[Cite as State v. Viers, 2022-Ohio-4083.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff- Appellee, :

No. 111303

v. :

NICHOLAS VIERS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 17, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-651437-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Jennifer Driscoll and Carl Felice, Assistant 

Prosecuting Attorneys, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Jonathan Sidney, Assistant Public Defender, for 

appellant.
MICHELLE J. SHEEHAN, J.:

Defendant-appellant, Nicholas Viers, appeals the trial court’s order 

imposing consecutive sentences for two counts of endangering children. He argues 

consecutive sentences are not warranted because of his limited criminal history and 

the trial court failed to assign weight to the mitigating factors presented by the 

defense. After a careful review of the record and applicable law, we affirm the trial 

court’s judgment.

On June 27, 2020, Viers, age 19, was the primary caretaker for the 

victim, his three-month-old biological daughter. On that day, the police received a 

call from a hospital reporting a baby had sustained head injuries consistent with 

shaken baby syndrome. The presentence-investigation report (“PSI”) indicates that, 

when Viers brought the baby to the hospital, she was in critical condition; a social 

worker told the police that the baby had a “subdural hematoma with shift,” which, 

as the social worker described, “means the baby had blood in the brain.” The doctor 

treating the baby stated, “it looks like a shake injury.” The doctors had to remove a 

piece of the baby’s skull to relieve the pressure in her head, and she was required to 

wear a helmet for a period of time after the hospital stay.

Following the police investigation of the incident, the grand jury 

indicted Viers for four counts of endangering children (Counts 1 through 4) in 

violation of R.C. 2919.22(B)(1), second-degree felonies, and one count of 

endangering children (Count 5) in violation of R.C. 2919.22(A), a third-degree 

felony. Count 1 specifies the offense resulted in serious physical harm: “brain 
bleeds”; Count 2: “broken ribs”; Count 3: “failure to thrive”; Count 4: “bruises all 

over the body”; and Count 5: “medical neglect.” Under a plea agreement, Viers 

pleaded guilty to reduced charges of endangering children, both third-degree 

felonies in violation of R.C. 2919.22(A), in Counts 1 and 2.

1

 The remaining counts 

were nolled. 

At sentencing, the state reported that it learned from the prosecutor for 

the Cuyahoga Division of Children and Family Services that the victim still had 

difficulties with the left side of her body, possibly due to a stroke that she suffered in 

the incident. While able to walk, her gait was uneven and she had difficulties holding 

objects in her left hand. The state also reported that, as indicated by the medical 

records, there was a significant lifetime risk of “dysfunctional pituitary signals for 

growth,” kidney disfunction, and problems with the circulation of blood. The state 

reported that the victim had also sustained rib fractures, which she was healing from 

at the time of the incident, and she also suffered from malnourishment and 

dehydration. 

The state additionally reported that when Viers was questioned by the 

detectives regarding his daughter’s injuries at the hospital, he acted aggressively in 

a physical manner towards the detectives and was arrested by the hospital police.

1R.C. 2919.22(B)(1) prohibits the conduct of “abusing the child” and the offense is a 

second-degree felony when the conduct “results in serious physical harm to the child.” 

R.C. 2919.22(E)(2)(d). R.C. 2919.22(A) prohibits the conduct of “[c]reating a substantial 

risk to the health or safety of the child, by violating a duty of care, protection, or support,” 

and the violation is a third-degree felony if it results in serious physical harm to the child.
Viers’s counsel noted that, as indicated in the mitigation for penalty 

report prepared for his sentencing, Viers had a difficult childhood. He was removed 

from his biological family and placed in foster care at age three due to the abuse by 

his biological father. He was reunited with his biological father at one point but 

returned to foster care after suffering continued abuse by his biological father, and 

he was subsequently adopted when he was nine.

The trial court sentenced Viers to consecutive terms of 30 months in 

prison for the two counts of endangering children. The court made the findings 

required by R.C. 2929.14(C)(4) that consecutive sentences are necessary to protect 

the public from future crimes; consecutive sentences are not disproportionate to the 

seriousness of the offender’s conduct and to the danger the offender poses to the 

public. The court emphasized the serious injuries sustained by the young victim. It 

also noted the previous instances of domestic violence that Viers was involved in —

his adjudication for domestic violence as a juvenile in May 2017 and a charge against 

him brought in the Cleveland Municipal Court in May 2020 — although the latter 

was subsequently dismissed. The trial court found it significant that the prior 

instances also related to domestic violence and consequently found that his history 

of criminal conduct demonstrated that consecutive sentences are necessary to 

protect the public from future crime by him. 

Viers now appeals, raising the following assignments of error for our 

review:
I. The trial court erred in imposing consecutive sentences on the basis 

of insufficiently reliable information from outside the record in 

violation of Mr. Viers’ right to due process.

II. The trial court erred in failing to assign weight to the substantial 

mitigating grounds set forth by the defense.

III. The trial court erred in imposing consecutive sentences because 

the record clearly and convincingly does not support its 

R.C. 2929.14(C) findings in regards to Mr. Viers’ criminal history.

We address the first two assignments jointly, because they both 

concern the consecutive sentences imposed by the trial court for his offenses.

Consecutive Sentences 

The consecutive sentence statute, R.C. 2929.14(C)(4), provides that 

the trial court can impose consecutive sentences if it finds that consecutive sentences 

are necessary to protect the public from future crime or to punish the offender, that 

such sentences would not be disproportionate to the seriousness of the conduct and 

to the danger the offender poses to the public, and that one of the following applies:

(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.
An appellate court reviews felony sentences under the standard of 

review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. Furthermore, R.C. 2953.08(G)(2) is the 

exclusive means of appellate review of consecutive sentences. State v. Gwynne, 158 

Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169. Pursuant to R.C. 2953.08(G)(2), 

we may increase, reduce, or otherwise modify a sentence or vacate a sentence and 

remand for resentencing if we clearly and convincingly find that the record does not 

support the sentencing court’s findings under R.C. 2929.14(C)(4), or the sentence is 

otherwise contrary to law. 

Accordingly, a consecutive sentence may be challenged in two ways. 

The defendant can argue that consecutive sentences are contrary to law because the 

court failed to make the necessary findings required by R.C. 2929.14(C)(4); or, the 

defendant can argue that the record does not support the findings made under 

R.C. 2929.14(C)(4). State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio1536, ¶ 7. 

In making the consecutive findings, a trial court is not required to give 

reasons supporting its decision to impose consecutive sentences. State v. Bonnell, 

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 27. Rather, “as long as the 

reviewing court can discern that the trial court engaged in the correct analysis and 

can determine that the record contains evidence to support the findings, consecutive 

sentences should be upheld.” Id. at ¶ 29.
Here, the record reflects the trial court imposed consecutive 

sentences based on the severity of the victim’s injuries and Viers’s prior domestic 

violence conduct. Viers does not claim that the trial court failed to make the 

requisite consecutive findings. Rather, under the first and second assignments of 

error, he argues the record does not support the findings. Specifically, he argues 

that the evidence in the record does not support a finding of a criminal history 

justifying the consecutive sentences and that the trial court improperly relied on the 

representation made by the state regarding the baby’s condition in imposing 

consecutive sentences.

We address the trial court’s finding regarding his history of criminal 

conduct first. The trial court noted two instances of domestic violence included in 

the PSI: he had an adjudication for domestic violence as a juvenile in 2017 and a 

charge brought in the municipal court for domestic violence in May 2020. Viers 

alleged that the latter charge stemmed from an argument he had with his sister after 

she blew smoke in his infant daughter’s face and he merely “slapped the cigarette 

out of her hand,” but she called the police. We note that, while the trial court is 

required to consider the PSI, it is not required to accept all of its content as true. 

State v. Caraballo, 8th Dist. Cuyahoga No. 97915, 2012-Ohio-5725, ¶ 36, citing State 

v. Mayor, 7th Dist. Mahoning No. 07 MA 177, 2008-Ohio-7011. While Viers 

appeared to minimize his conduct in the case, the trial court specifically found it 

significant that both prior cases involved domestic violence conduct.
Furthermore, although the municipal court case was subsequently 

dismissed, as this court has pointed out, R.C. 2929.14(C)(4) requires the sentencing 

court to consider a defendant’s “history of criminal conduct,” rather than 

“convictions,” and we have held that the trial court is permitted to consider conduct 

by a defendant that does not result in a conviction, provided the conduct is not the 

sole basis for the sentence. State v. Steele, 8th Dist. Cuyahoga No. 105085, 2017-

Ohio-7605, ¶ 10, citing State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio112, ¶ 16, and State v. Gray, 8th Dist. Cuyahoga No. 91806, 2009-Ohio-4200, ¶ 13. 

See also State v. Hendrickson, 8th Dist. Cuyahoga No. 111064, 2022-Ohio-3324, 

¶ 22. As this court explained in Steele, the use of different words indicates an 

intention that the words possess different meanings; while a “conviction” is 

composed of a finding of guilt and a sentence, “conduct” means the manner in which 

a person behaves or acts. Id. at ¶ 15. See also State v. Curtis, 2d Dist. Miami 

No. 2021-CA-19, 2022-Ohio-1691, ¶12 (by referring to an offender’s history of 

criminal “conduct,” R.C. 2929.14(C)(4)(c) does not limit the trial court’s 

consideration to the offender’s history of criminal convictions), citing State v. Hiles, 

3d Dist. Union No. 14-20-21, 2021-Ohio-1622, ¶ 26. Even uncharged conduct can 

be considered as a basis for establishing a history of criminal conduct for purposes 

of imposing consecutive sentences. Steele at ¶ 11, citing State v. Thomas, 8th Dist. 

Cuyahoga No. 101263, 2014-Ohio-5153, ¶ 27. “‘[P]rior arrests, facts supporting a 

charge that resulted in an acquittal, and facts related to a charge that was dismissed 

under a plea agreement’ are valid sentencing considerations.” Steele at ¶ 10, quoting 
State v. Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43. Pursuant to 

the binding precedent, therefore, the trial court’s consideration of the May 2020 

municipal court case, which was proximate in time to the present offense and also 

involved domestic violence conduct, was not improper.

Regarding his juvenile adjudication for domestic violence, Viers 

argues the adjudication should not be considered by the trial court to support 

consecutive sentences, citing State v. Batiste, 2020-Ohio-3673, 154 N.E.3d 1220 

(8th Dist.). 

“It is well settled that a defendant’s juvenile record may be considered 

as part of an offender’s ‘criminal history’ for R.C. 2929.14(C)(4) purposes in 

determining whether to impose consecutive sentences.” State v. Grant, 

2018-Ohio-1759, 111 N.E.3d 791, ¶ 42 (8th Dist.), citing State v. Carney, 1st Dist. 

Hamilton No. C-160660, 2017-Ohio-8585, ¶ 19-20, State v. McCray, 8th Dist. 

Cuyahoga No. 102852, 2015-Ohio-4689, ¶ 17-19, and State v. Bromagen, 1st Dist. 

Hamilton No. C-120148, 2012-Ohio-5757, ¶ 8. We are aware that in State v. Hand, 

149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, the Supreme Court of Ohio held 

that a juvenile adjudication cannot be used to enhance a sentence. That decision, 

however, did not involve the imposition of consecutive sentences under 

R.C. 2929.14(C)(4). Grant at ¶ 42. Until further guidance from the Supreme Court 

of Ohio, we are bound to follow the existing precedent. 

Regarding Batiste, the majority of the panel recognized that juvenile 

adjudications can be considered in adult court because they are “conduct” not 
“convictions,” and that it is widely accepted that an offender’s juvenile history can 

be used as prior criminal history for the purpose of imposing consecutive sentences. 

The majority believed, however, that the “use of an offender’s juvenile criminal 

history is generally reserved for instances where the offender has an extensive 

juvenile history.” Batiste at ¶ 20-21. In that case, the trial court relied on a single 

prior juvenile adjudication and the crimes charged in the case sub judice to find a 

history of criminal conduct justifying consecutive sentences. The majority reasoned 

that the defendant’s criminal history did not warrant consecutive sentences because 

it consisted of a single juvenile adjudication and also because nine years had passed 

since the juvenile case before the defendant was indicted in the present case. These 

circumstances in Batiste are distinguishable. Viers, 19 at the time of the instant 

offenses, had the juvenile adjudication for domestic violence only three years prior, 

and the domestic violence charge was brought against him in the municipal court 

only a month before the instant incident.

Viers also argues the trial court’s imposition of consecutive sentences 

was based on unreliable information provided by the prosecutor at the sentencing 

hearing. 

Viers received consecutive sentences after he pleaded guilty to two 

separate counts of endangering children in violation of R.C. 2919.22(A), committed 

on June 27, 2020, and June 1, 2020, respectively. That statute penalizes the conduct 

of “creat[ing] a substantial risk to the health or safety of the child, by violating a duty 

of care, protection, or support.” The sentencing transcript reflects that after the trial 
court announced the sentence of 30 months at Lorain Correctional Institute for each 

count without expressly specifying whether the sentences were concurrent or 

consecutive, the prosecutor asked the court for clarification. The court in turn asked 

the prosecutor to clarify whether the two counts related to two incidents on separate 

occasions. The prosecutor advised the court that the two counts related to separate 

instances of endangering children. The prosecutor stated the following:

There were rib fractures that were healing. We have the head injury. 

She was completely malnourished. She was underweight. She would 

have died of dehydration and malnourishment had she not been so 

badly injured and taken to the hospital with this skull fracture and the 

hematoma in her head. She had a number of different injuries[.] 

Viers argues the trial court relied on representations by the 

prosecutor regarding the child’s severe malnutrition in imposing consecutive 

sentences. We note, however, “‘R.C. 2929.19 grants broad discretion to the trial 

court to consider any information relevant to the imposition of a sentence.’” State 

v. Franklin, 8th Dist. Cuyahoga No. 107482, 2019-Ohio-3760, ¶ 31, quoting State v. 

Asefi, 9th Dist. Summit No. 26931, 2014-Ohio-2510, ¶ 8. The consideration is 

permissible as long as the information is not the sole basis for the sentence. Id. In 

any event, our review of the transcript indicates the trial court, in imposing 

consecutive sentences, placed great emphasis on the severity of the victim’s head 

injuries and the fact that the two counts of endangering children stemmed from 

separate occasions. While the prosecutor reported the victim suffered severe 

malnutrition, the transcript does not reflect that the trial court considered or relied 

on it in imposing consecutive sentences. 
Viers also claims that his consecutive sentences were predicated on 

the shaken baby syndrome the victim allegedly suffered, but he did not plead guilty 

to an offense of endangering children involving a shaken baby syndrome. He argues 

furthermore that there was no medical testimony or evidence establishing the baby’s 

injuries were caused by shaking. Viers’s claim lacks merit. Viers pleaded guilty to 

an amended Count 1, a third-degree felony, that specified that the violation resulted 

in serious physical harm to the child: “brain bleeds.” Our review of the sentencing 

transcript indicates the trial court, in imposing consecutive sentences, emphasized 

that the victim suffered head injuries so severe as to require the removal of a piece 

of her skull, that she was in a critical condition for a period of time, and that she 

sustained injuries on two separate occasions. The transcript does not reflect the trial 

court relied on the medical diagnosis of shaken baby syndrome as a reason for the 

consecutive sentences. 

Finally, Viers, pointing to page 51 of the sentencing transcript, claims 

the trial court violated his due process right when it “repeatedly interrupted defense 

counsel’s attempts to respond to the court’s reliance on the prosecutor’s 

unsupported allegations and did not allow counsel to develop a complete record” in 

support of concurrent sentences. 

The cited portion of the transcript reflects that, after the trial court 

clarified that the two prison terms for Counts 1 and 2 were to be served 

consecutively, the defense counsel, while not disputing the victim’s injuries, 

attempted to argue that the victim’s condition, including malnutrition, was not 
solely Viers’s responsibility because she had two parents and multiple individuals 

resided in the home. The trial court interrupted counsel’s line of argument, and after 

asking a few questions, it interrupted counsel again and proceeded to make the 

statutory findings justifying the consecutive sentences. It appears from the 

transcript that Viers’s counsel attempted to develop the record to support a claim 

that the sentences should not be consecutive because Viers was not solely 

responsible for the victim’s condition. As we have explained above, the trial court, 

in imposing consecutive sentences, placed emphasis on the fact that Viers pleaded 

guilty to two offenses of endangering children committed on separate occasions. 

The defense counsel’s argument that others might have also contributed to the 

baby’s condition is irrelevant at this stage of the proceeding. As such, the trial court’s 

interruption of defense counsel reflected in the cited portion of the transcript did 

not amount to a deprivation of Viers’s due process right. 

Our review of the transcript indicates the trial court made the 

statutory findings and engaged in the correct analysis for its imposition of 

consecutive sentences. While not required to, the trial court explained its reasons 

for the findings and the record contains evidence to support the findings. Because 

we will reverse or modify the consecutive sentences only if we clearly and 

convincingly find the record does not support the sentencing court’s findings, we 

affirm Viers’s consecutive sentences. The first and second assignments of error are 

without merit.
Mitigation Factors

Under the third assignment of error, Viers argues the trial court erred 

in failing to assign weight to the mitigating grounds presented by the defense, citing 

R.C. 2929.12(C)(4). 

In imposing a sentence for a felony, the trial court is to consider the 

sentencing purposes set forth in R.C. 2929.11. R.C. 2929.11 provides that a sentence 

imposed for a felony shall be guided by the overriding purposes of “protect[ing] the 

public from future crime by the offender and others and punish[ing] the offender 

using the minimum sanctions that the court determines accomplish those purposes 

without imposing an unnecessary burden on state or local government resources.” 

In determining the most effective way to comply with the purposes and principles 

set forth in R.C. 2929.11, the sentencing court must consider the seriousness and 

recidivism factors enumerated in R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 

2006-Ohio-855, 846 N.E.2d 1, ¶ 38. R.C. 2929.12(B) and (C) set forth the 

seriousness factors. 

Viers argues the trial court failed to give meaningful consideration 

and assign weight to mitigation factors as required by R.C. 2929.12(C). That section 

states:

(C) The sentencing court shall consider all of the following that apply 

regarding the offender, the offense, or the victim, and any other 

relevant factors, as indicating that the offender’s conduct is less 

serious than conduct normally constituting the offense:

* * *
(4) There are substantial grounds to mitigate the offender’s conduct, 

although the grounds are not enough to constitute a defense.

Viers argues the trial court failed to assign weight to his biological 

father’s physical and sexual abuse of him during his childhood as described in the 

mitigation of penalty report. The report also indicates Viers had an unstable 

childhood; he was placed in foster care between age three and nine before he was 

adopted. The psychiatrist who prepared the report opined that Viers’s mental illness 

of post-traumatic stress disorder was a significant factor in his commission of the 

instant offenses. 

Regarding R.C. 2929.11 and 2929.12, the Supreme Court of Ohio 

recently reminded us of our limited role in reviewing a defendant’s claims that his 

sentence is improper pursuant to R.C. 2929.11 and 2929.12. 

Nothing in R.C. 2953.08(G)(2) permits an appellate court to 

independently weigh the evidence in the record and substitute its 

judgment for that of the trial court concerning the sentence that best 

reflects compliance with R.C. 2929.11 and 2929.12. In particular, 

R.C. 2953.08(G)(2) does not permit an appellate court to conduct a 

freestanding inquiry like the independent sentence evaluation this 

court must conduct under R.C. 2929.05(A) when reviewing a death 

penalty-sentence.

 

State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.

The record here reflects the trial court heard and considered the 

mitigation argument advanced by the defense. While Viers complains that the trial 

court failed to assign weight to the substantial mitigation factors, we are not free to 

independently weight the sentencing factors in R.C. 2929.11 and 2929.12 or 

substitute the trial court’s judgment. The trial court is vested with the discretion to 
determine the weight to assign a particular statutory factor under R.C. 2929.12. 

State v. Fisher, 10th Dist. Franklin No. 13AP-995, 2014-Ohio-3887, ¶ 16. That 

discretion rests solely with the trial court. State v. Jones, 8th Dist. Cuyahoga 

No. 104152, 2016-Ohio-8145, ¶ 14. Accordingly, we find no merit to the third 

assignment of error.

Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

_____________________________

MICHELLE J. SHEEHAN, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and

KATHLEEN ANN KEOUGH, J., CONCUR