Court of Appeals of Ohio, Fifth District, Ashland
from the Ashland County Court of Common Pleas, Case No.
PLAINTIFF-APPELLEE: CHRISTOPHER R. TUNNELL, ASHLAND CO.
PROSECUTOR, VICTOR R. PEREZ
DEFENDANT-APPELLANT: BRIAN A. SMITH
W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Earle
E. Wise, Jr., J. JUDGES.
Appellant Daniel Kusmisz, Jr. appeals from the August 15,
2017 Judgment Entry-Sentencing of the Ashland County Court of
Common Pleas. Appellee is the state of Ohio.
AND PROCEDURAL HISTORY
The following facts are adduced in part from the pre-sentence
investigation (P.S.I.) prepared upon order of the trial court
and filed under seal for our review.
Appellant is 58 years old and confined to a wheelchair due to
physical disabilities. Appellant has an adult criminal record
dating to 1986 which includes felony convictions and prison
terms, most recently in 2013, for convictions including
aggravated drug trafficking.
In the instant case, appellant admittedly paid a woman to
come to his house, undress, and wash his dishes. T.6. In
exchange for allowing him to watch her wash dishes unclothed,
appellant "shared his medication" with her, the
medication being a fentanyl patch. The woman overdosed and
appellant called 911.
Subsequent investigation led to appellant's charges in
the instant case: Count I, aggravated drug trafficking
(fentanyl) pursuant to R.C. 2925.03(A)(1), a felony of the
third degree, and Count II, tampering with evidence pursuant
to R.C. 2921.12(A)(1), also a felony of the third degree.
Appellant agreed to enter a plea of guilty to Count I in
exchange for appellee dismissing Count II. The trial court
ordered preparation of the P.S.I. and appellant returned for
sentencing on August 14, 2017. On the record at the
sentencing hearing, the trial court noted appellant's
criminal history; the organized criminal activity involved in
the exchange between appellant and the woman; and
appellant's lack of remorse. The trial court observed
that appellant's most recent prison term in 2013 was
imposed for drug trafficking offenses.
The trial court sentenced appellant to a prison term of 24
months. Appellant now appeals from the trial court's