[Cite as State v. Thompson, 2017-Ohio-1001.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NOS. 2016-L-036

 - vs - : and 2016-L-037 

MATTHEW D. THOMPSON, : 

 Defendant-Appellant. : 

Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 2016 CR 

000169 and 2015 CR 001047. 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor; Teri R. Daniel and Karen A. Sheppert, 

Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 

490, Painesville, OH 44077 (For Plaintiff-Appellee). 

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, 

Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For 

Defendant-Appellant). 

CYNTHIA WESTCOTT RICE, P.J. 

{¶1} Appellant, Matthew D. Thompson, appeals from the judgments of the Lake 

County Court of Common Pleas, sentencing him to consecutive terms of 12 months 

imprisonment for telecommunications harassment, in violation of R.C. 2917.21(B) and 

violation of a protection order, in violation of R.C. 2919.27(A)(2). Originally, the trial 

court imposed consecutive terms of nine months for each of the crimes. Following an 

outburst in court, however, the trial judge increased the terms. Appellant contends that, 
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in doing so, the trial court erred because the outburst was an act of contempt, rather 

than an expression of a lack of remorse. We disagree and affirm the trial court. 

{¶2} On February 11, 2016, appellant waived his right to have his case 

presented to the grand jury and pleaded guilty, by way of information, to one count of 

telecommunications harassment, a felony of the fifth degree (Lake County Common 

Pleas Case No. 15CR001047). On March 11, 2016, appellant again waived his right to 

have his case presented to the grand jury and pleaded guilty, by way of information, to 

one count of violating a protection order, a felony of the fifth degree (Lake County 

Common Pleas Case No. 16CR000169). The trial court proceeded to sentencing on 

both cases. 

{¶3} At the sentencing hearing, the trial court, after considering the felony 

sentencing factors, initially sentenced appellant to nine months on each count, to be 

served consecutively to each other, for a total of 18 months imprisonment. After court 

was adjourned and as appellant was exiting the courtroom, however, the trial judge 

overheard appellant make a vulgar, hostile comment to the prosecutor. The trial judge 

immediately went back on record and proceeded to reconsider appellant’s level of 

remorse for his criminal acts. The court stated that appellant’s outburst indicated he 

had “no remorse whatsoever” for his acts and increased appellant’s sentence to 12-

months imprisonment for each count, for a total of 24 months in prison. The court 

further advised appellant if he made any additional inappropriate comments as he 

exited, he would hold him in contempt of court. 

{¶4} Appellant appeals, assigning the following as error: 
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{¶5} “The trial court erred when it increased the defendant-appellant’s sentence 

following the conclusion of his initial sentencing hearing where its findings to increase 

the sentence were not supported by the record and contrary to law.” 

{¶6} Appellate review of a felony sentence is governed by R.C. 2953.08(G)(2), 

which provides: 

{¶7} The court hearing an appeal under division (A), (B), or (C) of 

this section shall review the record, including the findings 

underlying the sentence or modification given by the 

sentencing court. 

{¶8} The appellate court may increase, reduce, or otherwise 

modify a sentence that is appealed under this section or may 

vacate the sentence and remand the matter to the 

sentencing court for resentencing. The appellate court's 

standard of review is not whether the sentencing court 

abused its discretion. The appellate court may take any 

action authorized by this division if it clearly and convincingly 

finds either of the following: 

{¶9} (a) That the record does not support the sentencing court's 

findings under division (B) or (D) of section 2929.13, division 

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of 

section 2929.20 of the Revised Code, whichever, if any, is 

relevant; 

{¶10} (b) That the sentence is otherwise contrary to law. 

{¶11} The foregoing standard is highly deferential as the “the ‘clear and 

convincing’ standard used by R.C. 2953.08(G)(2) is written in the negative. It does not 

say that the trial judge must have clear and convincing evidence to support its findings. 

Instead, it is the court of appeals that must clearly and convincingly find that the record 

does not support the court's findings.” State v. Venes, 8th Dist. Cuyahoga No. 98682, 

2013-Ohio-1891, ¶21 (8th Dist.). Accordingly, this court can only modify or vacate a 

sentence if the panel determines, by clear and convincing evidence, that the record 
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does not support the trial court’s decision or if the sentence is contrary to law. State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶7. 

{¶12} Appellant asserts the trial court erred because it misapplied the 

seriousness and recidivism factors of R.C. 2929.12 when it added six additional months 

to his term of imprisonment following his vulgar statement to the prosecutor. Appellant 

contends the trial court erred in finding the outburst was a function of his lack of 

remorse; instead, he claims his utterance was a result of his bipolar personality 

disorder, a mental condition of which the court was aware. In light of this, appellant 

urges this court to reverse the trial court’s judgment and remand the matter for resentencing, directing the trial court to apply the law of contempt. Because the trial court 

was not required to enter a contempt order and the sentence was not final when the 

court increased appellant’s sentence, we hold the trial court’s actions are consistent 

with the law. 

{¶13} Preliminarily, although the trial court could have held appellant in contempt 

for his outburst, the trial judge, under the circumstances, acted within his authority when 

he increased appellant’s underlying sentence by six months. “A criminal sentence is 

final upon issuance of a final order.” State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio6553, ¶11. See also State ex rel. White v. Junkin, 80 Ohio St.3d 335, 337 (1997) (a trial 

court possessed authority to vacate a finding of guilt and imposition of sentence and 

order the defendant to face trial on a more serious charge because the judgment had 

never been journalized by the clerk pursuant to Crim.R. 32). A judgment of conviction is 

final when the order sets forth (1) the fact of the conviction; “(2) the sentence; (3) the 

signature of the judge; and (4) entry on the journal by the clerk of court.” State v. Baker, 
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119 Ohio St.3d 197, 2008-Ohio-3330, syllabus, as modified by State v. Lester, 130 Ohio 

St.3d 303, 2011-Ohio-5204, syllabus. 

{¶14} The judgment on sentence was not final when the trial court went back on 

record and increased appellant’s sentence. Accordingly, the trial court possessed the 

authority to change its previous sentence and, after noting appellant’s outburst reflected 

a lack of remorse, increase the penalty. 

{¶15} We shall next address whether the record, by clear and convincing 

evidence, fails to support the trial court’s sentence. First, we point out that the 2008 

psychological evaluation upon which appellant relies to support his position cuts both 

ways. In addition to commenting on appellant’s mental instability, the psychologist 

noted: “despite several legal problems before, including those of a similar nature, he 

has not adequately addressed the underlying mental health issues. This makes him 

dangerous, particularly the history of similar behaviors without him complying with court 

orders.” Eight years after the evaluation, it is evident appellant has still failed to address 

his mental health issues. The trial court, therefore, could reasonably conclude appellant 

did not take the underlying criminal offenses as serious as he claimed. 

{¶16} Moreover, since reaching adulthood in 1990, appellant has been convicted 

of 15 misdemeanors or felonies. The crimes include one instance of domestic violence; 

two of aggravated menacing; two violations of protection orders; two menacing by 

stalking; one violation of an anti-stalking order; one attempted intimidation; and one for 

telephone harassment. These 10 crimes are similar to those to which appellant pleaded 

guilty in the underlying matter. 

{¶17} During its initial sentencing of appellant, the trial court stated as follows: 
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{¶18} “I have considered all relevant factors including the seriousness and 

recidivism factors set forth in 2929.12. There are factors making the offenses more 

serious. Offender’s relationship with the victim facilitated the offense. The age of the 

victim, the type of harassment, all of those make the offenses more serious. There are 

no factors making the offenses less serious. In terms of recidivism, the offender 

committed the 16 case while under bond on the 15 case. There’s a previous criminal 

history, two prior prison terms, rehabilitation failure after previous convictions, failure to 

respond in the past to probation. And extreme number of violations of a similar 

character. No factors make recidivism unlikely.” 

{¶19} Despite the foregoing, the sentences originally imposed were not the 

maximum available for fifth-degree felonies. See R.C. 2929.14(A)(5). And a lack of 

remorse is an enhancing factor in felony sentencing. R.C. 2929.12(D)(5). In light of 

appellant’s history of committing crimes similar to those before us as well as the 

aggressive and offensive nature of the statement he cast at the prosecutor, the trial 

court could reasonably conclude the outburst demonstrated a lack of remorse. 

Appellant has failed to show, clearly and convincingly, that the trial court misapplied the 

sentencing factors or that the sentence was otherwise contrary to law. 

{¶20} Appellant’s sole assignment of error lacks merit. 

{¶21} The judgments of the Lake County Court of Common Pleas are 

accordingly affirmed. 

TIMOTHY P. CANNON, J., concurs, 

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion. 

_____________________ 
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COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion. 

{¶22} I respectfully dissent. 

{¶23} Appellant argues the trial court should have found him in contempt, rather 

than reweigh the seriousness and recidivism factors due to his bipolar condition. The 

trial court had before it and acknowledged considering a 2008 psychological evaluation 

of appellant by the court psychologist, stating that appellant has “serious underlying 

problems, and “[a]t his core, he is unstable from a mental health standpoint.” Appellant 

argues his outburst did not represent a lack of remorse, but is indicative of his unstable 

mental health. 

{¶24} Again, appellant urges us to apply the law of contempt. He cites to State 

v. King, 8th Dist. Cuyahoga No. 80958, 2002-Ohio-7228. In that case the trial court 

sentenced appellant to a total of 485 days in jail for contempt, due to five outbursts 

during trial. Id. at ¶1. The Eighth District found this excessive, and reversed and 

remanded for resentencing. Id. at ¶11, 15-19. Appellant also cites to State v. Dumas, 

7th Dist. Mahoning No. 10-MA-50, 2011-Ohio-1003. In that case, the trial court 

sentenced appellant to 18 months in jail for contempt due to a series of outbursts in 

court. Id. at ¶5-25. On appeal, the Seventh District found this excessive, and reversed 

on this point and remanded for resentencing. Id. at ¶60-62. 

{¶25} “A court may summarily punish a person for direct contempt as long as 

two conditions are met: (1) the contumacious act must be known personally to the court; 

and (2) the nature of the contempt must establish an imminent threat to the 

administration of justice so that immediate punishment is required to prevent 

demoralization of the court’s authority before the public. In re Wingrove, 4th Dist. No. 

02CA4, 2003-Ohio-549, at ¶30.” Dumas, supra, at ¶45.
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{¶26} Further, while the power of trial courts to punish direct criminal contempt is 

not limited by R.C. 2705.05, appellate courts have urged trial courts to use the statute 

as a guideline in such cases. King, supra, at ¶12; accord Dumas at ¶52. Thus, as 

appellant’s action could be defined as an initial criminal contempt of the trial court, the 

law would indicate 30 days in jail as an appropriate punishment. R.C. 2705.05(A)(1). 

He received far more. 

{¶27} This writer believes that the trial court’s decision is contrary to law, in that 

it should have applied the law of contempt, rather than reweighing the seriousness and 

recidivism factors. The record is replete with information regarding appellant’s mental 

disabilities: his conduct toward the assistant prosecutor is fully in line with those 

disabilities, and illustrates them. Mental disability is not a factor tending to make a 

crime more serious or recidivism more likely under R.C. 2929.12. Thus, the weighing of 

the seriousness and recidivism factors was complete when the trial court imposed its 

initial sentences, and should not have been reopened. Rather, appellant should have 

been held responsible for the contempt he clearly committed. Consequently, appellant 

should only be sentenced to consecutive terms of nine months, as the trial court initially 

concluded.