[Cite as State v. Powell, 2019-Ohio-2061.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.      18CA0048-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CLARENCE E. POWELL, JR.                               MEDINA MUNICIPAL COURT
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   18CRB0146

                                  DECISION AND JOURNAL ENTRY

Dated: May 28, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Clarence E. Powell Jr., appeals from the judgment of the Medina

Municipal Court. This Court affirms.

                                                 I.

        {¶2}     Medina City Police stopped Mr. Powell’s vehicle after observing him roll through

a stop sign. He was arrested for driving under suspension (“DUS”), failure to reinstate his

license, and failure to stop at a stop sign. During booking, an agent of the Medina County Drug

Task Force advised police to also charge Mr. Powell with criminal trespass, as he had been

observed earlier in the Union Square Apartment complex. Mr. Powell was banned from the

complex over twenty years ago.

        {¶3}     Mr. Powell pled guilty to DUS, while the failure to reinstate his license and

failure to stop at a stop sign charges were dismissed. He also pled no contest to criminal trespass

and was found guilty. A pre-sentence investigation report (“PSI”) was ordered, and the trial
                                                  2


court later sentenced him to time served for the DUS and thirty days in jail for criminal trespass.

He sought and received a stay of the execution of his sentence in the trial court pending appeal.

       {¶4}    Mr. Powell now appeals from the trial court’s judgment and raises one assignment

of error for this Court’s review. He also moved this Court to supplement the record with a copy

of the PSI, and the State did not respond in opposition.

                                                  II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       SENTENCING DEFENDANT-APPELLANT TO THE MAXIMUM JAIL
       TERM OF THIRTY DAYS, WITHOUT CONSIDERATION OF ALL OF THE
       SENTENCING FACTORS UNDER R.C. 2929.22.

       {¶5}    In his sole assignment of error, Mr. Powell argues that the trial court erred by

failing to consider the factors in R.C. 2929.22 before sentencing him to the maximum jail term of

thirty days for criminal trespass. We disagree.

       {¶6}    This Court has held that abuse of discretion is the proper standard of review:

       Generally, misdemeanor sentencing is within the sound discretion of the trial
       court and will not be disturbed upon review if the sentence is within the limits of
       the applicable statute. However, it is well recognized that a trial court abuses its
       discretion when, in imposing a sentence for a misdemeanor, it fails to consider the
       factors set forth in R.C. 2929.22.

State v. Seidowsky, 9th Dist. Medina No. 13CA0037-M, 2015-Ohio-4311, ¶ 6, quoting State v.

Endress, 9th Dist. Medina No. 08CA0011-M, 2008-Ohio-4498, ¶ 3, quoting State v. Smith, 9th

Dist. Wayne No. 05CA0006, 2006-Ohio-1558, ¶ 21. See also State v. Jones, 9th Dist. Wayne

No. 02CA0018, 2003-Ohio-20. “The term ‘abuse of discretion’ connotes more than an error of

law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion
                                                 3


standard, a reviewing court is precluded from simply substituting its own judgment for that of the

trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶7}    Mr. Powell argues that “there is no indication in the record that the trial court

considered any of the sentencing factors under R.C. 2929.22, other than [his] age and prior

criminal record.” However, “[a] trial court is presumed to have considered the factors set forth

in R.C. 2929.22 ‘absent an affirmative showing to the contrary.’” Seidowsky at ¶ 6, quoting

Endress at ¶ 4, quoting Smith at ¶ 21. “‘The burden of demonstrating this error falls to the

appellant.’” Id., quoting Endress at ¶ 4, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199 (1980). Mr. Powell has not directed us to anything in the record indicating the trial

court failed to consider the R.C. 2929.22 sentencing factors, and our review of the record

likewise reveals no “affirmative showing” that the court failed to consider the sentencing factors.

See Seidowsky at ¶ 6.

       {¶8}    Mr. Powell also argues that the “PSI [] makes it clear that this was not the worst

form of the offense” and he “took responsibility for his actions by pleading ‘no contest’ * * *.”

However, courts may impose maximum sentences for misdemeanors not only upon offenders

who commit the worst forms of the offense, but also upon offenders “whose conduct and

response to prior sanctions for prior offenses demonstrate that the imposition of the longest jail

term is necessary to deter the offender from committing a future crime.” R.C. 2929.22(C). At

Mr. Powell’s sentencing hearing, the trial court expressed serious concern over his extensive

criminal history listed in the PSI, which included over a dozen other cases, multiple prison terms,

and both parole and community control/probation violations. When considering Mr. Powell’s

conduct and response to prior sanctions for prior offenses, and absent any indication that the trial

court failed to consider the R.C. 2929.22 sentencing factors, we cannot conclude that the trial
                                                 4


court erred or abused its discretion in sentencing him to the maximum thirty days in jail for the

offense of criminal trespass.

       {¶9}    Mr. Powell’s assignment of error is overruled.

                                                III.

       {¶10} Mr. Powell’s assignment of error is overruled. The judgment of the Medina

Municipal Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
                                          5


HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

GREGORY HUBER and ROBERT B. CAMPBELL, Prosecuting Attorneys, for Appellee.
