State v. Horr , 2022 Ohio 3160 ( 2022 )

[Cite as State v. Horr, 2022-Ohio-3160.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29391
:
v. : Trial Court Case No. 2021-CRB-851
:
JAMES HORR : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of September, 2022.
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NOLAN C. THOMAS, Atty. Reg. No. 0078255, Prosecuting Attorney, City of Kettering
Prosecutor’s Office, 2325 Wilmington Pike, Kettering, Ohio 45420
Attorney for Plaintiff-Appellee
AMY E. BAILEY, Atty. Reg. No. 0088397, Ferguson Law Office, LLC, 130 West Second
Street, Suite 2100, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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LEWIS, J.
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{¶ 1} Defendant-Appellant James Horr appeals from the Kettering Municipal
Court’s judgment convicting him, after his no contest plea, of one count of criminal
trespassing, a misdemeanor of the fourth degree. On appeal, Horr challenges his
sentence of 30 days in jail with 27 days suspended, arguing that the trial court abused its
discretion in sentencing him to any jail time. For the reasons that follow, the judgment
of the trial court is affirmed.
I. Facts and Procedural History
{¶ 2} According to the presentence investigation report (“PSI”), at approximately
11:55 a.m. on June 26, 2021, Kettering police officers were dispatched to the post office
at 1490 Forrer Boulevard on a report of a person present who had been previously
trespassed from the premises. When officers arrived, they found Horr videotaping the
post office grounds from the sidewalk. It was later learned that Horr had been inside the
post office and in the driveway prior to the arrival of the police. During the encounter,
Horr was very disrespectful. Horr recorded the encounter, which he then posted on
YouTube, an internet website. Horr was not arrested and was served a summons.
{¶ 3} Horr was charged with one count of criminal trespassing, in violation of R.C.
2911.21, a misdemeanor of the fourth degree. On October 13, 2021, Horr entered a
negotiated plea agreement wherein he agreed to plead no contest to the instant charge
and the State agreed to dismiss a separate charge of criminal trespass in Kettering M.C.
Case No. 2021-CRB-1291. There was no agreement as to sentencing. Upon accepting
Horr’s plea and finding Horr guilty, the trial court ordered a PSI. At sentencing, the trial
court imposed 30 days of jail with 27 days suspended, a $250 fine with $150 suspended,
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two years of supervised probation with no new offenses, a requirement to stay off the
premises of the Forrer Boulevard Post Office branch, and completion of a mental health
assessment with follow up treatment if recommended. At Horr’s request, his sentence
was stayed pending appeal.
II. Sentencing
{¶ 4} In his sole assignment of error, Horr claims that the trial court abused its
discretion in imposing jail time.
{¶ 5} “A trial court that imposes a sentence for a misdemeanor has discretion to
determine the most effective way to achieve the purposes and principles of misdemeanor
sentencing, which are to protect the public from future crime by the offender and to punish
the offender.” State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d
372, ¶ 9 (2d Dist.), citing R.C. 2929.21(A) and 2929.22(A). “To achieve those purposes,
the sentencing court [must] 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). The trial court's sentence must be “reasonably calculated to achieve the
two overriding purposes of misdemeanor sentencing * * *, commensurate with and not
demeaning to the seriousness of the offender's conduct and its impact upon the victim,
and consistent with sentences imposed for similar offenses committed by similar
offenders.” R.C. 2929.21(B). Unless a mandatory jail term or specific sanction is
required to be imposed, a trial court has discretion to determine the most effective way to
achieve the purposes and principles of misdemeanor sentencing, which may include any
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sanction or combination of sanctions authorized. R.C. 2929.22(A).
{¶ 6} In determining the appropriate sentence for a misdemeanor, the trial court
must consider the following factors in addition to any other factors relevant to achieving
the purposes and principles of misdemeanor sentencing:
(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;
(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;
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(f) Whether the offender has an emotional, mental, or physical condition that
is traceable to the offender's service in the armed forces of the United States
and that was a contributing factor in the offender's commission of the
offense or offenses;
(g) The offender's military service record.
R.C. 2929.22(B)(1)(a)-(g).
{¶ 7} “[A] trial court is not required to discuss the R.C. 2929.22 considerations on
the record or make explicit findings to support its misdemeanor sentence.” State v.
Jackson, 2d Dist. Montgomery No. 20819, 2005-Ohio-4521, ¶ 13. When a misdemeanor
sentence is imposed within the statutory limits, reviewing courts will presume that the trial
court considered the factors set forth in R.C. 2929.22 absent an affirmative showing to
the contrary. Id.{¶ 8} We review misdemeanor sentences for an abuse of discretion. State v.
Johnson, 2d Dist. Montgomery No. 29336, 2022-Ohio-1782, ¶ 14. An abuse of
discretion implies an attitude that is unreasonable, arbitrary or unconscionable. AAAA
Ents., Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990).
{¶ 9} The PSI reflects that at the time of sentencing, Horr was 53 years old, had
been other than honorably discharged from the Navy, and had no reported substance
abuse issues or mental health history. Prior to his sentence in this case, Horr did not
have any known prior criminal convictions, although he did have two prior convictions for
driving under suspension. He had been charged with a separate criminal trespass
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offense in Kettering Municipal Court, which was alleged to have occurred after the instant
offense; however, that case was dismissed as part of the plea negotiations. The PSI
also reflected that an active protection order had been issued against Horr through the
Montgomery County Common Pleas Court.
{¶ 10} At sentencing, the trial court stated that it had reviewed the PSI and the
State’s sentencing memorandum. Both defense counsel and Horr offered statements in
mitigation as well. Additionally, the trial court considered a video of the event that led to
the charges, which had been posted online by Horr. The video was not introduced into
evidence, but the State included a link to the video in its sentencing memorandum.
{¶ 11} The trial court explicitly stated that it had considered R.C. 2929.22 and the
purposes and principles of misdemeanor sentencing. During the course of the hearing,
the trial court acknowledged that it was required to consider whether Horr was likely to
reoffend or if he posed a danger to the community. According to the State’s sentencing
memorandum, on June 23, 2021, Horr was trespassed from the Forrer Boulevard Post
Office after frightening employees and disrupting operations. Only three days later, the
incident in the underlying case occurred, which Horr posted to YouTube. In the video,
Horr berated and insulted the officers, calling them names and making derogatory
comments.
{¶ 12} In contrast, Horr claimed he had been “polite and respectful” but admitted
that he had been “belligerent” while on the sidewalk. He also stated that he “can speak
to the police however I feel I need to speak to them,” primarily because he did not think
he was doing anything wrong. Sentencing Tr. 6; PSI.
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{¶ 13} Considering the nature and circumstances of the offense, as is required
under R.C. 2929.22(B)(1)(a), the trial court asserted that while a trespass offense is a
relatively minor offense, Horr “did everything in [his] power to make it a lot more of a big
deal[.]” Sentencing Tr. 5. According to the trial court, what Horr did was “spen[d] the
better part of twelve to fifteen minutes trying [his] best to taunt the police, to get them to
engage with [him], to get them to lose their temper, to maybe provoke them into
something.” Id. at 6. The trial court concluded that based on his actions, Horr was
probably obstructing the police in the performance of their duties; although not charged
with that offense, Horr had no respect for the law, and his behavior in this case made it
“not an ordinary Criminal Trespass.” Sentencing Tr. 8-9. The trial court further noted
that Horr had “acknowledged absolutely no responsibility for [his] conduct in this case.”
Sentencing Tr. 10.
{¶ 14} Although Horr had no known prior criminal history, the significance of his
offense and his ensuing actions were readily apparent. We also note that as part of his
plea agreement, the State dismissed yet another charge of criminal trespass that was
alleged to have occurred after the incident in this case. The trial court could have
reasonably concluded that the “nature and circumstances of the offense” weighed in favor
of imposing a term of imprisonment and that the sentence imposed was consistent with
the need “to protect the public from future crime by the offender and others and to punish
the offender.”
{¶ 15} Upon review of the record, we cannot conclude that the trial court’s
imposition of jail time was an abuse of discretion. The record reflects that the trial court
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considered the appropriate sentencing statutes and imposed a sentence within the
applicable sentencing range authorized by R.C. 2929.24(A)(4) for a fourth-degree
misdemeanor. Accordingly, Horr’s assignment of error is overruled.
III. Conclusion
{¶ 16} Having overruled Horr’s assignment of error, the trial court’s judgment is
affirmed.
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WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Nolan C. Thomas
John D. Everett
Amy E. Bailey
Hon. Frederick W. Dressel