[Cite as State v. Dahms, 2019-Ohio-3124.]




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


State of Ohio                                     Court of Appeals No. OT-18-037

        Appellee                                  Trial Court No. CRB 1801217A

v.

Nicholas B. Dahms                                 DECISION AND JUDGMENT

        Appellant                                 Decided: August 2, 2019

                                            *****

        James J. VanEerten, Ottawa County Prosecuting Attorney, and
        Blake W. Skilliter, Assistant Prosecuting Attorney, for appellee.

        Howard C. Whitcomb, III, for appellant.

                                            *****

        OSOWIK, J.

        {¶ 1} This is an appeal from an October 26, 2018 judgment of the Ottawa County

Municipal Court, sentencing appellant to a 180-day jail term following appellant’s

conviction on one count of domestic violence, in violation of R.C. 2919.25, a
misdemeanor of the first degree. For the reasons set forth below, this court affirms the

judgment of the trial court.

       {¶ 2} Appellant, Nicholas Dahms, sets forth the following assignment of error:

               I. THE TRIAL COURT ABUSED ITS DISCRETION IN

       IMPOSING A MAXIMUM SENTENCE UPON DEFENDANT-

       APPELLANT AS IT WAS AGAINST THE MANIFEST WEIGHT OF

       THE EVIDENCE.

       {¶ 3} The following undisputed facts are relevant to this appeal. On September 30,

2018, officers from the Port Clinton Police Department were dispatched to an apartment

complex in connection to reports of a woman being assaulted, screaming for help, and

asking for someone to contact the police.

       {¶ 4} Upon arrival at the scene, police discovered the victim, with whom appellant

has a son who was three-weeks old at the time of these events. The responding officers

observed multiple scratches and red marks upon her body indicative of having just been

physically assaulted. In the interim, appellant had jumped a fence and fled the scene

prior to the arrival of the police.

       {¶ 5} In response to this incident, the officers conducted an investigation,

including multiple witness interviews. The investigating officers learned that in the

course of a verbal dispute, appellant physically restrained the victim, then repeatedly

struck and choked the victim. The victim had been holding their infant son when this

incident commenced. Fortunately, the child was not injured.




2.
       {¶ 6} As a result of this incident, appellant was charged with one count of

domestic violence, in violation of R.C. 2919.25, a misdemeanor of the first degree. On

October 10, 2018, appellant pled no contest. A presentence investigation report was

ordered. On October 26, 2018, the case proceeded to sentencing.

       {¶ 7} At sentencing, the trial court noted that appellant was on parole for a prior

felony arson conviction at the time of this incident. The trial court further noted that

appellant’s criminal history included arson, tampering with evidence, theft, and driving

under the influence. Appellant failed to participate in recommended services in

connection to past offenses. Appellant failed to pay the court ordered restitution arising

in the prior theft conviction. Appellant acknowledged that a parole violation was pending

against him due to the instant case.

       {¶ 8} The trial court sentenced appellant to a period of 180 days in jail, with credit

for time served. The record reflects that appellant became aggressive and confrontational

towards the trial court upon the announcement of the sentence. The record reflects the

trial court attempted to diffuse appellant’s adversarial outburst.

       {¶ 9} Upon announcement of the sentence, appellant retorted, “What? Six

months?” The trial court replied, “Easy. Take it easy.” The trial court proceeded to

advise, “You are going to want to hold it. Okay. I respect the fact that you don’t agree

with it, but you are going to want to hold it in.”




3.
       {¶ 10} The trial court’s efforts to diffuse the matter did not curtail appellant’s

conduct. Appellant rebutted, “I don’t care. I don’t care, man * * * I mean, what the fuck,

man?” This appeal ensued.

       {¶ 11} In the sole assignment of error, appellant contends that the subject

misdemeanor sentence was unlawful. We do not concur.

       {¶ 12} It is well-established that appellate court review of a disputed misdemeanor

sentence is conducted pursuant to the abuse of discretion standard of review. State v.

Cook, 6th Dist. Lucas No. L-15-1178, 2016-Ohio-2975, ¶ 18. Demonstration of an abuse

of discretion requires showing the disputed trial court conduct to be unreasonable,

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

1140 (1983).

       {¶ 13} In conjunction with these governing principles, a misdemeanor sentence

that falls within the permissible statutory limits is presumed to be lawful absent evidence

to the contrary. State v. Townsend, 6th Dist. Lucas No. L-01-1441, 2002-Ohio-4077, ¶ 6.

       {¶ 14} We will now apply the above-described legal framework to the instant case

in order to determine the propriety of the disputed sentence.

       {¶ 15} R.C. 2929.24(A) establishes that the maximum allowable jail term for a

first-degree misdemeanor conviction is 180 days. We note that appellant acknowledges

that the term of jail imposed does fall within the permissible statutory limits.

       {¶ 16} Appellant nevertheless suggests that the sentence should be construed to be

unlawful based upon appellant’s unsupported position that longer jail terms may only




4.
properly be imposed in cases such as this if, “the most serious physical injury,” is shown

to have occurred. We do not concur.

       {¶ 17} The record reflects that appellant possesses a considerable criminal

background. The record reflects that at the time of this incident appellant remained on

parole for an aggravated arson conviction. The record further reflects that appellant

failed to pay court ordered restitution related to a prior theft conviction and failed to

participate in services in connection to the past offenses.

       {¶ 18} In addition, the record further reflects that appellant was found to be high

risk pursuant to the Ohio Risk Assessment System (“ORAS”) for community supervision

consideration purposes. The record shows that appellant placed the safety of his infant

son in jeopardy by these events when appellant commenced a physical altercation with

the victim while she was holding their child. Lastly, the record reflects appellant’s

consistent failure to take accountability for his criminal actions and failure to maintain

control even when speaking directly to the trial court during the sentencing in this case.

       {¶ 19} Given these facts and circumstances, we find that the record of evidence in

this case fails to demonstrate that the disputed trial court misdemeanor sentence was

unreasonable, arbitrary, or unconscionable. We find appellant’s assignment of error not

well-taken.

       {¶ 20} Wherefore, the judgment of the Ottawa County Municipal Court is hereby

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

                                                                         Judgment affirmed.




5.
                                                               State v. Dahms
                                                               C.A. No. OT-18-037




       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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