[Cite as State v. Boroff , 2020-Ohio-5376.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 12-20-02

v. BONNIE L. BOROFF, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Putnam County Municipal Court Trial Court No. 2019 CR B 00215 Judgment Affirmed Date of Decision: November 23, 2020

APPEARANCES: 

### Drew J. Mihalik for AppellantCase No. 12-20-02

-2- PRESTON, J. {¶1} Defendant-appellant, Bonnie L. Boroff (“Boroff”), appeals the J anuary 23, 2020 judgment of sentence of the Putnam County Municipal Co urt. For the reasons that follow, we affirm. {¶2} This case arises from a November 7, 2018 incident in which Boro ff’s two-year-old grandson died in a trailer owned by Boroff. Durin g the course of the investigation of the circumstances surrounding the minor child’ s death, law

enforcement officers entered Boroff’s residence and observed th e condition of the trailer where Boroff and her family, including her four minor g randchildren, resided. As a result, on July 23, 2019, a complaint was filed against Bo roff in the Putnam County Municipal Court containing four counts of endangering ch ildren in violation of R.C. 2919.22(A), first-degree misdemeanors. (Doc. No. 1). Counts One and Two related to Boroff’s granddaughters born in 2012 and 2010, r espectively, and Counts Three and Four related to Boroff’s twin grandsons born i n 2016. ( Id. ). On August 26, 2019, Boroff appeared for arraignment and entered pl eas of not guilty to the counts in the complaint. (Doc. Nos. 4, 5). {¶3} On January 6, 2020, under a negotiated plea agreement, Boroff withdrew her pleas of not guilty and entered pleas of guilty to Counts One and Two. (Doc. Nos. 27, 28, 29). In exchange, the State agreed to recom mend dismissal of the remaining counts in the complaint. ( See Doc. No. 30). The trial court acceptedCase No. 12-20-02

-3- Boroff’s guilty pleas, found her guilty of Counts One and Two, and ordered a presentence investigation (“PSI”). (Doc. Nos. 28, 29). In add ition, the trial court dismissed the remaining counts of the complaint. (Doc. No. 30) . That same day, the trial court filed its judgment entry of conviction. (Doc. Nos. 28, 29). {¶4} On January 23, 2020, the trial court sentenced Boroff to a jail term of 180 days as to Count One and 180 days as to Count Two. (Doc. N o. 31). The trial court ordered that the sentences be served consecutively to eac h other for an aggregate term of 360 days in jail. ( Id. ). That same day, the trial court filed its judgment entry of sentence. ( Id. ). {¶5} On February 7, 2020, Boroff filed her notice of appeal. 1 (Doc. No. 37). She raises one assignment of error for our review. Assignment of ErrorThe trial court abused its discretion in sentencing defendantappellant Bonnie L. Boroff to a maximum and consecutive sentence[.] {¶6} In her assignment of error, Boroff argues that the trial court abused its discretion by imposing a maximum, consecutive sentence. Specif ically, she contends that the record does not support the severity of the s entence. 2

1 The trial court stayed the execution of Boroff’s sentence pend ing appeal. (Doc. Nos. 40, 41). 2 We note that the State failed to file a brief in this matter, a practice that we strongly discourage. We caution the State that, under App.R. 18(C), “If an appellee fails to fi le the appellee’s brief within the time provided by this rule, or within the time as extended, the appellee will not be heard at oral argument except by permission of the court upon a showing of good cause submitted in writing prior to argument; and in determining the appeal, the court may accept the appellant’s st atement of the facts and issues as correct and reverse the judgment if appellant’s brief reasonably appears to sustain such action.”Case No. 12-20-02

-4- {¶7} “‘We review a trial court’s sentence on a misdemeanor violation under

an abuse of discretion standard.’” State v. Arnold , 3d Dist. Seneca No. 13-16-13, 2017-Ohio-326, ¶ 13, quoting State v. Nolan , 3d Dist. Marion No. 9-15-48, 2016- Ohio-2985, ¶ 12, citing R.C. 2929.22 and State v. Frazier , 158 Ohio App.3d 407, 2004-Ohio-4506, ¶ 15 (1st Dist.). An abuse of discretion is mo re than a mere error in judgment; it suggests that a decision is unreasonable, arbit rary, or unconscionable. State v. Adams , 62 Ohio St.2d 151, 157-158 (1980). {¶8} “‘Trial courts have full discretion to impose any sentence with in the statutory range.’” State v. Smith , 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 9, quoting State v. Noble , 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing

State v. Saldana , 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. As a fir stdegree misdemeanor, endangering children carries a maximum sanc tion of 180 days in jail. R.C. 2919.22(A), (E)(1)(a); R.C. 2929.24(A)(1). {¶9} In this case, Boroff was sentenced to 180 days in jail for each count. Accordingly, each of the trial court’s sentences is within stat utory range. “‘[A] sentence imposed within the statutory range is “presumptively v alid” if the [trial] court considered applicable sentencing factors.’” State v. Nienberg , 3d Dist. Putnam Nos. 12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 10, quoting State v. Maggette , 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31, quoting State v. Collier , 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.Case No. 12-20-02

-5- {¶10} “A trial court must consider the criteria of R.C. 2929.22 and t he principles of R.C. 2929.21 before imposing a misdemeanor senten ce.” Nolan , 2016- Ohio-2985, at ¶ 12, citing State v. Crable , 7th Dist. Belmont No. 04 BE 17, 2004- Ohio-6812, ¶ 24. R.C. 2929.21 provides, in pertinent part, tha t the “overriding purposes of misdemeanor sentencing are to protect the public fr om future crime by the offender and others and to punish the offender.” R.C. 2929 .21(A). To achieve the overriding purposes of misdemeanor sentencing, R.C. 2929.21 directs courts to “consider the impact of the offense upon the victim and the nee d for changing the offender’s behavior, rehabilitating the offender, and making re stitution to the victim of the offense, the public, or the victim and the public.” Id. In addition, R.C. 2929.21(B) instructs that a sentence imposed for a misdemeanor “shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing * * *, commensurate with and not demeaning to the se riousness of the offender’s conduct and its impact upon the victim, and consiste nt with sentences imposed for similar offenses committed by similar offenders.” {¶11} “Generally, ‘a court that imposes a sentence under [R.C. Chapte r 2929] upon an offender for a misdemeanor * * * has discretion t o determine the most effective way to achieve the purposes and principles of se ntencing set forth in

section 2929.21 of the Revised Code.’” Arnold , 2017-Ohio-326, at ¶ 16, quoting R.C. 2929.22(A). “R.C. 2929.22(B) ‘sets forth specific factors for the trial court toCase No. 12-20-02

-6- consider before imposing a sentence, including the nature and c ircumstances of the offense, the offender’s history of criminal conduct, the victim ’s circumstances, and

the likelihood that the offender will commit future crimes.’” Id. , quoting Nolan at ¶ 12. “In determining the appropriate sentence for a misdemean or, in addition to complying with [R.C. 2929.22(B)(1)], the court may consider any other factors that are relevant to achieving the purposes and principles of senten cing set forth in [R.C. 2929.21].” R.C. 2929.22(B)(2). {¶12} From the record, it is clear that the trial court sentenced Bor off after considering the overriding purposes of misdemeanor sentencing s et forth in R.C.

2929.21 and the relevant R.C. 2929.22 factors. At the sentenci ng hearing, the trial court stated that it considered “the purposes of misdemeanor se ntencing” when fashioning Boroff’s sentence. (Jan. 23, 2020 Tr. at 12). The trial court also stated that it considered the R.C. 2929.22(B) factors when determining Boroff’s sentence. ( Id. at 12-13). “The trial court is not required to make factual f indings on the record

related to these factors.” Lakewood v. Dobra , 8th Dist. Cuyahoga No. 106001, 2018-Ohio-960, ¶ 8, citing Cleveland v. Meehan , 8th Dist. Cuyahoga No. 85415, 2005-Ohio-2820, ¶ 7. “‘[A]bsent a showing to the contrary by t he defendant,’” “‘when a misdemeanor sentence is within the statutory limits, t he trial court is presumed to have considered’” the factors required by R.C. 2929 .22. Id. , quoting Maple Hts. v. Sweeney, 8th Dist. Cuyahoga No. 85415, 2015-Ohio-2820, ¶ 8.Case No. 12-20-02

-7- {¶13} Moreover, the record supports the trial court’s sentence. At t he sentencing hearing, the trial court thoroughly explored each of the R.C. 2929.22 sentencing factors it found to be relevant to determining Borof f’s sentence. (Jan. 23, 2020 Tr. at 12-14). First, the trial court stated that the fact that Boroff was aware

of the conditions of her residence and nevertheless allowed the conditions to exist was “atrocious.” ( Id. at 13). See R.C. 2929.22(B)(1)(a). The trial court found that Boroff did not acknowledge the dangers and risks she allowed to exist and, therefore, had a high likelihood to reoffend. (Jan. 23, 2020 T r. at 13). See R.C. 2929.22(B)(1)(b). In support of this finding, the trial court referenced a statement contained in the PSI in which Boroff expressed that she did not see anything wrong with the children living in the conditions present in her resid ence. (Jan. 23, 2020 Tr. at 13). ( See PSI). The trial court also found that Boroff’s conduct “showed a pattern of heedless indifference to the consequences.” (Jan. 2 3, 2020 Tr. at 13). See R.C. 2929.22(B)(1)(c). The trial court referenced the death of Boroff’s grandson

and stated that Boroff allowed the conditions to exist that cre ated a “substantial risk to the health and safety of the child.” (Jan. 23, 2020 Tr. at 13). See R.C. 2929.22(B)(1)(c). Additionally, the trial court found that the victims’ youth made them “vulnerable to the impacts of the offense.” (Jan. 23, 202 0 Tr. at 13-14). See R.C. 2929.22(B)(1)(d). The trial court noted that the victims in Counts One and Two were approximately 7-8 and 9-10 years of age and “were forc ed to live in theseCase No. 12-20-02

-8- conditions.” (Jan. 23, 2020 Tr. at 14). See R.C. 2929.22(B)(1)(d). The trial court stated that, due to their age, the victims had “no choice in wh ether or not they lived in these conditions.” (Jan. 23, 2020 Tr. at 14). The trial co urt acknowledged that the only people that could protect the victims were the adults living in the house, including Boroff. ( Id. at 14). See R.C. 2929.22(B)(1)(d). With respect to Boroff’s likelihood to reoffend, the trial court stated, “I can’t stress enough that if you can’t accept that what you allowed to occur here is wrong, that there is a great chance that any child in your care in the future faces the same risks.” (J an. 23, 2020 Tr. at 14).

See R.C. 2929.22(B)(1)(e). We find no abuse of discretion in the trial court’s analysis of the relevant statutory factors. See State v. Cooper , 3d Dist. Defiance No. 4-15-10, 2016-Ohio-450, ¶ 13. {¶14} Nevertheless, Boroff argues that the trial court abused its dis cretion by imposing a maximum, consecutive sentence. Specifically, Boroff argues that the trial court erred by imposing a maximum sentence because she do es not have a prior criminal record. R.C. 2929.22(C) provides, in relevant part, t hat “[a] court may impose the longest jail term authorized under section 2929.24 o f the Revised Code only upon offenders who commit the worst forms of the offense o r upon offenders whose conduct and response to prior sanctions for prior offense s demonstrate that the imposition of the longest jail term is necessary to deter t he offender from committing a future crime.” R.C. 2929.22(C).Case No. 12-20-02

-9- {¶15} Here, although the PSI indicates that Boroff does not have a pr ior criminal record, the record supports a finding that Boroff comm itted the worst form

of the offense. In addition to the trial court’s discussion re lating to the R.C. 2929.22(B) misdemeanor sentencing factors, the record indicates that a number of health and safety hazards were present in Boroff’s residence. At the sentencing hearing, the trial court referenced “[t]he overall unsanitarine ss and uncleanliness of the house,” which included dirty diapers on the floor, garbage throughout the residence, and electrical outlets ripped out of walls near matt resses. (Jan. 23, 2020 Tr. at 11). Moreover, the record indicates that the victims in Counts One and Two were sleeping on mattresses located “within inches of the toile t” “in a[n] otherwise dirty bathroom.” ( Id. at 12). Furthermore, a sibling of the victims in Counts One and Two died after being exposed to a hazard in the residence, which the trial court

noted is relevant to the condition of the residence where the v ictims were living. ( Id. at 11-12). ( See PSI). The record indicates that Boroff was aware of the ultimately fatal hazard, but rather than removing the hazard he rself, tasked the victims in Counts One and Two with removing the hazard. (Jan. 23, 2020 Tr. at 11- 12). ( See PSI). Additionally, the trial court noted that Boroff was cha rging rent to the parents of the minor children and was, therefore, attemptin g to profit from the unsafe living arrangement. (Jan. 23, 2020 Tr. at 11). Thus, w e find that the record supports the trial court’s imposition of a maximum sentence on the grounds thatCase No. 12-20-02

-10- Boroff’s conduct constituted the worst form of the offense. See State v. Wolfe , 7th Dist. Belmont Nos. 17 BE 0044 and 17 BE 0045, 2018-Ohio-5461, ¶ 13-15. {¶16} Boroff also challenges her maximum sentence on the grounds that it is not consistent with sentences imposed for similar crimes by similar offenders. In support of her position, Boroff argues that because she does no t have a prior criminal record, her maximum, consecutive sentence cannot be consistent with any other first-degree misdemeanor conviction by a similar offender. Bor off also references the non-maximum sentence the victims’ mother received for charg es stemming from the November 7, 2018 incident as evidence that Boroff’s se ntence is not consistent with sentences imposed for similar crimes by similar offenders. However, our review of the record reveals that Boroff failed to argue the consistentsentences issue to the trial court. “‘If a defendant fails to argue to the trial court that his sentence is not consistent with or proportionate to sentenc es imposed for similar crimes committed by similar offenders, then the defendant waive s that issue for appeal.’” State v. Silknitter , 3d Dist. Union No. 14-16-07, 2017-Ohio-327, ¶ 18, quoting State v. Norman , 3d Dist. Seneca No. 13-13-50, 2014-Ohio-3010, ¶ 17, citing State v. Ewert , 5th Dist. Muskingum No. CT2012-0002, 2012-Ohio-2671, ¶ 31. Consequently, Boroff waived the issue for appeal. See id. {¶17} Boroff further contends that the trial court abused its discret ion by failing to consider community control sanctions when fashioning her sentence. R.C.Case No. 12-20-02

-11- 2929.22(C) provides, in relevant part, that “[b]efore imposing a jail term as a sentence for a misdemeanor, a court shall consider the appropri ateness of imposing a community control sanction or a combination of community cont rol sanctions.” Boroff argues that the trial court failed to consider the appro priateness of imposing a community control sanction. In support of her argument, Boro ff relies on her lack of prior criminal record. However, the record reveals that, at the sentencing hearing, the trial court thoroughly reviewed each of the factors under R .C. 2929.22(B) and stated, “When I consider all of these factors, the only sentenc e that I believe to be appropriate in this case is the maximum sentence permitted.” ( Jan. 23, 2020 Tr. at 14). Accordingly, the record indicates that the trial court co nsidered all of the available sanctions, but concluded, based on its consideration of the R.C. 2929.22(B) sentencing factors, that the maximum jail sentence w as appropriate. {¶18} Finally, Boroff argues that her two endangering-children convic tions are allied offenses of similar import, which are subject to mer ge under R.C. 2941.25(A). However, “‘an appellate court may disregard an ass ignment of error pursuant to App.R. 12(A)(2): “if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).”’” State v. Moore , 3d Dist. Henry No. 7-19-01, 2019-Ohio-2633, ¶ 11, quoting Rodriguez v. Rodriguez , 8th Dist. Cuyahoga No. 91412, 2009-Ohio-3456, ¶ 4, quoting App.R. 1 2(A). Therefore,Case No. 12-20-02

-12- because Boroff has failed to present the issue of merger as a s eparate assignment of error in her brief, we decline to address the issue. See State v. Lane , 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819, ¶ 45. {¶19} Accordingly, for the aforementioned reasons, we conclude that t he trial court did not abuse its discretion by sentencing Boroff t o maximum,

consecutive sentences. {¶20} Boroff’s assignment of error is overruled. {¶21} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed SHAW, P.J. and ZIMMERMAN, J., concur. /jlr