[Cite as State v. Kolodzaike, 2017-Ohio-7776.]




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


State of Ohio                                        Court of Appeals Nos. WD-16-049
                                                                           WD-16-050
        Appellee
                                                     Trial Court Nos. TRC 1605377
v.                                                                    CRB-1601140

Michael Kolodzaike                                   DECISION AND JUDGMENT

        Appellant                                    Decided: September 22, 2017

                                                 *****

        P. Martin Aubry, Perrysburg Chief Prosecutor, and Corey Speweik,
        Assistant Prosecutor, for appellee.

        Lawrence A. Gold, for appellant.

                                                 *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a September 30, 2016 judgment of the Perrysburg

Municipal Court, sentencing appellant, Michael Kolodzaike, to a term of incarceration of

180 days, with 150 days suspended, on one count of operating a vehicle while under the

influence, in violation of R.C. 4511.19(A)(1)(h), a first-degree misdemeanor. In addition,
the court sentenced appellant to a term of incarceration of 180 days, with 90 days

suspended, on one amended count of assault, in violation of R.C. 2903.13(A), a first-

degree misdemeanor.

         {¶ 2} The sentences were ordered to be served consecutively, for a total term of

incarceration of 120 days. For the reasons set forth below, this court affirms the

judgment of the trial court.

         {¶ 3} On October 11, 2016, appellant filed two separate notices of appeal

regarding the above-discussed cases. On November 7, 2016, this court consolidated the

cases.

         {¶ 4} On appeal, appellant, Michael Kolodaize, sets forth the following

assignment of error:

               The trial court abused its discretion by not complying with the

         statutory guidelines in R.C. 2929.21 and R.C. 2929.22 in imposing

         appellant’s misdemeanor sentence.

         {¶ 5} The following undisputed facts are relevant to this appeal. On August 19,

2016, Perrysburg police officers responded to a call for emergency assistance at the

Perrysburg apartment of appellant’s former girlfriend. The responding officers

determined that appellant had been driving while under the influence of alcohol.     The

ensuing B.A.C. test revealed appellant to have a blood alcohol level of .184, more than

twice the legal limit. This was appellant’s second O.V.I. offense in six years.




2.
       {¶ 6} Subsequently, on September 18, 2016, appellant was charged with domestic

violence in connection to a separate incident in which he caused physical injuries to his

former girlfriend. The victim required medical attention.

       {¶ 7} Pursuant to a plea agreement covering all pending charges, appellant pled

guilty to one O.V.I. count and one amended count of assault, as reduced from one count

of domestic. In exchange, all remaining charges pending against appellant were

dismissed. Appellant was sentenced to a total term of incarceration of 120 days. This

appeal ensued.

       {¶ 8} In the sole assignment of error, appellant maintains that the trial court

abused its discretion in sentencing him to a term of incarceration of 120 days. We do not

concur.

       {¶ 9} Notably, although appellant concedes that the disputed sentence is within the

statutory range, he nevertheless maintains that the trial court failed to properly consider

the sentencing principles of R.C. 2929.21 and the sentencing factors of R.C. 2929.22.

       {¶ 10} Ohio courts consistently hold that misdemeanor sentences cannot be

overturned on appeal absent an abuse of discretion by the trial court. State v. Jones, 6th

Dist. Lucas No. L-16-1014, 2017-Ohio-413, ¶ 8, citing State v. Cook, 6th Dist. Lucas No.

L-15-1178, 2016-Ohio-2975. In order to demonstrate an abuse of discretion, it must be

shown that the disputed trial court action was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).




3.
       {¶ 11} In conjunction with the above, a misdemeanor sentence is presumed to be

compliant when the sentence falls within the statutory range. State v. Cook, 6th Dist.

Lucas No. L-15-1178, 2016-Ohio-2975, ¶ 18, citing Toledo v. Reasonover, 5 Ohio St.2d

22, 213 N.E.2d 179 (1965), paragraph one of the syllabus.

       {¶ 12} Pursuant to R.C. 2929.24(A)(1), the maximum sentence that a trial court

may impose on a first-degree misdemeanor conviction is 180 days. As such, appellant

faced a maximum of one-year total term of incarceration. By contrast, the trial court

sentenced appellant to a 30-day sentence for the O.V.I. conviction and a 90-day sentence

for the amended assault conviction. The sentences were ordered to be served

consecutively, for a total term of incarceration of 120 days.

       {¶ 13} The record reflects that the disputed sentence lies well within the

permissible statutory range and was substantially below the maximum sentence that

could have been imposed. The record is devoid of any evidence that the sentence was

unreasonable, arbitrary, or unconscionable. Appellant had failed to demonstrate any

abuse of discretion by the trial court regarding the subject misdemeanor sentence. As

such, appellant’s sole assignment of error is found not well-taken.

       {¶ 14} On consideration whereof, the judgment of the Perrysburg Municipal Court

is hereby affirmed. Pursuant to App.R. 24, the costs of this appeal are assessed to

appellant.

                                                                        Judgment affirmed.




4.
                                                               State v. Kolodzaike
                                                               C.A. Nos. WD-16-049
                                                                         WD-16-050




       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




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