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State v. Noggy

Court of Appeals of Ohio, Eleventh District, Lake

June 18, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES R. NOGGY, Defendant-Appellant.

          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 Defendant-Appellant).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} 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.

         {¶2} 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).

         {¶3} 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 Judgment Entry.

         {¶4} 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."

         {¶5} 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.

         {¶6} 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 Sentence.

         {¶7} Noggy timely appeals and raises the following assignment of error:

         {¶8} "The trial court erred by sentencing the defendant-appellant to a maximum, thirty-six-month prison term."

         {¶9} 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.

         {¶10} Noggy argues that the trial court erred in sentencing him to a prison term of three years since its R.C. 2929.12 findings were ...


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