[Cite as State v. Nugent, 2014-Ohio-3848.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 13 CA 30
THOMAS NUGENT

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Guernsey County Court of
                                               Common Pleas, Case No. 13CR62


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 3, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


DANIEL G. PADDEN                               LINDSEY K. DONEHUE
Prosecuting Attorney                           120 Southgate Parkway
139 West 8th Street                            P.O. Box 464
P.O. Box 640                                   Cambridge, Ohio 43725
Cambridge, Ohio 43725
Guernsey County, Case No. 13 CA 30                                                          2

Hoffman, P.J.


         {¶1}   Defendant-appellant Thomas Nugent appeals his sentence entered by the

Guernsey County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   Following a trial to the bench in the Guernsey County Court of Common

Pleas, Appellant was convicted of one count of vehicular homicide, a misdemeanor of

the first degree, in violation of R.C 2903.06(A)(2).; one count of tampering with

evidence, a felony of the third degree, in violation of R.C. 2921.12; failure to stop after

an accident, a felony of the third degree, in violation of R.C. 4549.02; and an assured

clear distance/speed limit, a minor misdemeanor, in violation of R.C. 4511.21(A).

         {¶3}   At the September 4, 2013 sentencing hearing, the trial court sentenced

Appellant to six months in the Guernsey County Jail on the vehicular homicide count;

three years imprisonment for the vehicular homicide count; three years imprisonment for

the tampering with evidence count; three years imprisonment for the failure to stop at an

accident count, and a fine of $150.00 for the traffic violation. The three year terms of

imprisonment were ordered to be served consecutively, but concurrent with the six

month jail sentence for a total term of imprisonment of 72 months.             Appellant was

further ordered to pay costs and restitution.

         {¶4}   Appellant appeals, assigning as error:

         {¶5}   "I. THE TRIAL COURT COMMITTED ERROR WHEN IT ABUSED ITS

DISCRETION         AND     SENTENCED        APPELLANT       TO    THE    MAXIMUM       TERM

PERMITTED BY LAW.

1
    A rendition of the underlying facts is unnecessary for the resolution of this appeal.
Guernsey County, Case No. 13 CA 30                                                      3


      {¶6}   "II. THE TRIAL COURT COMMITTED ERROR WHEN IT ABUSED ITS

DISCRETION AND ORDERED CONSECUTIVE SENTENCES ABSENT A FINDING

THAT CONSECUTIVE SENTENCES WERE NOT DISPROPORTIONATE TO THE

SERIOUSNESS OF APPELLANT'S CONDUCT."

                                                I

      {¶7}   In the first assigned error, Appellant maintains the trial court erred in

sentencing him to the maximum term provided by law.

      {¶8}   In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,

the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1,

2006–Ohio–856, 845 N.E.2d 470, as it relates to appellate review of felony sentencing.

The Court stated, “an appellate court remains precluded from using an abuse-of-

discretion standard of review when initially reviewing a defendant's sentence” and must

instead “ensure that the trial court has adhered to all applicable rules and statutes in

imposing the sentence. As a purely legal question, this is subject to review only to

determine whether it is clearly and convincingly contrary to law, the standard found in

R.C. 2953.08(G).” Id.

      {¶9}   When reviewing a felony sentence, an appellate court must first review the

sentence to ensure the sentencing court clearly and convincingly complied with the

applicable laws. Id. A trial court's sentence would be contrary to law if, for example, it

were outside the statutory range, in contravention to a statute, or decided pursuant to

an unconstitutional statute. Id. In Kalish, the Supreme Court held the trial court's

decision was not contrary to law when the trial court expressly stated it considered the

purposes and principles of R.C. 2929.11, the factors listed in R.C. 2929.12, properly
Guernsey County, Case No. 13 CA 30                                                        4

applied post-release control, and the sentence was within the permissible range. Kalish

at ¶ 18.

       {¶10} If this inquiry is satisfied, an appellate court then reviews the trial court's

sentencing decision for abuse of discretion. Id. In order to find an abuse of discretion,

we must determine the trial court's decision was unreasonable, arbitrary, or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶11} Here, Appellant's sentence is within the statutory range for felonies of the

third degree. We find the trial court did not abuse its discretion in sentencing Appellant

to the maximum prison term based upon his criminal history and the facts demonstrated

in the record as set forth in the transcript of the sentencing hearing.

       {¶12} The first assignment of error is overruled.

                                                 II.

       {¶13} In the second assignment of error, Appellant asserts the trial court erred in

sentencing him to consecutive sentences.

       {¶14} The Ohio Supreme Court recently addressed the requirements for a trial

court to impose consecutive sentences in State v. Bonnell, 2014 Ohio 3177, holding,

       {¶15} "When imposing consecutive sentences, a trial court must state the

required findings as part of the sentencing hearing, and by doing so it affords notice to

the offender and to defense counsel. See Crim.R. 32(A)(4). And because a court

speaks through its journal, State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863

N.E.2d 1024, ¶ 47, the court should also incorporate its statutory findings into the

sentencing entry. However, a word-for-word recitation of the language of the statute is
Guernsey County, Case No. 13 CA 30                                                         5


not required, and as long as the reviewing court can discern that the trial court engaged

in the correct analysis and can determine that the record contains evidence to support

the findings, consecutive sentences should be upheld.

       {¶16} "****

       {¶17} "In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no obligation to

state reasons to support its findings. Nor is it required to give a talismanic incantation of

the words of the statute, provided that the necessary findings can be found in the record

and are incorporated in the sentencing entry." Bonnell, supra at ¶29-37.

       {¶18} The Court stated in Bonnell,

       {¶19} "In this case, the trial court had obviously reviewed the presentence-

investigation report and knew of Bonnell's criminal record, because it described his

record as atrocious and stated that he had shown very little respect for society. But the

court did not completely adhere to R.C. 2929.14(C)(4).

       {¶20} "We can discern from the trial court's statement that Bonnell had 'shown

very little respect for society and the rules of society' that it found a need to protect the

public from future crime or to punish Bonnell. We also can conclude that the court found

that Bonnell's 'atrocious' record related to a history of criminal conduct that

demonstrated the need for consecutive sentences to protect the public from future

crime. But it never addressed the proportionality of consecutive sentences to the

seriousness of Bonnell's conduct and the danger he posed to the public, which in this
Guernsey County, Case No. 13 CA 30                                                      6


case involved an aggregate sentence of 8 years and 5 months in prison for taking $117

in change from vending machines." Bonnell at ¶32-33.

       {¶21} In the case sub judice, the record of the September 4, 2013 Sentencing

Hearing indicates the trial court stated,

       {¶22} "The Court turns now to the duty of pronouncing the sentence of

incarceration. Here, the Court finds for Count 1, aggravated vehicular homicide, which

is a misdemeanor of the first degree, 180 days in jail. The Court finds for Count 3,

tampering with evidence, a felony of the third degree, on the facts of this case that a

sentence of 36 months of imprisonment is appropriate.

       {¶23} "The Court finds as to the failing to stop after an accident, the sentence

should be 36 months of imprisonment, the Court finds that under Ohio law, these

sentences should be served consecutively, as the Court finds the harm is so great or

unusual, a death, that a single term does not adequately reflect the seriousness of the

conduct. And the criminal history of Thomas Nugent shows that consecutive terms are

needed to protect the public. If released on the facts of this case, the public would face

the very real possibility he simply would drink and drive again to cause harm, damage to

others. It is the duty of the Court to punish the offender and protect the public from

future crime.

       {¶24} "The Court finds that I'm not unmindful of the argument made by the

attorney for the defendant that a consecutive sentence of 72 months must be compared

with other sentences. The other crimes to which the other individuals the attorney for

the defendant referred to, they were not the ultimate actor. Here, Mr. Nugent is the

ultimate actor. The Court further finds that no sentence, no matter how long or how
Guernsey County, Case No. 13 CA 30                                                  7


severe, can return the life, the young man whose life has been taken, the other young

man who has received serious physical harm. It's the Court's duty, however, to protect

the public from future crime. The court finds against the 72 month sentence that is

imposed, and the sentence as to assured clear distance is $150 fine."

      {¶25} Tr. at 69-70.

      {¶26} We find the trial court's statement is sufficient under Bonnell, supra, to

support its imposition of conviction sentences.

      {¶27} The second assignment of error is overruled.

      {¶28} Appellant's sentence in the Guernsey County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur
