State v. Ehrenberg , 2023 Ohio 2096 ( 2023 )

[Cite as State v. Ehrenberg, 2023-Ohio-2096.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-22-22
v.
SIMON M. EHRENBERG, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-22-23
v.
SIMON M. EHRENBERG, OPINION
DEFENDANT-APPELLANT.
Appeals from Auglaize County Common Pleas Court
Trial Court Nos. 2022 CR 0048 and 2022 CR 0087
Judgments Affirmed
Date of Decision: June 26, 2023
APPEARANCES:
Aaron D. Lowe for Appellant
Laia Zink for Appellee
Case Nos. 2-22-22 and 2-22-23
MILLER, P.J.
{¶1} Defendant-appellant Simon M. Ehrenberg (“Ehrenberg”) appeals the
September 23, 2022 judgment entries of sentence of the Auglaize County Court of
Common Pleas. For the reasons that follow, we affirm.
Background
{¶2} On April 5, 2022, Ehrenberg was indicted in case number 2022 CR
0048 on a single count of possession of methamphetamine in violation of R.C.
2925.11(A), (C)(1)(a); a fifth-degree felony. On April 14, 2022, Ehrenberg
appeared for arraignment and entered a not guilty plea to the charge. He was
released on his own recognizance.
{¶3} On May 31, 2022, while out on bond in case number 2022 CR 0048,
Ehrenberg was involved in an altercation with his mother that culminated in him
throwing a baseball at her, which struck her shoulder. On June 16, 2022, Ehrenberg
was indicted in case number 2022 CR 0087 with one count of domestic violence in
violation of R.C. 2919.25(A), a third-degree felony. At the arraignment hearing
held the following day, Ehrenberg plead not guilty to the charge.
{¶4} On July 11, 2022, Ehrenberg appeared for a change-of-plea hearing in
the pending cases. Under a negotiated plea agreement, the State requested the trial
court amend the charge in case number 2022 CR 0087 from domestic violence in
violation of R.C. 2919.25(A), (D)(4), a third-degree felony, to domestic violence in
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Case Nos. 2-22-22 and 2-22-23
violation of R.C. 2919.25(A), (D)(3), a fourth-degree felony. In addition, the parties
jointly-recommended community-control sanctions with the condition that
Ehrenberg complete a substance-abuse program at a CBCF. In exchange, Ehrenberg
withdrew his not guilty pleas and entered guilty pleas to the pending charges, as
amended. The trial court accepted Ehrenberg’s guilty pleas, found him guilty of the
offenses, and ordered a pre-sentence investigation (PSI).
{¶5} On September 14, 2022, Ehrenberg was sentenced to 12 months in
prison in case number 2022 CR 0048 and 18 months in prison in case number 2022
CR 0087. The trial court ordered the sentences to run consecutively for an aggregate
sentence of 30 months in prison. The trial court filed its sentencing entries on
September 23, 2022.
{¶6} Ehrenberg filed his notices of appeal on October 14, 2022.
Assignment of Error
The trial court erred when it failed to comply with R.C.
2929.14(C)(4) by sentencing Appellant who had no prior felony
record to maximum consecutive sentences and sentencing
Appellant to more than the maximum term of incarceration for
the most serious criminal charge pending before the court at
sentencing and making findings finding that consecutive
sentences were necessary to protect the public from future crime
or to punish the offender and that consecutive sentences were not
disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public without sufficient
evidence in the record to make such findings.
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Case Nos. 2-22-22 and 2-22-23
{¶7} Ehrenberg argues that the trial court erred by sentencing him to
consecutive sentences because the sentences are not supported by the record. For
the reasons that follow, we disagree.
Standard of Review
{¶8} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Relevant Authority
{¶9} In his assignment of error, Ehrenberg argues that the trial court erred by
imposing consecutive sentences. “Except as provided in * * * division (C) of
section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be
served concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United States.”
R.C. 2929.41(A). R.C. 2929.14(C) provides:
(4) * * * [T]he court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is
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Case Nos. 2-22-22 and 2-22-23
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of
the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶10} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11. Specifically, the trial court must find: (1)
consecutive sentences are necessary to either protect the public or punish the
offender; (2) the sentences would not be disproportionate to the offense committed;
and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.{¶11} The trial court must state the required findings at the sentencing
hearing prior to imposing consecutive sentences and incorporate those findings into
its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-
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Case Nos. 2-22-22 and 2-22-23
4140, ¶ 50, citing State v. Bonnell, 140 Ohio St. 209, 2014-Ohio-3177, ¶ 29. A trial
court “has no obligation to state reasons to support its findings” and is not “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 into the
sentencing entry.” Bonnell at ¶ 37.
Analysis
{¶12} Ehrenberg does not argue that the trial court failed to make the
requisite consecutive-sentencing findings under R.C. 2929.14(C)(4). Rather,
Ehrenberg contends that the record does not support the trial court’s findings.
{¶13} At the sentencing hearing, the trial court stated:
The Court finds that the Defendant committed the [domestic-
violence] offense in 2022-CR-87 on May 31, 2022. The Court notes
that, at the time, he was out on bond in Case 2022-CR-48, so he
committed the second offense while he was awaiting trial in the earlier
case and was out on bond * * * so that [satisfies R.C.
2929.14(C)(4)(a)]. * * * [T]he offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender, the Court finding that
consecutive service is necessary to protect the public from future
crime and to punish the offender, and consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public.
(Sept. 14, 2022 Tr. at 14-15). The trial court memorialized those findings in its
sentencing entry. In its sentencing entry, the trial court stated:
The Court has decided that the offender shall serve the prison terms
consecutively, pursuant to R.C. 2929.14(C)(4), because the court
finds that the consecutive service is necessary to protect the public
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Case Nos. 2-22-22 and 2-22-23
from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public, and the
Court also finds the offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control for a
prior offense and the offender’s history of criminal conduct
demonstrates that the consecutive sentences are necessary to protect
the public from future crime by the offender.
(Case No. 2022 CR 0087, Doc. No. 45). Accordingly, the record reflects the trial
court made the appropriate R.C. 2929.14(C)(4) findings before imposing
consecutive sentences and incorporated those findings into its sentencing entry.
{¶14} Despite his acknowledgement that the trial court made the required
statutory findings, Ehrenberg contends that the findings are not supported by the
record. Specifically, Ehrenberg challenges the trial court’s determination that his
domestic-violence conviction constituted the “worst form of the offense.”
{¶15} First, we note that, in his appellate brief, Ehrenberg erroneously states
that R.C. 2929.14 mandates that maximum consecutive sentences are reserved for
the worst forms of the offense. (Appellant’s Brief at 6). Moreover, contrary to
Ehrenberg’s assertion, the trial court is not required to give findings prior to
imposing a maximum sentence. The requirement that the trial court make certain
findings prior to imposing a maximum sentence was removed by the Supreme Court
of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, and has not been
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Case Nos. 2-22-22 and 2-22-23
revived by the legislature. State v. Maddox, 8th Dist. Cuyahoga No. 105140, 2017-
Ohio-8061, ¶ 30.
{¶16} However, to the extent Ehrenberg is attempting to argue that his
consecutive sentences are disproportionate to the offenses he committed, this
argument is unavailing. Ehrenberg’s disproportionality argument focuses chiefly
on his domestic-violence conviction. Ehrenberg argues that because he threw a
baseball at his mother, striking her shoulder, rather than striking her with his fist or
a weapon, his conduct was less serious. (Appellant’s Brief at 8-9). Ehrenberg also
argues his conduct was less serious because his two prior domestic-violence
convictions were the result of verbal assaults, rather than physical violence.
{¶17} However, a review of the record reveals that the trial court supported
its findings that consecutive sentences were not disproportionate to the offense
committed. First, contrary to Ehrenberg’s argument that his prior convictions were
based on verbal assaults, the PSI indicates that one of Ehrenberg’s prior domestic-
violence convictions was the result of Ehrenberg punching his brother in the face
and the other was the result of Ehrenberg threatening to “beat up” his mother and
pushing her into the wall. (PSI). Additionally, although the State originally agreed
to jointly recommend community-control sanctions, at the sentencing hearing, the
State indicated that, due to recent allegations that Ehrenberg was involved in a
situation where drugs were brought into the jail, the State was “concerned” about
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Case Nos. 2-22-22 and 2-22-23
his ability to cooperate with community-control sanctions, particularly completion
of a program at a CBCF. (Sept. 14, 2022 Tr. at 4-5). Moreover, Ehrenberg’s prior
failure to complete court-ordered anger-management programming, which resulted
in two separate probation violations, cast into doubt Ehrenberg’s amenability to
community-control sanctions. Furthermore, his former supervising officer
informed the PSI writer that Ehrenberg was so non-compliant during his former
supervision that, in her opinion, supervising him was “absolutely pointless.” (PSI).
Therefore, we find the trial court did not err by finding that consecutive sentences
were appropriate.
{¶18} Accordingly, Ehrenberg’s assignment of error is overruled.
Conclusion
{¶19} For the foregoing reasons, Ehrenberg’s assignment of error is
overruled. Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgments of the Auglaize County
Court of Common Pleas.
Judgments Affirmed
WILLAMOWSKI and WALDICK, J.J., concur.
/jlr
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