Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeal from the Lake County Court of Common Pleas,
Case No. 2017 CR 000056.
Charles E. Coulson, Lake County Prosecutor, and Jennifer A.
McGee, Assistant Prosecutor, (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and
Vanessa R. Clapp, Assistant Public Defender, (For
V. GRENDELL, J.
Defendant-appellant, James R. Noggy, appeals from the
Judgment Entry of Sentence of the Lake County Court of Common
Pleas, ordering him to serve a term of three years in prison
for Attempted Felonious Assault. The issue to be determined
in this case is whether such a sentence is contrary to law
when the court determined that multiple R.C. 2929.12(B)
factors applied, indicating the defendant's conduct in
committing the offense was more serious than conduct
typically constituting the offense. For the following
reasons, we affirm the judgment of the lower court.
On June 16, 2017, Noggy was indicted by the Lake County Grand
Jury for Felonious Assault, a felony of the second degree, in
violation of R.C. 2903.11(A)(1).
At a September 7, 2017 plea hearing, Noggy entered a plea of
guilty to the lesser included offense of Attempted Felonious
Assault, a felony of the third degree, in violation of R.C.
2923.02(A) and 2903.11(A)(1). Pursuant to the State, it would
have proven at trial that Noggy assaulted his former
girlfriend, Kelly Hillier, by punching and striking her.
Hillier suffered a subdural hematoma (bleeding between the
skull and brain), concussion, and a break in her jaw. Noggy
admitted to pushing Hillier and causing her to fall over the
couch, but denied punching her. The guilty plea was accepted
by the trial court and memorialized in a September 8, 2017
A sentencing hearing was held on October 19, 2017.
Noggy's counsel argued that the case resulted from
"a very toxic relationship, " explained that Noggy
"takes responsibility for his actions here, " and
that he is moving forward in a "positive
direction." He described that Noggy has been sober and
is employed and would pay restitution. Noggy stated that he
was "very sorry for what [he] did, " explaining
that he hurt Hillier when he pushed her, although he
"didn't mean to do it."
The State recommended a sentence of four years of community
control and noted the need for restitution given the
extensive amount of medical treatment required. Several
family members, including Hillier's ex-husband, two
children, and her father, noted a history of violence by
Noggy against Hillier during their relationship. They also
opined that this had a negative impact on Hillier, causing
her to suffer fear and anxiety. Kelly Hillier stated that she
has had nightmares since the assault and that it had been
"the worst 10 months of [her] life." She believed
she would die when Noggy assaulted her.
The court stated that it had reviewed the presentence
investigation report (PSI) and considered the purposes and
principles of sentencing. It found that the victim suffered
serious physical, psychological, and economic harm, her
"mental condition" was exacerbated by the assault,
the defendant's relationship with her facilitated the
offense, and he "appeared to be motivated by prejudice
against her gender." It found no genuine remorse was
expressed. The court ordered Noggy to serve a term of three
years in prison and pay restitution. The sentence was
memorialized in an October 23, 2017 Judgment Entry of
Noggy timely appeals and raises the following assignment of
"The trial court erred by sentencing the
defendant-appellant to a maximum, thirty-six-month prison
The standard of review for felony sentences is provided by
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9-23. "The
court hearing an appeal [of a felony sentence] shall review
the record, including the findings underlying the sentence or
modification given by the sentencing court." R.C.
2953.08(G)(2). "Applying the plain language of R.C.
2953.08(G)(2), * * * an appellate court may vacate or modify
a felony sentence on appeal 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."
Marcum at ¶ 1.
Noggy argues that the trial court erred in sentencing him to
a prison term of three years since its R.C. 2929.12 findings