[Cite as State v. Hale, 2017-Ohio-1079.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. Willliam B. Hoffman, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. CT2016-0034
NICHOLAS A. HALE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2016-0005


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         March 23, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

D. MICHAEL HADDOX                              DAVID A. SAMS
Prosecuting Attorney                           Box 40
Muskingum County, Ohio                         W. Jefferson, Ohio 43162

By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2016-0034                                                      2

Hoffman, J.



       {¶1}   Defendant-appellant Nicholas Hale appeals his sentence entered by the

Muskingum County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                  STATEMENT OF THE CASE1.

       {¶2}   On June 21, 2016, Appellant was found guilty of one count of assault on a

corrections officer, a fifth degree felony, for conduct occurring while in jail under a multi-

count indictment.2 On June 22, 2016, the trial court sentenced Appellant to the maximum

twelve month prison term.

       {¶3}   Appellant appeals, assigning as error:

       {¶4}   I. THE PROSECUTION ERRED TO APPELLANT’S PREJUDICE DURING

SENTENCING.

       {¶5}   In the sole assignment of error, Appellant asserts the prosecutor engaged

in misconduct by making a number of biblical references during the sentencing hearing.

       {¶6}   In support of his argument, Appellant cites State v. Arnett, 88 Ohio St.3d

208, 2000-Ohio-0302. It is clear religion may not be the sole basis of action against a

defendant. U.S. v. Bakker (4th Cir. 1991), 925 F 2d 728. In Arnett, the Ohio Supreme

Court held if the sentence is supported by law, then the use of scripture by the trial court

does not violate a defendant’s due process rights.

       {¶7}   At the sentencing hearing, the prosecutor stated on the record prior to

sentencing,


1
 A rendition of the underlying fact is unnecessary for resolution of this appeal.
2
 Appellant was separately indicted for one count of vandalism, which conduct also
occurred while Appellant was held in jail.
Muskingum County, Case No. CT2016-0034                                                   3




            He then got on the stand and tried to hide behind a fig leaf of Jesus’

     sandals causing him to trip. And despite that sermon, the jury found him

     guilty. The state believes he needs to go to prison where he can work in the

     kitchen on the loaves and dishes [fishes?].

            In this particular circumstance I’m willing to cast the first stone.

            ***

            And he literally was turning water into whine [wine?].

            That leaves the question WWJD, what will the judge do? And in this

     case, despite Mr. Hale’s hopes, I don’t think that his cell will be opening on

     the third day. There is no way that his sins are going to be washed away in

     this circumstance. So, ultimately, after he made at least three denials here

     on the stand, the jury was able to see through this. I’m not asking that he

     be crucified or flagellated. No one is going to be casting lots for his clothing,

     but he has got to pay for his crimes. And anything less than maximum

     sentence would be like the three kings leaving out the frankincense.

     Trial Tr. at 2-3.



     {¶8}   In sentencing, the trial court stated on the record,



            THE COURT: The court, of course, heard the trial and the jury did

     find you guilty of the offense of assault upon a corrections officer. The court

     also took a brief look at your history. You have at least four prior felony
Muskingum County, Case No. CT2016-0034                                                      4


       convictions. You were in the jail based upon a numerous count indictment,

       which included nine felonies of the first degree, two felonies of the second

       degree, gun specifications, weapon under disability, and other charges.

       Since you have been in the jail, this is the first of two indictments against

       you for incidents in the jail. This one being assault on a corrections officer.

       The other one being vandalism.

              ***

              Based upon that, the court finds that you performed this offense while

       being incarcerated. The court finds that you have prior convictions. The

       court finds that you did commit this offense against a correction officer in

       the performance of his duties. Therefore, the court will impose a 12-month

       sentence in this case. ***

       Sentencing Tr. at 5-6.



       {¶9}   In sentencing Appellant, the trial court considered his four prior convictions,

and Appellant having committed the offense while jailed on a numerous count indictment,

including nine first degree felonies, two second degree felonies, gun specifications,

weapons under disability, and other charges. Appellant committed the offense against a

corrections officer while in the performance of his duties. In addition, Appellant was found

in contempt during the proceedings before the trial court.

       {¶10} Appellant concedes nothing in the record indicates the trial court relied upon

the prosecutor’s remarks. More significantly, the trial court did not refer to religion in any

manner during sentencing.
Muskingum County, Case No. CT2016-0034                                                    5

       {¶11} In State v. Marcum, 146 Ohio St. 3d 516, 521, 59 N.E.3d 1231, 1235–36,

2016-Ohio-1002, the Ohio Supreme Court held, “appellate courts may not apply the

abuse-of-discretion standard in sentencing-term challenges” as set forth in Kalish (citation

omitted.) Instead, “appellate courts must adhere to the plain language of R.C.

2953.08(G)(2).” Marcum at ¶ 7. Accordingly, “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.” Id. at ¶ 1.

       {¶12} Appellant’s sentence of twelve months for the charge of assaulting a

corrections officer, a felony of the fifth degree, is not contrary to law. Appellant has not

demonstrated, but for the alleged prosecutorial improper statements,3 his sentence would

have been otherwise than imposed.

       {¶13} Appellant’s sole assignment of error is overruled.

       {¶14} The judgment entered by the Muskingum County Court of Common Pleas

is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur




3
 We need not determine whether the prosecutor’s religious analogies were appropriate
or improper.
