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State v. Nienberg

Court of Appeals of Ohio, Third District, Putnam

May 22, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
STEVEN J. NIENBERG, DEFENDANT-APPELLANT. STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
STEVEN J. NIENBERG, DEFENDANT-APPELLANT.

         Appeals from Putnam County Common Pleas Court Trial Court Nos. 2016CR00059 and 2016CR00027

          Heather S. Kocher for Appellant.

          Lillian R. Shun for Appellee.

          OPINION

          PRESTON, P.J.

         {¶1} Defendant-appellant, Steven J. Nienberg ("Nienberg"), appeals the November 23, 2016 judgment entries of sentence of the Putnam County Court of Common Pleas. For the reasons that follow, we affirm.

         {¶2} This case stems from a February 19, 2016 bar fight at Wibby's Bar in Kalida, Ohio at which it was alleged that Nienberg and Nienberg's co-defendant, Kevin Arnone, assaulted three patrons of Wibby's Bar. (Case No. 16CR27, Doc. No. 20). On March 17, 2016, the Putnam County Grand Jury indicted Nienberg on one count of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony. (Case No. 16CR27, Doc. No. 1). The case was assigned case number 16CR27. (Id.). On March 22, 2016, Nienberg appeared for arraignment and entered a plea of not guilty. (Case No. 16CR27, Doc. Nos. 8, 16).

         {¶3} While case number 16CR27 was pending, Nienberg was allegedly involved in another bar fight on August 6, 2016 at Legends Bar in Ottawa, Ohio. (See Case No. 16CR27, Doc. No. 39); (PSI at 5). In that incident, it was alleged that Nienberg and co-defendant, Danielle Broussard ("Danielle"), -Nienberg's girlfriend-assaulted three victims. (See Case No. 16CR27, Doc. No. 39). As a result of the second altercation, on August 15, 2016, the Putnam County Grand Jury indicted Nienberg on two counts of felonious assault in violation of R.C. 2903.11(A)(1), second-degree felonies. (Case No. 16CR59, Doc. No. 1). That case was assigned case number 16CR59. (Id.). On August 16, 2016, Nienberg appeared for arraignment and entered pleas of not guilty. (Case No. 16CR59, Doc. Nos. 8, 12).

         {¶4} On October 20, 2016, pursuant to a negotiated plea agreement, Nienberg withdrew his pleas of not guilty and entered pleas of guilty to an amended count in case number 16CR27 and Count Two in case number 16CR59. (Case No. 16CR27, Doc. No. 79);(Case No. 16CR59, Doc. No. 69); (Oct. 20, 2016 Tr. at 4). In exchange for his change of pleas, the State agreed to amend the count in case number 16CR27 to attempted felonious assault in violation of R.C. 2903.11(A)(1) and 2923.02, a third-degree felony, and to dismiss Count One in case number 16CR59. (Id.); (Id.); (Id.). The trial court amended the count in case number 16CR27, accepted Nienberg's guilty pleas, found him guilty, and ordered a presentence investigation ("PSI"). (Id.); (Id.); (Id. at 5-15).

         {¶5} On November 22, 2016, the trial court sentenced Nienberg to 36 months in prison in case number 16CR27 and six years in prison in case number 16CR59. (Case No. 16CR27, Doc. No. 86); (Case No. 16CR59, Doc. No. 76); (Nov. 22, 2016 Tr. at 10). The trial court further ordered that the sentences be served consecutively for a cumulative term of nine years in prison. (Case No. 16CR59, Doc. No. 76); (Nov. 22, 2016 Tr. at 9-10). The trial court filed its judgment entries of sentence on November 23, 2016. (Case No. 16CR27, Doc. No. 86); (Case No. 16CR59, Doc. No. 76).

         {¶6} On December 15, 2016, Nienberg filed his notices of appeal. (Case No. 16CR27, Doc. No. 90); (Case No. 16CR59, Doc. No. 80). He raises one assignment of error for our review.

         Assignment of Error

         The trial court below committed error prejudicial to Defendant by failing to properly follow the sentencing criteria set forth in Ohio Revised Code, Section 2929 resulting in Defendant/Appellant receiving a sentence which is contrary to law.

         {¶7} In his assignment of error, Nienberg challenges the sentences imposed in both cases and challenges the trial court's order that he serve the sentences consecutively. In particular, he argues that there is clear and convincing evidence that the record does not support the trial court's findings and that his sentence is otherwise contrary to law because "[t]he sentence imposed by the [trial c]ourt is not commensurate with Mr. Nienberg's conduct and is not consistent with the purpose [sic] and principles of felony sentencing" and because "Mr. Nienberg poses no threat to the public or the victims involved in the cases in which he was convicted." (Appellant's Brief at 7).

         {¶8} Under R.C. 2953.08(G)(2), an appellate court will 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, ΒΆ 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 ...


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