[Cite as State v. Noggy, 2018-Ohio-2350.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2017-L-156
        - vs -                                   :

JAMES R. NOGGY,                                  :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000056.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, James R. Noggy, appeals from the Judgment Entry

of Sentence of the Lake County Court of Common Pleas, ordering him to serve a term

of three years in prison for Attempted Felonious Assault. The issue to be determined in

this case is whether such a sentence is contrary to law when the court determined that

multiple R.C. 2929.12(B) factors applied, indicating the defendant’s conduct in

committing the offense was more serious than conduct typically constituting the offense.
For the following reasons, we affirm the judgment of the lower court.

      {¶2}   On June 16, 2017, Noggy was indicted by the Lake County Grand Jury for

Felonious Assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1).

      {¶3}   At a September 7, 2017 plea hearing, Noggy entered a plea of guilty to the

lesser included offense of Attempted Felonious Assault, a felony of the third degree, in

violation of R.C. 2923.02(A) and 2903.11(A)(1). Pursuant to the State, it would have

proven at trial that Noggy assaulted his former girlfriend, Kelly Hillier, by punching and

striking her. Hillier suffered a subdural hematoma (bleeding between the skull and

brain), concussion, and a break in her jaw. Noggy admitted to pushing Hillier and

causing her to fall over the couch, but denied punching her.           The guilty plea was

accepted by the trial court and memorialized in a September 8, 2017 Judgment Entry.

      {¶4}   A sentencing hearing was held on October 19, 2017. Noggy’s counsel

argued that the case resulted from “a very toxic relationship,” explained that Noggy

“takes responsibility for his actions here,” and that he is moving forward in a “positive

direction.” He described that Noggy has been sober and is employed and would pay

restitution. Noggy stated that he was “very sorry for what [he] did,” explaining that he

hurt Hillier when he pushed her, although he “didn’t mean to do it.”

      {¶5}   The State recommended a sentence of four years of community control

and noted the need for restitution given the extensive amount of medical treatment

required. Several family members, including Hillier’s ex-husband, two children, and her

father, noted a history of violence by Noggy against Hillier during their relationship.

They also opined that this had a negative impact on Hillier, causing her to suffer fear

and anxiety. Kelly Hillier stated that she has had nightmares since the assault and that

it had been “the worst 10 months of [her] life.” She believed she would die when Noggy

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assaulted her.

       {¶6}   The court stated that it had reviewed the presentence investigation report

(PSI) and considered the purposes and principles of sentencing. It found that the victim

suffered serious physical, psychological, and economic harm, her “mental condition”

was exacerbated by the assault, the defendant’s relationship with her facilitated the

offense, and he “appeared to be motivated by prejudice against her gender.” It found

no genuine remorse was expressed. The court ordered Noggy to serve a term of three

years in prison and pay restitution. The sentence was memorialized in an October 23,

2017 Judgment Entry of Sentence.

       {¶7}   Noggy timely appeals and raises the following assignment of error:

       {¶8}   “The trial court erred by sentencing the defendant-appellant to a

maximum, thirty-six-month prison term.”

       {¶9}   The standard of review for felony sentences is provided by R.C.

2953.08(G)(2).   State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 9-23. “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.”      R.C. 2953.08(G)(2).       “Applying the plain language of R.C.

2953.08(G)(2), * * * an appellate court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.” Marcum at ¶ 1.

       {¶10} Noggy argues that the trial court erred in sentencing him to a prison term

of three years since its R.C. 2929.12 findings were unsupported by the evidence and

were contrary to law.

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       {¶11} R.C. 2929.12 does not require judicial fact-finding. State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42; State v. Sprott, 11th Dist.

Ashtabula No. 2016-A-0066, 2017-Ohio-1508, ¶ 11. Rather, “in sentencing a defendant

for a felony, ‘a court is merely required to “consider” the purposes and principles of

sentencing in R.C. 2929.11 and the statutory * * * factors set forth in R.C. 2929.12.’”

State v. Brown, 11th Dist. Lake No. 2014-L-075, 2015-Ohio-2897, ¶ 34, quoting State v.

Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-3013, ¶ 44. “The trial court satisfies

its obligation to consider the seriousness and recidivism factors in R.C. 2929.12 by

stating that it considered them.” Brown at ¶ 34. “[T]he trial court is not obligated * * * to

give any particular weight or consideration to any [R.C. 2929.12] sentencing factor.”

(Citation omitted.) State v. Pishner, 11th Dist. Portage No. 2017-P-0004, 2017-Ohio-

8689, ¶ 20.

       {¶12} Under R.C. 2929.12(B) and (C), the trial court must consider factors

relating to whether “the offender’s conduct is more serious than conduct normally

constituting the offense,” or “less serious than conduct normally constituting the

offense.” The court must also consider factors relating to whether the offender is “likely

to commit future crimes.” R.C. 2929.12(D) and (E).

       {¶13} At the sentencing hearing and in its sentencing entry, the trial court stated

it had considered the seriousness and recidivism factors in R.C. 2929.12. It noted the

existence of multiple factors making the offense more serious, including that Noggy and

the victim had previously been in a relationship and the serious physical and

psychological harm caused, which was extensively discussed by several individuals at

sentencing. R.C. 2929.12(B)(2) and (6). The court found no factors making the harm

less serious. The court also considered Noggy’s prior OVI offenses as well as an

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assault conviction which related to threatening and/or assaulting a girlfriend, and found

no factors making recidivism less likely.

         {¶14} Noggy argues that the trial court erred in finding that none of the “less

serious” factors applied. Specifically, he contends that the victim induced or facilitated

the offense, he acted under strong provocation, he did not cause or expect to cause

physical harm, and that there are substantial grounds to mitigate his conduct. R.C.

2929.12(C)(1)-(4). The application of these factors, however, all depend upon the trial

court accepting Noggy’s description of the crime, including his assertion that Hillier

attacked him, he only pushed her, and she fell over the couch.           However, this is

contrary to the version of events outlined by the State, Hillier and others at the plea and

sentencing hearings describing that Noggy punched her and repeatedly beat her.

Photographs showed serious injuries, described as a subdermal hematoma,

concussion, and broken jaw, which it was reasonable to conclude did not result from

being pushed and falling over a couch. It is evident that the court declined to accept

Noggy’s version of the events, leading to its determination that these factors did not

apply.

         {¶15} Noggy also argues that the court inaccurately found that he denied having

a drug and alcohol problem although he requested treatment. The trial court’s finding

appears to be based on the fact that Noggy was dishonest during a psychological

assessment and had claimed he had been sober for a year and a half, a fact Noggy

admitted was untrue at the sentencing hearing. Thus, the court’s finding as to this issue

was supported by the record.

         {¶16} Finally, Noggy contends that the court erred in finding he lacked remorse,

given that he apologized, accepted responsibility, expressed a willingness to pay

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restitution, and took steps to move forward in a “positive direction.” It is evident that the

court did not find this expression of remorse to be genuine, especially given that, at the

plea hearing and sentencing hearing, Noggy downplayed his conduct, stating only that

he pushed Hillier, causing her to fall over a couch.          As noted above, given the

contrasting facts presented by the State, the court was within its discretion to find a lack

of remorse. “[A] reviewing court must defer to the trial court as to whether a defendant’s

remarks are indicative of a genuine remorse because it is in the best position to make

that determination.” (Citation omitted.) State v. Davis, 11th Dist. Lake No. 2010-L-148,

2011-Ohio-5435, ¶ 15. Noggy presently having a job and a girlfriend does not negate

the factors the court found weighed against him.

       {¶17} Based on a review of the record and as described above, the trial court

considered the necessary factors under R.C. 2929.12 and we cannot find by clear and

convincing evidence that the record does not support the trial court’s findings or that the

sentence is otherwise contrary to law.

       {¶18} The sole assignment of error is without merit.

       {¶19} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, sentencing Noggy to a term of three years in prison, is affirmed. Costs

to be taxed against appellant.


THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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