C. 2929.21 and R.C. 2929.22.

         {¶ 4} The following undisputed facts are relevant to this appeal. On July 20,

2017, appellant was indicted on one count of domestic violence, in violation of R.C.

2919.25, a misdemeanor of the first degree, and one count of attempted felonious assault,

in violation of R.C. 2923.02, a felony of the third degree.

         {¶ 5} These charges stemmed from a June 19, 2017 incident in which the

Perrysburg Township Police Department was summoned to appellant’s apartment

following an incident in which appellant assaulted his live-in girlfriend. The assault

occurred during an argument between the parties concerning appellant’s pattern of

excessive alcohol consumption.




2.
       {¶ 6} On November 28, 2017, pursuant to a negotiated plea agreement, appellant

pled guilty to the misdemeanor domestic violence offense. In exchange, the remaining

felony offense was dismissed. Appellant was sentenced to a suspended 180-day term of

imprisonment, a three-year term of probation, anger management classes, and AA

meeting attendance as deemed necessary by the probation department.

       {¶ 7} On December 20, 2017, less than a month after being placed on probation,

appellant was charged with drug trafficking in the Toledo Municipal Court. On

February 14, 2018, appellant pled guilty to an amended drug possession offense.

Appellant failed to notify the probation department of the new criminal charge filed

against him, in violation of the terms of probation.

       {¶ 8} On February 21, 2018, the probation department filed a petition for

revocation of probation against appellant based upon both appellant’s failure to notify the

probation department of the new criminal charge, as well as appellant’s failure to appear

at probation appointments in Wood County. A probation violation hearing was

scheduled for April 6, 2018. Appellant failed to appear, resulting in the issuance of a

statewide warrant for appellant’s arrest.

       {¶ 9} On May 4, 2018, appellant appeared before the trial court and stipulated to

the above-described probation violations. Appellant was sentenced to serve the

previously suspended 180-day term of imprisonment, with credit granted for time served.

This appeal ensued.




3.
       {¶ 10} In the sole assignment of error, appellant maintains that the May 4, 2018

probation violation sentence was unlawful in breach of R.C. 2929.21 and 2929.22, the

directives and purposes of sentencing. We do not concur.

       {¶ 11} Specifically, appellant suggests that the imposition of the previously

suspended sentence following appellant’s probation violations was somehow unlawful

based upon appellant’s perception that the trial court failed to adequately consider

mitigating factors.

       {¶ 12} In support of this position, appellant notes that he possesses a degree in

culinary arts, was employed as a cook, had obtained a valid driver’s license, and provides

child support to three children born of a prior relationship.

       {¶ 13} Appellant argues, “In not crediting appellant with any of the positives he

had accomplished by imposing a less than maximum sentence * * * the trial court abused

its discretion and erred to the prejudice of appellant.” Notably, appellant simultaneously

concedes that the disputed sentence was not, “[O]utside the maximum allowable sentence

under the controlling statute, R.C. 2929.24(A)(1).”

       {¶ 14} Appellate court review of a disputed misdemeanor sentence is conducted

pursuant to the abuse of discretion standard of review. In order to demonstrate an abuse

of discretion, it must be established that the disputed trial court action was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).




4.
       {¶ 15} When a disputed misdemeanor sentence falls within the permissible

statutory limits [as conceded by appellant] the reviewing court must presume the trial

court properly followed the statutes absent convincing evidence to the contrary. State v.

Cook, 6th Dist. Lucas No. L-15-1178. 2016-Ohio-2975, ¶ 18. Accordingly, the

presumption of statutory compliance stands barring the record of evidence clearly

demonstrating otherwise. State v. Hudson, 7th Dist. Mahoning No. 15-MA-134, 2017-

Ohio-645, ¶ 37.

       {¶ 16} We have carefully reviewed and considered this matter in order to

determine the propriety of the disputed sentence. The record reflects that less than a

month after being placed on probation on the underlying misdemeanor offense, appellant

committed a drug offense in another county, failed to disclose the new offense to his

probation officer, and failed to appear at the probation appointments. Appellant then

failed to appear at the resulting probation violation hearing. This necessitated issuance of

a statewide warrant for appellant’s arrest.

       {¶ 17} Given these facts and circumstances, we find that the trial court’s

imposition of the previously suspended 180-day sentence was not unreasonable, arbitrary,

or unconscionable.

       {¶ 18} Based upon the foregoing, we find appellant’s assignment of error not well-

taken. The judgment of the Wood County Court of Common Pleas is hereby affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                        Judgment affirmed.




5.
                                                               State v. Royster
                                                               C.A. No. WD-18-036




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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