[Cite as State v. Picklesimer, 2012-Ohio-1282.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             PICKAWAY COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA9
                               :
     vs.                       : Released: March 16, 2012
                               :
JAMES PICKLESIMER,             : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Lori Pritchard Hardin, Circleville, Ohio, for Appellant.

Gary Kenworthy, City of Circleville Law Director, and Benjamin A. Sigall,
City of Circleville Assistant Law Director, Circleville, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from a Circleville Municipal Court judgment of

conviction and sentence finding Appellant guilty after a bench trial of two

counts of assault, both first degree misdemeanors in violation of R.C.

2903.13, and one count of criminal damaging, a second degree misdemeanor

in violation of R.C. 2909.06. On appeal, Appellant contends that 1) the

State of Ohio failed to prove each and every element of the crime charged

beyond a reasonable doubt, claiming that as such the guilty verdict was

entered against the manifest weight of the evidence; 2) the trial court erred to
Pickaway App. No. 11CA9                                                           2


the prejudice of Appellant and abused its discretion when it sentenced him to

the maximum jail term permitted by law for the offense committed; 3) he

was denied effective assistance of counsel due to the fact that counsel failed

to object to inadmissible evidence, failed to object to procedural errors as it

related to one count, failed to cross examine a key witness, erred by calling

one of the State’s witnesses, and failed to present persuasive closing

arguments; 4) the trial court erred to the prejudice of Appellant and denied

him due process of law when it rendered a finding of guilt of a charge of

criminal damaging not properly before the court.

      {¶2} After considering Appellant’s assignments of error, we find

some merit in Appellant’s arguments. First, as we agree with Appellant that

the trial court erred in convicting him of criminal damaging when that

charge was not properly before the court, we sustain Appellant’s fourth

assignment of error and vacate Appellant’s conviction for the criminal

damaging charge. Secondly, with respect to Appellant’s third assignment of

error, we find trial counsel’s performance both deficient and prejudicial in

connection with his refusal to accept the State’s offer to dismiss the assault

charge as to Lindsey Fee, which ultimately resulted in a conviction. As

such, we sustain Appellant’s third assignment of error and vacate

Appellant’s conviction for the assault charge against Lindsey Fee.
Pickaway App. No. 11CA9                                                        3


      {¶3} Next, in light of our conclusion that the State proved each and

every element of the alleged assault against Brandon Hardesty beyond a

reasonable doubt and that Appellant did not sufficiently demonstrate that he

acted in self defense, we overrule Appellant’s first assignment of error and

affirm Appellant’s conviction with respect to the sole remaining charge of

assault. Finally, as we find no abuse of discretion on the part of the trial

court with respect to the sentence imposed on the remaining conviction, we

overrule Appellant’s second assignment of error and affirm the sentence of

the trial court with respect to that conviction.

      {¶4} Thus, Appellant’s conviction and sentence for assault as against

Lindsey Fee, as well as his conviction and sentence for criminal damaging

are vacated. Further, his conviction and sentence for assault as against

Brandon Hardesty are affirmed.

                                    FACTS

      {¶5} Two complaints were filed in the Circleville Municipal Court on

September 28, 2010, each charging Appellant, James Picklesimer, with

assault, first degree misdemeanor in violation of R.C. 2903.13. The

complaint identified as case number 10CRB1351-A alleged Appellant

assaulted Lindsey Fee and the complaint identified as case number

10CRB1351-B alleged Appellant assaulted Brandon Hardesty. These
Pickaway App. No. 11CA9                                                        4


complaints stemmed from an incident that occurred on September 23, 2010,

where Appellant showed up at property owned by Hardesty’s aunt, where

Hardesty and Fee were working on a truck owned by Hardesty’s brother.

Apparently Appellant and Fee had been romantically linked. Appellant

arrived at the property and within a minute a scuffle ensued, resulting in a

call to law enforcement reporting Hardesty and Fee had been assaulted.

      {¶6} The matter proceeded and was scheduled for a bench trial on

February 15, 2011. Just five days prior to the scheduled bench trial, another

complaint was filed, identified as case number 10CRB1351-C, charging

Appellant with criminal damaging, a second degree misdemeanor in

violation of R.C. 2909.06. When the matter came on for the scheduled

bench trial on February 15, 2011, a discussion ensued regarding the newly

filed complaint and it was determined by all parties and the court that only

the assault charges would proceed to trial and that the criminal damaging

charge would be continued. Because a key witness, Lindsey Fee, did not

appear for trial, the trial court suspended the trial and issued a writ of

attachment commanding Fee’s presence for trial. The trial was then

resumed on March 17, 2011.

      {¶7} After hearing the evidence presented at trial, which included

testimony from the victims, Sergeant Bachnicki of the Pickaway County
Pickaway App. No. 11CA9                                                         5


Sheriff’s Office, and Appellant himself, the trial court found Appellant

guilty of both assault charges, as well as the criminal damaging charge. The

trial court then proceeded to sentence Appellant to 180 days on each charge

of assault, to be served concurrently to one another, and consecutive to a 90

day suspended sentence on the criminal damaging charge. It is from this

judgment and sentence that Appellant now brings his timely appeal,

assigning the following errors for our review.

                       ASSIGNMENTS OF ERROR

“I.    THE STATE OF OHIO FAILED TO PROVED [SIC] EACH AND
       EVERY ELEMENT OF THE CRIME CHARGED BEYOND A
       REASONABLE DOUBT. AS SUCH, THE GUILTY VERDICT
       WAS ENTERED AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

II.    THE TRIAL COURT ERRED TO THE PREJUDICE OF
       DEFENDANT AND ABUSED ITS DISCRETION WHEN IT
       SENTENCED HIM TO THE MAXIMUM ALLOWABLE JAIL
       TERM FOR THE OFFENSE COMMITTED.

III.   DEFENDANT WAS DENIED INEFFECTIVE [SIC] ASSISTANCE
       OF COUNSEL DUE TO THE FACT THAT COUNSEL FAILED TO
       OBJECT TO INADMISSIBLE EVIDENCE, FAILED TO OBJECT
       TO PROCEDURAL ERRORS AS IT RELATED TO ONE COUNT,
       FAILED TO CROSS EXAMINE A KEY WITNESS, ERRED BY
       CALLING ONE OF THE STATE’S WITNESSES, AND FAILED
       TO PRESENT PERSUASIVE CLOSING ARGUMENTS.

IV.    THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
       DEFENDANT AND DENIED HIM DUE PROCESS OF LAW
       WHEN IT RENDERED JUDGMENT ON CRIMINAL CHARGES
       NOT PROPERLY BEFORE IT.”
Pickaway App. No. 11CA9                                                          6


                       ASSIGNMENT OF ERROR IV

      {¶8} For ease of analysis, we address Appellant’s assignments of error

out of order. In his fourth assignment of error, Appellant contends that the

trial court erred to his prejudice and denied him due process of law when it

rendered judgment on criminal charges not properly before it. Specifically,

Appellant contends that the trial court made it clear that the count involving

criminal damaging was not properly before the court due to a service issue,

but then proceeded to find Appellant guilty of that charge and impose

sentence. The State has declined to respond to Appellant’s position and

instead asks this Court to decide the matter. Based upon our review of the

record, we agree with Appellant.

      {¶9} As set forth above, a review of the record indicates that two

criminal complaints were filed each alleging Appellant had committed the

crime of assault. The first complaint, identified as case number

10CRB1351-A, alleged Appellant had assaulted Lindsey Fee. The second

complaint, identified as case number 10CRB1351-B, alleged Appellant had

assaulted Brandon Hardesty. These cases proceeded accordingly and were

set for a bench trial on February 15, 2011. On February 10, 2011, just five

days before the scheduled trial, another complaint, identified as case number

10CRB1351-C, was filed, charging Appellant with criminal damaging.
Pickaway App. No. 11CA9                                                          7


      {¶10} When the matter came on for the scheduled bench trial on

February 15, 2011, the parties and the court agreed that only the assault

charges would be tried and that the criminal damaging charge would not

proceed that day. In fact, defense counsel represented to the trial court that

he had not even been appointed on the criminal damaging case and knew

nothing about it.

The trial transcript contains several references to this matter, as follows:

“Attorney for Defendant: Well the criminal damaging case is set for trial.
                         I’m not appointed on it, it just got filed. The case I
                         have, was appointed on is an assault case. I don’t
                         how [sic] the criminal damaging relates to the
                         assault at all since I’ve never been appointed nor
                         received any paperwork on it.”

Prosecutor:                The State doesn’t have a problem putting off the
                           criminal damaging to another time.

***

Judge:                     Well why don’t we try the assault cases and we’ll
                           bump these others over to the criminal damaging
                           cases and we’ll put those all together or not.

Attorney for Defendant: That’s fine.

Judge:                     I mean if we’re not prepared, there’s nothing in the
                           file that indicates that Mr. Larson was even
                           appointed in that case and I suppose that just got
                           scheduled cause we scheduled it together. And
                           that may be as much my problem as anybody’s.

Prosecutor:                Well the criminal damaging, it’s possible the
                           defendant hasn’t been served but that case will
Pickaway App. No. 11CA9                                                          8


                          involve a number of the same witnesses so if it
                          were possible to try the criminal damaging the
                          State would appreciate that for the benefit of the
                          victims who have been here on a couple of
                          occasions already. If that’s not a possibility the
                          State understands that but we would like to point
                          out to the court that it would be more convenient
                          for the victims if they didn’t have to appear for a
                          third time.

Attorney for Defendant: Normally I’m amenable to that except that my
                        client doesn’t give me permission to do any of
                        those type of things. I think the court knows I
                        would try to do that if I could.

Judge:                    Well, yea, this just, the criminal damaging was just
                          filed February 10th. I’m going to separate the two.
                          Let’s just try the assault cases. I realize it’s got the
                          same witnesses but I don’t think that it’s fair to
                          Mr. Larson to try something that was filed
                          February 10th which he’s not prepared to do. Let’s
                          do the assault cases and we’ll go from there.”

      {¶11} Although the trial was eventually suspended at some point and

then resumed on March 17, 2011, there was no further mention of trying the

criminal damaging charge. Then, inexplicably, at the close of the case, the

trial court found Appellant guilty of the criminal damaging charge and

sentenced Appellant to a suspended jail term of 90 days. Appellant had not

been properly served, counsel that was trying the case had not been

appointed on anything but the assault charges, and Appellant had no notice

he was to defend against a charge of criminal damaging as part of the trial of

the assault charges. Clearly, the trial court’s actions were in error. As such,
Pickaway App. No. 11CA9                                                           9


we sustain Appellant’s fourth assignment of error and hereby vacate

Appellant’s conviction and sentence for criminal damaging.

                       ASSIGNMENT OF ERROR III

      {¶12} In his third assignment of error, Appellant contends that he was

denied the effective assistance of counsel due to the fact that counsel failed

to object to inadmissible evidence, failed to object to procedural errors as it

related to count one, failed to cross examine a key witness, erred by calling

one of the State’s witnesses, and failed to present persuasive closing

arguments.

      {¶13} In order to prevail on a claim of ineffective assistance of

counsel, an appellant must show that (1) his counsel's performance was

deficient, and (2) the deficient performance prejudiced his defense so as to

deprive him of a fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-

Ohio-5084, 854 N.E.2d 1038, at ¶ 205, citing Strickland v. Washington

(1984), 466 U.S. 668, 687, 104 S.Ct. 2052. To establish deficient

performance, an appellant must show that trial counsel's performance fell

below an objective level of reasonable representation. State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 95. To establish

prejudice, an appellant must show a reasonable probability exists that, but

for the alleged errors, the result of the proceeding would have been different.
Pickaway App. No. 11CA9                                                          10


Id. “ ‘In Ohio, a properly licensed attorney is presumed competent and the

appellant bears the burden to establish counsel's ineffectiveness.’ ” State v.

Countryman, Washington App. No. 08CA12, 2008-Ohio-6700, at ¶ 20,

quoting State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473;

State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56, 524 N.E.2d 476, cert.

den. Hamblin v. Ohio (1988) 488 U .S. 975, 109 S.Ct. 515.

      {¶14} We first address Appellant’s assertion that his trial counsel

failed by calling one of the State’s witnesses. “Generally, decisions to call

witnesses is within the purview of defense counsel's trial strategy and is not

considered deficient performance absent a showing of prejudice.” State v.

Spires, Gallia App. No. 10CA10, 2011-Ohio-3661; citing, State v. Jackson,

Lawrence App. No. 97CA2, 1997 WL 749480; citing, State v. Hunt (1984),

20 Ohio App.3d 310, 312, 486 N.E.2d 108. Here, one of the State’s key

witnesses, Lindsey Fee, who was the victim of the assault as alleged in count

one, failed to show up for trial on February 15, 2011. As a result, the trial

court suspended the trial, issued a writ of attachment as to Ms. Fee, and

resumed the trial on March 17, 2011, once Ms. Fee’s presence was secured.

However, at the beginning of the trial on that date, the State represented to

the trial court that it would not be calling Ms. Fee as a witness, and offered

to dismiss the assault charge against Appellant as to Ms. Fee. For some
Pickaway App. No. 11CA9                                                         11


reason, which escapes us, Appellant’s counsel refused this offer and

proceeded to call Ms. Fee as a defense witness.

      {¶15} Under the circumstances, we can discern no sound trial strategy

with regard to trial counsel’s decision to reject the dismissal and proceed

with calling as a witness the victim of the alleged assault charge pertaining

to Lindsey Fee. In particular, we note that counsel’s line of questioning did

not attempt to elicit any testimony that would have mitigated in Appellant’s

favor with regard to the assault charge pertaining to Brandon Hardesty.

Instead, counsel’s questioning seemed to be focused on proving that Fee was

in fact the aggressor as against Appellant, none of which would have been

necessary had the charge simply been dismissed as offered. Thus, we find

counsel’s performance in this regard to be both deficient and prejudicial.

Had counsel accepted the State’s offer to dismiss the assault charge, the

outcome would obviously have been different as counsel’s rejection of the

offer ultimately led to a conviction on that charge. As such, we sustain

Appellant’s third assignment of error to the extent that it argues trial counsel

was ineffective in his refusal to accept the State’s offer to dismiss the assault

charge pertaining to Lindsey Fee and instead calling Fee as a defense

witness.
Pickaway App. No. 11CA9                                                                                    12


         {¶16} Appellant points to additional errors by trial counsel, which he

claims constitute ineffective assistance of counsel. Specifically, Appellant

contends that trial counsel erred by failing to cross examine Elana Hardesty,

by failing to object to various instances of hearsay,1 and by failing to

mention that the State failed to introduce evidence of the “knowingly”

element of the assault and criminal damaging charges. As these arguments

relate to the criminal damaging charge and the assault charge against

Lindsey Fee, which we have already vacated, we need not address them.

                                 ASSIGNMENT OF ERROR I

         {¶17} In his first assignment of error, Appellant contends that the

State of Ohio failed to prove each and every element of the crime charged

beyond a reasonable doubt and that, as such, the guilty verdict was against

the manifest weight of the evidence. “The legal concepts of sufficiency of

the evidence and weight of the evidence are both quantitatively and

qualitatively different.” State v. Thompkins (1997), 78 Ohio St.3d 380, 386,

1997-Ohio-52, 678 N.E.2d 541. Sufficiency tests the adequacy of the

evidence, while weight tests “the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather



1
  We note that Appellant simply cites to pages in the transcript regarding the alleged instances of hearsay,
does not cite to the specific questions he believes should have been objected to and does not explain how
the outcome of the trial would have been different had trial counsel entered these objections into the record.
Pickaway App. No. 11CA9                                                         13


than the other[.]” State v. Sudderth, Lawrence App. No 07CA38, 2008-Ohio-

5115, at ¶ 27, quoting Thompkins at 387.

      {¶18} “Even when sufficient evidence supports a verdict, we may

conclude that the verdict is against the manifest weight of the evidence,

because the test under the manifest weight standard is much broader than

that for sufficiency of the evidence.” State v. Smith, Pickaway App. No.

06CA7, 2007-Ohio-502 at ¶ 41. When determining whether a criminal

conviction is against the manifest weight of the evidence, we “will not

reverse a conviction where there is substantial evidence upon which the

[trier of fact] could reasonably conclude that all the elements of an offense

have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38

Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. See, also,

Smith at ¶ 41. We “must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial granted.” Smith at ¶ 41,

citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d

814; State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

However, “[o]n the trial of a case, * * * the weight to be given the evidence
Pickaway App. No. 11CA9                                                                                  14


and the credibility of the witnesses are primarily for the trier of the facts.”

State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212 at paragraph one

of the syllabus.

         {¶19} Appellant was convicted of assaulting Brandon Hardesty,2 the

offense of which is a first degree misdemeanor in violation of R.C. 2903.13,

which provides that “[n]o person shall knowingly cause or attempt to cause

physical harm to another or to another's unborn.” Here, the State presented

the testimony of Deputy Bachnicki and Brandon Hardesty to support its

position that Appellant assaulted Brandon Hardesty. Further, Appellant

conceded he assaulted Brandon Hardesty when he testified at trial.

         {¶20} Deputy Bachnicki testified that he responded to the call

reporting the assault and that upon observing Mr. Hardesty’s condition he

noted redness on the left side of his cheek, face and head area, which in his

opinion was consistent with someone who had been punched in the face.

Deputy Bachnicki photographed Hardesty’s injuries and the photographs

were entered into evidence at trial. Brandon Hardesty testified that he was at

his aunt’ house working on a truck owned by his brother on the date of the

incident when Appellant arrived and immediately began walking towards

him. Hardesty testified that he tried to go around Appellant to get into his
2
 In light of our disposition of Appellant’s third and fourth assignments of error which vacated Appellant’s
convictions for assault as against Lindsey Fee and criminal damaging, the only conviction we consider
under this assignment of error is the assault conviction related to Brandon Hardesty.
Pickaway App. No. 11CA9                                                       15


aunt’s car but that after he got into the car Appellant opened the car door and

punched him four or five times. Hardesty further testified that he was able

to start the car and drive away. Finally, Appellant conceded he assaulted

Hardesty by testifying at trial that he punched Hardesty three times. As

such, we find that the State proved each and every element of the crime of

assault beyond a reasonable doubt.

      {¶21} However, in his brief, Appellant contends that he demonstrated

that he was acting in self defense when he assaulted Hardesty. Specifically,

Appellant testified at that he thought Hardesty was reaching for some sort of

weapon when he got into his aunt’s car. Self-defense is an affirmative

defense, and the burden of going forward with evidence to prove self-

defense rests entirely on the accused. R.C. 2901.05(A); State v. Palmer, 80

Ohio St.3d 543, 563, 1997-Ohio-312, 687 N.E.2d 685, 703; State v. Martin

(1986), 21 Ohio St.3d 91, 488 N.E.2d 166, at the syllabus, aff'd Martin v.

Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, 94 L .Ed.2d 267. To prove self-

defense, the evidence must show that: (1) the accused was not at fault in

creating the situation that gave rise to the affray; (2) the accused has a bona

fide belief that he was in imminent danger of harm and that his only means

of escape from such danger was in the use of such force; and (3) the

defendant must not have violated any duty to retreat or to avoid the danger.
Pickaway App. No. 11CA9                                                          16


State v. Williford (1990), 49 Ohio St.3d 247, 249, 551 N.E.2d 1279; State v.

Robbins (1979), 58 Ohio St.2d 74, 388 N.E.2d 755, at paragraph two of the

syllabus.

      {¶22} Here, there were competing stories related to the events on the

day in question. While Appellant essentially testified that he had just

stopped by to talk to Fee and to do no harm, Hardesty testified that

Appellant had made prior threats to him and arrived at the property in

question and immediately began walking quickly towards him. Hardesty

further testified that when he got into his aunt’s car to try to escape he was

trying to close the door and start the car to get away, which undermines

Appellant’s theory that Hardesty was reaching for a weapon.

      {¶23} The trial court rejected Appellant’s theory, finding Appellant’s

story to be unbelievable. Specifically, the trial court reasoned as follows:

“Judge:      I, this is one of those situations where looking at what the
             testimony was, looking at the entire fact pattern it’s very
             difficult in my opinion to see this anyway but the way that the
             State sees it. I don’t think Mr. Picklesimer’s testimony is very
             credible, it doesn’t make a lot of sense. The whole thing seems
             to be off beat and just a bizarre set of behaviors. * * * Well,
             you know, if this were a normal triangle and we didn’t have,
             didn’t have the, some of the facts that are going here but you
             know, you go where you’re not invited, you show up on their
             turf and within a minute it goes bad. * * * You’re, I don’t think
             you’re believable. And I think the bottom line is you don’t play
             well with others. You can’t live with the rest of us very well.”
Pickaway App. No. 11CA9                                                         17


      {¶24} We leave the issues of weight and credibility of the evidence to

the fact finder, as long as there is a rational basis in the record for their

decision. Murphy at ¶ 31; State v. Lewis, Lawrence App. No. 06CA26, 2007-

Ohio-2250, at ¶ 12. We defer to the fact finder on these issues because the

fact finder “ ‘is best able to view the witnesses and observe their demeanor,

gestures, and voice inflections, and use these observations in weighing the

credibility of proffered testimony.’ ” Id., quoting Seasons Coal Co., 10 Ohio

St.3d at 80. It was within the province of the trial court, as the trier of fact,

to assess credibility of the witnesses and as such it was free to accept or

reject Appellant’s testimony. Clearly, the trial court rejected Appellant’s

testimony and instead chose to believe Brandon Hardesty’s account.

      {¶25} Based upon our review of the record, as well as the foregoing

reasoning of the trial court, we cannot conclude that the verdict was against

the manifest weight of the evidence. Thus, Appellant’s first assignment of

error is overruled and his conviction for assault as against Brandon Hardesty

is affirmed.

                         ASSIGNMENT OF ERROR II

      {¶26} In his second assignment of error, Appellant contends that the

trial court erred to his prejudice and abused its discretion when it sentenced

him to the maximum jail sentence which was clearly and convincingly
Pickaway App. No. 11CA9                                                         18


contrary to law. A review of the record reveals that Appellant was

sentenced to 180 days of jail on each misdemeanor assault conviction, to be

served concurrently to each other but consecutive to a suspended 90 day

sentence on the misdemeanor criminal damaging conviction. As set forth

above, we have already vacated Appellant’s convictions and sentences for

one of the assault charges, as well as the criminal damaging charge. As

such, we need only determine whether the trial court erred and/or abused its

discretion in sentencing Appellant to the maximum 180 day jail term on the

first degree misdemeanor assault conviction related to Brandon Hardesty.

      {¶27} In determining the appropriate sentence for a misdemeanor, the

court shall consider all of the following factors:

(a) The nature and circumstances of the offense or offenses;

(b) Whether the circumstances regarding the offender and the offense or
offenses indicate that the offender has a history of persistent criminal
activity and that the offender's character and condition reveal a substantial
risk that the offender will commit another offense;

(c) Whether the circumstances regarding the offender and the offense or
offenses indicate that the offender's history, character, and condition reveal a
substantial risk that the offender will be a danger to others and that the
offender's conduct has been characterized by a pattern of repetitive,
compulsive, or aggressive behavior with heedless indifference to the
consequences;

(d) Whether the victim's youth, age, disability, or other factor made the
victim particularly vulnerable to the offense or made the impact of the
offense more serious;
Pickaway App. No. 11CA9                                                        19


(e) Whether the offender is likely to commit future crimes in general, in
addition to the circumstances described in divisions (B)(1)(b) and (c) of this
section.

The trial court did not expressly reference these factors in either the

sentencing hearing or in its sentencing entry.

      {¶28} “Generally, trial courts enjoy broad discretion when imposing

sentences in misdemeanor cases, and we will not vacate a sentence unless

the court abused its discretion.” State v. Babu, Athens App. No. 07CA36,

2008-Ohio-5298 at ¶ 36; State v. Fitzpatrick, Lawrence App. No 07CA18,

2007-Ohio-7170, at ¶ 9; State v. Polick (1995), 101 Ohio App.3d 428, 430-

31, 655 N.E.2d 820. An abuse of discretion involves more than an error of

judgment; it connotes an attitude on the part of the court that is

unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v.

State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24.

When applying the abuse of discretion standard, a reviewing court is not free

to merely substitute its judgment for that of the trial court. State v.

Hutchinson, Athens App. No. 03CA31, 2004-Ohio-4125, at ¶ 13, citing In re

Jane Doe I (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181, and Berk v.

Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.

      {¶29} “Nonetheless, the trial court lacks the discretion to disregard the

statutory factors provided in R.C. 2929.22(B)(1), even though it has
Pickaway App. No. 11CA9                                                         20


discretion in the ultimate sentence handed down after consideration of those

factors.” Babu at ¶ 36; see, also State v. Strohm, 153 Ohio App.3d 1, 2003-

Ohio-1202, 790 N.E.2d 796, at ¶ 8 (“Although R.C. 2929.22 does not set

forth requirements for imposing maximum or consecutive sentences, it does

set forth factors that must be considered when determining whether a jail

term is appropriate. The failure to consider these factors is an abuse of

discretion.”) (internal citations omitted); State v. Polick (1995), 101 Ohio

App.3d 428, 431, 655 N.E.2d 820 (“Although none of the statutory criteria

absolutely mandate a certain result and the court may consider other relevant

matter in sentencing a defendant on a misdemeanor, the court must consider

the factors set forth in R.C. 2929.22.”).

      {¶30} Here, the trial court sentenced Appellant to 180 days in jail.

Under R.C. 2929.24(A)(1), the trial court could impose a sentence of not

more than 180 days for a first-degree misdemeanor. As we have previously

explained, “when a jail sentence falls within the statutory limit, as it does

here, reviewing courts presume that the trial court followed the appropriate

statutory guidelines.” Fitzpatrick at ¶ 10, citing State v. Wagner (1992), 80

Ohio App.3d 88, 95-96, 608 N.E.2d 852, and State v. Crable, Belmont App.

No. 04BE17, 2004-Ohio-6812, at ¶ 24; see, also, City of Toledo v. Kothe,

Lucas App. No. L-07-1383, 2008-Ohio-2880, at ¶ 19 (“In cases where the
Pickaway App. No. 11CA9                                                        21


record is silent on this issue, a presumption is raised that the trial court

properly considered the factors listed in R.C. 2929.22.”); State v. Nelson,

172 Ohio App.3d 419, 2007-Ohio-3459, 875 N.E.2d 137, at ¶ 14, quoting

State v. McCaleb (Sept. 8, 2006), Greene App. No. 05CA155, 2006-Ohio-

4652, ¶ 41 (“When determining a misdemeanor sentence, R.C. 2929.22 does

not mandate that the record reveal the trial court's consideration of the

statutory sentencing factors. Rather, appellate courts will presume that the

trial court considered the factors set forth in R.C. 2929.22 when the sentence

is within the statutory limits, absent an affirmative showing to the

contrary.”); State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361,

paragraph three of the syllabus (“A silent record raises the presumption that

a trial court considered the factors contained in R.C. 2929.12.”). The record

does not affirmatively show that the trial court failed to consider the factors

found R.C. 2929.22(B)(1).

      {¶31} Although the trial court imposed the maximum sentence, in this

case 180 days, the sentence was within the statutory range. As such, we

cannot conclude that the trial court ignored the relevant sentencing factors or

abused its discretion in handing down its sentence. Accordingly, Appellant’s

second assignment of error is overruled and the sentence imposed for the

assault related to Brandon Hardesty is affirmed.
Pickaway App. No. 11CA9                                                      22


      JUDGMENT VACATED IN PART AND AFFIRMED IN PART

Kline, J., concurring.

      {¶32} Because the opinion does not specify a standard of review, I

respectfully concur in judgment only as to the fourth assignment of error.

Here, Picklesimer failed to raise his not-properly-before-the-court argument

at the trial court level. Therefore, I would review Picklesimer’s fourth

assignment of error under a plain-error standard.

      {¶33} I concur in judgment and opinion as to the third assignment of

error with one exception. That is, I do not believe that Picklesimer’s “first-

three arguments” pertain only to the criminal damaging charge and the

assault charge against Lindsey Fee. Therefore, I would address these

arguments in relation to the assault charge against Brandon Hardesty.

      {¶34} I concur in judgment and opinion with the rest of the opinion.
Pickaway App. No. 11CA9                                                              23


                              JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE VACATED IN PART AND
AFFIRMED IN PART and that the Appellee recover of Appellant costs herein
taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the
Circleville Municipal Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion as to A/E I and II, Concurs in
Judgment and Opinion with Opinion as to A/E III, and Concurs in Judgment Only
with Opinion as to A/E IV.

                             For the Court,

                             BY:    _________________________
                                    Matthew W. McFarland, Judge

                             NOTICE TO COUNSEL
       Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
