[Cite as State v. Wood, 2016-Ohio-1239.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                Plaintiff-Appellee,              :
                                                                     No. 15AP-615
v.                                               :               (M.C. No. 14CRB-28393)

Mary Wood,                                       :             (REGULAR CALENDAR)

                Defendant-Appellant.             :


                                           D E C I S I O N

                                     Rendered on March 24, 2016


                On brief: Yeura R. Venters, Public Defender, and George M.
                Schumann, for appellant.

                On brief: Richard C. Pfeiffer, City Attorney, Lara N. Baker,
                City Prosecutor, Melanie R. Tobias, Appellate Director, and
                Orly Ahroni, for appellee.

                       APPEAL from the Franklin County Municipal Court
HORTON, J.
        {¶ 1} Mary/Shane Wood ("Wood")1 appeals from the sentence imposed by the
Franklin County Municipal Court, after he pled guilty to one count of domestic violence
under R.C. 2919.25(A). For the reasons set forth below, we affirm.
        {¶ 2} A four-count complaint filed on November 17, 2014, charged Wood with
domestic violence under R.C. 2919.25(A), assault under R.C. 2903.13(A), aggravated
menacing under R.C. 2903.21, and domestic violence under R.C. 2919.25(C). On April 20,
2015, Wood entered a guilty plea on the first-degree misdemeanor charge of domestic
violence under R.C. 2919.25(A), thereby admitting that he "did knowingly cause or
attempt to cause physical harm to a family or household member, to wit: [P.R.], live-in

1 Wood is a female-to-male transgender individual. The trial court record uses both Mary and Shane as

Wood's first name in various places, but in the hearing transcripts the parties consistently use male
pronouns when referring to Wood. We do so as well.
No. 15AP-615                                                                              2

girlfriend, by means of strangling [P.R.]." (Complaint.) In exchange for the plea, the other
three charges were dropped. (Entry of Guilty/No Contest Plea.) After accepting Wood's
plea, the court ordered a presentencing investigation, and the victim made an impact
statement in open court. (April 20, 2015 Tr., 40-44.)
       {¶ 3} A sentencing hearing was held on June 2, 2015. The trial court sentenced
Wood to a 180-day jail term, the maximum term for a first-degree misdemeanor under
R.C. 2929.24(A)(1). However, the court suspended 120 days of the sentence and gave
Wood 2 days of credit for time served, thereby reducing the total term of the confinement
to 58 days.
       {¶ 4} Wood appeals his sentence, asserting a single assignment of error:
              The trial court erred in sentencing the defendant, Mary Wood,
              to a jail sentence.

       {¶ 5} According to Wood, the trial court did not consider all the factors required
by the misdemeanor sentencing statute, R.C. 2929.22(B), because it gave no weight to his
lack of a criminal record, the presentence investigator's recommendation to suspend any
jail sentence, or the psychological assessment concluding that he had a low risk of
recidivism. Wood believes that the trial court improperly focused only on the physical
harm to the victim. He also argues that a jail sentence would not be in accordance with
R.C. 2929.22(A), which states that a "court shall not impose a sentence that imposes an
unnecessary burden on local government resources." Because Wood is transgender, he
argues that the county jail would be burdened by the need to separate him from the
female inmates and provide the medical treatment that he requires.
       {¶ 6} In its response, the state argues that Wood has failed to rebut the
presumption that the trial court properly considered all the statutory factors, and that the
record actually reflects that the trial court did consider the factors that Wood alleges it
ignored. The state also argues that Wood points to no evidence in the record to support
his assertion that a sentence would impose an unnecessary burden on local government
resources. (Appellee's Brief, 13-20.)
       {¶ 7} An abuse of discretion standard applies to appellate review of misdemeanor
sentences. State v. Blankenship, 192 Ohio App.3d 639, 642, 2011-Ohio-1601 (10th Dist.);
see also R.C. 2929.22(A) (stating that the trial court "has discretion to determine the most
No. 15AP-615                                                                               3

effective way to achieve the purposes and principles of sentencing" for misdemeanor
offenses). An abuse of discretion is defined as an " 'unreasonable, arbitrary, or
unconscionable use of discretion, or as a view or action that no conscientious judge could
honestly have taken.' " State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 67,
quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, ¶ 23.
       {¶ 8} The misdemeanor sentencing statute states that a sentencing court "shall be
guided by the overriding purposes of misdemeanor sentencing," which are "to protect the
public from future crime by the offender and others and to punish the offender." To do so,
"the sentencing court shall consider the impact of the offense upon the victim and the
need for changing the offender's behavior, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or the victim and the public." R.C.
2929.21(A).
       {¶ 9} As noted, the statute expressly gives a sentencing court "discretion to
determine the most effective way to achieve the purposes and principles of sentencing" in
accordance with the purposes of the misdemeanor sentencing. R.C. 2929.22(A). However,
it also provides a list of factors that the court must consider when sentencing. R.C.
2929.22(B)(1). These include "[t]he nature and circumstances of the offense," the
likelihood of recidivism, and any risk that the defendant will be a danger to others. R.C.
2929.22(B)(1). In addition, "the court may consider any other factors that are relevant."
R.C. 2929.22(C). However, "[t]he court shall not impose a [misdemeanor] sentence that
imposes an unnecessary burden on local government resources." R.C. 2929.22(A).
       {¶ 10} Although the trial court must consider the factors set forth in R.C. 2929.22,
the statute does not obligate it "to set forth its reasoning for imposing sentencing" on the
record. City of Whitehall v. Wildi, 10th Dist. No. 01AP-762, 2002-Ohio-1035; see also
State v. Hall, 2d Dist. No. 24753, 2012-Ohio-1571, ¶ 18 (stating that "a trial court is not
required to discuss the considerations listed in R.C. 2929.22 on the record, or make
explicit findings to support the sentencing"). Instead, there is a presumption that the trial
court considered the factors required by the misdemeanor sentencing statute, and "the
burden rests on the defendant to rebut the presumption that the trial court considered the
sentencing criteria." Wildi; see also State v. Piotrowski, 10th Dist. No. 05AP-159, 2005-
Ohio-4550 (reversing a trial court that had "sentenced [the] defendant pursuant to its
No. 15AP-615                                                                               4

preconceived policy requiring a period of time in jail for OVI offenders," announced by the
judge at sentencing, rather than the R.C. 2929.22 factors). To rebut the presumption and
show a sentencing error, the defendant must make an "affirmative showing that the trial
court failed to consider the factors in R.C. 2929.22." Hall at ¶ 19.
          {¶ 11} Here, Wood has not affirmatively demonstrated that the trial court failed to
consider or apply the factors required by the misdemeanor sentencing statute. With no
citation to the record, he asserts that the trial court "did not mention" his lack of a
criminal record, the presentencing investigator's recommendation of a suspended jail
sentence, or a psychological assessment concluding that he had a "low risk of re-
offending." (Appellant's Brief, 10.) However, merely asserting that the trial court was
silent on these issues, without some affirmative demonstration that the trial court failed
to properly consider the R.C. 2929.22 factors, is insufficient to overcome the presumption
that the trial court acted within its discretion. Wildi; Hall at ¶ 18.
          {¶ 12} Moreover, Wood's criticism is belied by an examination of the judge's
statements at the sentencing hearing. The judge referenced the presentence investigation
before passing sentence. (June 2, 2015 Tr., 2.) After defense counsel recounted a
conversation with the psychologist that had performed the assessment, the judge stated
that, in sentencing Wood, she "ha[d] to take into consideration not only the assessment
and the defendant's background, but also the incident that occurred to which he had
plead guilty." (Emphasis added) (June 2, 2015 Tr., 3.) Furthermore, after defense counsel
asked whether the judge had "consider[ed] the psychologist['s] recommendations," she
stated:
                I absolutely did, because the psychologist even recommended
                treatment in lieu, that was declined, if you remember.

(June 2, 2015 Tr., 10-11).
          {¶ 13} Thus, contrary to Wood's assertion, the record demonstrates that the judge
did mention and consider the presentence investigation, the psychological assessment,
and Wood's background before imposing sentence.
          {¶ 14} Arguing that it is error to focus solely on the harm caused, Wood complains
that the trial court "focused primarily" on the physical harm to the victim. (Appellant's
Brief, 10.) However, R.C. 2929.22(B)(1)(a) requires the sentencing judge to consider
No. 15AP-615                                                                              5

"[t]he nature and circumstances of the offense," and, as discussed, the record reflects that
the judge considered other factors as well. With regards to the offense itself, there was
some controversy at the sentencing hearing as to whether Wood had used a noose or
"only" his hands to try to strangle his girlfriend. (June 2, 2015 Tr., 10.) The judge stated
that, either way, it was:
              [S]till strangulation. There was testimony or [the victim's]
              statement or the recording of the phone call [that] mentioned
              a noose, that is also scary, and intimidation. But he plead
              guilty to [the offense] "by means of strangling." I don't care if
              it's hands or noose, I still have to weigh the facts in this case
              against everything else.

              That's why I'm not giving him 180 days in jail, but that's not --
              that's why I'm also not just giving him the two days in jail.

(June 2, 2015 Tr., 10.)
       {¶ 15} Based on this statement and those previously mentioned, we find that the
judge did not focus exclusively on the harm to the victim. She expressly stated that she
had "to weigh the facts in this case against everything else" when determining Wood's
sentence. Nor did the judge place undue emphasis on this factor to the exclusion of the
other R.C. 2929.22(B) factors, as Wood suggests. The statute requires the "sentencing
court [to] consider any relevant oral or written statement made by the victim," as well as
the nature and circumstances of the offense itself. R.C. 2929.22(D)(1). Thus, the judge
acted wholly within her discretion when she emphasized the act of violence that Wood
committed and the effect it had on the victim. In short, our review of the sentencing
judge's statements reveals that she did, in fact, properly consider the R.C. 2929.22(B)
factors before imposing sentence on Wood.
       {¶ 16} The misdemeanor sentencing statute also states that a "court shall not
impose a sentence that imposes an unnecessary burden on local government resources."
R.C. 2929.22(A). Citing this provision, Wood argues that the burden to the jail of
accommodating his transgender status and medical needs outweighs any interest in
punishing him by incarceration. (Appellant's Brief, 10-11). However, Wood points to no
evidence in the record to support the assertion that his confinement would unnecessarily
burden local government resources. In actuality, the record reflects that the judge was
aware of these issues and took them into consideration. At sentencing, she expressed
No. 15AP-615                                                                                6

uncertainty as to "what the jail can accommodate" when sentencing Wood, and told the
parties to advise her "in the next 60 days if the jail is not going to accept him." (June 2,
2015 Tr., 11.) There is no indication that the jail subsequently refused to accommodate
Wood. In fact, at a later hearing, the judge indicated the opposite, stating "I know that the
jail can make accommodations." (July 15, 2015 Tr., 10). Wood's assertion that the judge
erred by imposing a sentence that would unnecessarily burden local government
resources is without merit.
       {¶ 17} Although Wood believes that he should not have been sentenced to a jail
term, he plead guilty to domestic violence, a first-degree misdemeanor. R.C. 2919.25(A).
The offense carries a maximum jail term of 180 days, and Wood was on notice of the
possibility of incarceration when he entered the plea. R.C. 2929.24(A)(1). The actual term
of incarceration that Wood faces, 58 days, is significantly less than 180 days, due to the
jail time credit and the trial court's suspension of 120 days of the sentence. For the
reasons previously discussed, the trial court did not abuse its discretion when imposing
this sentence.
       {¶ 18} Finally, we note that the trial court was fully justified in imposing a sentence
of incarceration, given the extremely serious and violent nature of the offense. Wood
negotiated a plea deal that resulted in the state dropping two felony charges. The bare
facts to which he pled guilty, knowingly causing or attempting to cause physical harm to
his girlfriend by means of strangling, could have supported an even higher felony charge
than he faced in the original complaint, along with the threat of a more severe sentence.
See, e.g., R.C. 2903.11 (defining the second-degree felony of felonious assault, based on
knowingly causing or attempting to cause physical harm to another) and R.C. 2929.14
(defining basic prison terms for second-degree felonies). The trial court did not err when
imposing a jail sentence on Wood under R.C. 2929.22. The assignment of error is
overruled, and the sentence is affirmed.
                                                                        Judgment affirmed.
                          DORRIAN, P.J. and TYACK, J., concur.
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