[Cite as State v. Jezioro, 2017-Ohio-2587.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2016-10-088

                                                    :           OPINION
    - vs -                                                       5/1/2017
                                                    :

KIMBERLY A. JEZIORO,                                :

        Defendant-Appellant.                        :



                     CRIMINAL APPEAL FROM WARREN COUNTY COURT
                                Case No. 2016 TRC 002035



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten Brandt, 520 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

David A. Chicarelli, 614 East Second Street, Franklin, Ohio 45005, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Kimberly Jezioro, appeals the sentencing decision of the

Warren County Court. For the reasons detailed below, we affirm.

        {¶ 2} On September 22, 2016, appellant pled guilty to operating a vehicle under the

influence of alcohol ("OVI") in violation of R.C. 4511.19. That same day the trial court

sentenced appellant to community control and ordered 180 days in jail with 174 of those days

suspended.
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        {¶ 3} Appellant timely appealed from the sentencing decision and later moved for

reconsideration of the six-day jail sentence and requested a hearing on the matter.1 On

September 26, 2016, appellant filed a supplemental motion for reconsideration in which she

attached a doctor's report describing a medical condition. The trial court denied appellant's

requests. We now address appellant's single assignment of error.

        {¶ 4} THE TRIAL COURT COMMITTED AN ERROR AMOUNTING TO AN ABUSE

OF DISCRETION WHEN IT SENTENCED APPELLANT PURSUANT TO ARBITRARY

COURT POLICY, WHICH FAILS TO CONSIDER THE MANDATORY PROVISIONS OF R.C.

2929.22.

        {¶ 5} In her sole assignment of error, appellant argues the trial court erred by

imposing a six-day jail sentence without considering the purposes and principles of

misdemeanor sentencing. Appellant asserts error because she believes the trial court has an

arbitrary policy of not allowing a defendant to complete a Driver's Intervention Program

("DIP") if that person has completed it in the past. In addition, appellant argues the trial court

did not adequately consider her emotional and mental condition, as attested to by a note

from her doctor indicating that she was suffering from an anxiety disorder.

        {¶ 6} We review a trial court's sentence on a misdemeanor violation under an abuse

of discretion standard. State v. Wisby, 12th Dist. Clermont No. CA2012-06-049, 2013-Ohio-

1307, ¶ 29-33; State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶

25. An abuse of discretion connotes more than an error in law or judgment; it implies that the

court's attitude is unreasonable, arbitrary, or unconscionable. State v. Sanchez-Garza, 12th


1. We note that "[t]rial courts lack authority to reconsider their own valid final judgments in criminal cases." State
v. Conn, 12th Dist. Warren No. CA2014-10-132, 2015-Ohio-2468, ¶ 14, citing State v. Raber, 134 Ohio St.3d
350, 2012-Ohio-5636, ¶ 20. There is no authority for filing a motion for reconsideration of a final judgment at the
trial court level in a criminal case and therefore a motion for reconsideration of a final judgment is a nullity. State
v. Leach, 12th Dist. Clermont No. CA2004-02-011, 2005-Ohio-2370, ¶ 6. The state filed a motion to dismiss
based on this reasoning. However, in an entry dated November 28, 2016, this court found that appellant
appealed the original sentencing entry and jurisdiction was proper notwithstanding the motion to reconsider.
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Dist. Butler No. CA2016-02-036, 2017-Ohio-1234, ¶ 33

       {¶ 7} Pursuant to R.C. 2929.21 and 2929.22, trial courts have broad discretion when

determining what sentence is appropriate for each given misdemeanor case. State v.

Kinsworthy, 12th Dist. Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 30.                   When

determining the appropriate sentence, the trial court must be guided by the purposes of

misdemeanor sentencing which are "to protect the public from future crime by the offender

and others and to punish the offender." R.C. 2929.21(A). The trial court must also consider

the factors listed in R.C. 2929.22(B)(1), including the nature and circumstances of the

offense, and may consider any other factors that are relevant to achieving the purposes and

principles of misdemeanor sentencing. R.C. 2929.22(B)(2). State v. Briggs, 12th Dist.

Clermont No. CA2016-06-043, 2017-Ohio-686, ¶ 24. "Although it is preferable that the trial

court affirmatively state on the record that it has considered the criteria set forth in R.C.

2929.22, the statute does not mandate that the record state that the trial court considered the

applicable statutory factors." Wisby at ¶ 30. A trial court is presumed to have considered the

statutory factors when the sentence is "within the statutory limits and there is no affirmative

showing that the trial court failed to do so." Id.

       {¶ 8} In support of her argument, appellant alleges the trial court has a court policy of

refusing to allow defendants to participate in a DIP if they have previously completed the

program, and refers to the following exchange:

              [APPELLANT'S TRIAL COUNSEL]: You're not going to allow her
              to do the three-day program, Your Honor? * * *

              THE COURT: No. She's already done it once.

Appellant interprets that statement as a court policy and relies on State v. Piotrowski, 10th

Dist. Franklin No. 05AP-159, 2005-Ohio-4550, to support her argument. In that case, a

defendant pled guilty to one count of OVI and the trial court imposed a jail term without


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considering the mandatory factors set forth in R.C. 2929.22. The trial court stated on the

record that it had a "policy on first time OMVIs," [sic] and proceeded to impose a sentence

that included a jail term. Id. at ¶ 4. Instead of considering the mitigating factors, the Tenth

District found that "the plain words the court used indicated the trial court sentenced

defendant pursuant to its preconceived policy requiring a period of time in jail for OVI

offenders." Id. at ¶ 8. In light of the trial court's reference to its "policy," the Tenth District

concluded "that the trial court failed to consider the mandatory factors set forth in R.C.

2929.22 and thus abused its discretion in sentencing defendant pursuant to its policy." Id. at

¶ 9.

       {¶ 9} However, unlike Piotrowski, we find no evidence of any court policy that the trial

court considered paramount to the sentencing considerations provided by statute. Rather,

the record reflects that the trial court considered the facts and circumstances of the case

before imposing a sentence. We decline to find that the trial court was announcing a court

policy based on the mere suggestion that appellant had already completed DIP in the past.

       {¶ 10} In this case, the trial court imposed a six-day jail term, which is within the

statutory limits and there is no affirmative indication that the trial court failed to consider the

factors contained in R.C. 2929.21 and 2929.22. Consequently, the trial court is presumed to

have complied with R.C. 2929.21 and 2929.22. Furthermore, at the sentencing hearing, the

trial court considered appellant's argument, but noted that there were consequences for her

actions. The trial court expressly acknowledged that appellant had taken responsibility for

her actions and that was taken into consideration during sentencing. While emphasizing

personal responsibility, the trial court also indicated that appellant should consult experts to

determine whether she had a drinking problem and whether further recommendations were

needed following an assessment.

       {¶ 11} Based on our review of the record, we find no evidence of improper motive or
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court policy in the trial court's sentencing decision. Accordingly, we do not find the trial court

failed to consider the mandatory provisions contained in R.C. 2929.21 and 2929.22.

       {¶ 12} Finally, we also note that appellant argues the trial court erred by declining to

consider a letter written by appellant's doctor, which stated that appellant is suffering from

anxiety and a jail term would not be beneficial to her treatment. However, we find no error in

that decision. As noted above, the trial court imposed sentence prior to the introduction of

the letter. Essentially, appellant's request was a motion for reconsideration, which the trial

court did not have authority to consider. Conn, 2015-Ohio-2468 at ¶ 14. Nor do we believe

that the letter from appellant's doctor presents a compelling reason to avoid jail.

       {¶ 13} Finding no abuse of discretion in sentencing appellant, we find appellant's first

assignment of error is without merit and is hereby overruled.

       {¶ 14} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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