[Cite as State v. Fisher , 2020-Ohio-3764.] IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellee,

- vs -

KEITH G. FISHER, Appellant. :

:

:

:

:

: CASE NO. CA2019-10-080

O P I N I O N

7/20/2020

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 19 CRB 3988A

D. Vincent Faris, Clermont County Prosecuting Attorney, Nichola s Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee W. Stephen Haynes, Clermont County Public Defender, Robert F. B enintendi, 302 East Main Street, Batavia, Ohio 45103, for appellant

RINGLAND, J. {¶1} Appellant, Keith Fisher, appeals the sentencing decision of the Clermont County Municipal Court following his conviction on multiple cou nts for violating a protective order. For the reasons detailed below, we affirm. {¶2} On August 15, 2018, the Clermont County Domestic Relations Cour t issued a Domestic Violence Civil Protection Order ("DVCPO") against Fi sher. As relevant here,Clermont CA2019-10-080

- 2 - the DVCPO was issued following a number of domestic incidents i nitiated by Fisher against his former partner, L.H., and her family. The DVCPO protected L.H., their son, and L.H.'s mother. The DVCPO prohibited Fisher from having any contact wi th the protected parties "even with the permission of a protected person" effective unti l July 20, 2023. {¶3} The DVCPO listed numerous incidents giving rise to the issuance of the order including an incident on July 16 where Fisher called and texted L.H. 300 times in five hours until L.H. contacted law enforcement. Shortly before the DVCPO was issued, Fisher was separately charged with telecommunications harassment for the a ctions he undertook on July 16. Fisher pled guilty to that offense and was sentenced to 180 days in jail. State v.

Fisher , Clermont M.C. No. 2018 CRB 3823 (Aug. 17, 2018). {¶4} Since the issuance of the DVCPO, the state has filed additional charges against Fisher for violating the protection order, menacing by stalking, and

telecommunications harassment: (1) On February 1, 2019, in Case No. 19 CRB 508, Fisher was charged with violation of a protection order. This charge was dismissed on February 7, 2019. (2) On March 12, 2019, in Case No. 19 CRB 1103, Fisher was charged with violation of a protection order. This charge was dismissed on April 17, 2019. (3) On April 16, 2019, in Case No. 2019 CRB 383, Fisher was charged with three counts of telecommunications harassment and one count of violation of a protection order. Due to uncooperative witnesses, these charges were dismissed on August 28, 2019. (4) On April 30, 2019, in Case No. 2019 CRA 1966, Fisher was charged with one count of menacing by stalking. The case was dismissed for presentment to the grand jury on May 13, 2019. (5) On May 23, 2019, in Case No. 2019 CR 512, Fisher was indicted for two counts of menacing by stalking and three count s of violating a protection order. The state dismissed these charges on August 13, 2019.Clermont CA2019-10-080

- 3 - (6) On August 6, 2019, in Case No. 2019 CR 755, Fisher was reindicted on two counts of menacing by stalking for conduct and three counts of violation of a protection order. This case was dismissed on August 28, 2019 due to uncooperative witnesses. {¶5} On August 28, 2019, Fisher was charged with nine counts of viol ating a protection order for conduct occurring on August 16, 17, 18, 19 , 20, 21, 22, 26, and 27 in

2019. 1 The state chose to proceed without the cooperation of the pro tected parties and the case was tried to the bench. During trial, the state presented evidence collected from the Clermont County Jail's phone system, which captured Fisher call ing and speaking with L.H. six separate times in violation of the DVCPO. {¶6} The trial court found Fisher guilty of six counts of violating a protection order and sentenced him to 180 days in jail for each count and ordere d that three of those terms be served consecutively for a total jail term of 540 days. Fis her now appeals, raising two assignments of error for review. {¶7} Assignment of Error No. 1: {¶8} THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT TO 540 DAYS IN JAIL. {¶9} In his first assignment of error, Fisher argues the trial court erred by sentencing him to 540 days in jail. In so doing, Fisher allege s that his sentence was not commensurate with the seriousness of his conduct or its impact on the victim. Further,

Fisher maintains that the trial court's decision was unreasonab le and suggests that the trial court's decision was motivated by some personal animus against him. We find Fisher's argument to be without merit. {¶10} We review a trial court's sentence on a misdemeanor violation u nder an abuse

1. The state ultimately chose to dismiss three of the counts f or violating the DVCPO.Clermont CA2019-10-080

- 4 - of discretion standard. State v. Jezioro , 12th Dist. Warren No. CA2016-10-088, 2017-Ohio2587, ¶ 6. An abuse of discretion connotes more than an error in law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or uncons cionable. State v. SanchezGarza , 12th Dist. Butler No. CA2016-02-036, 2017-Ohio-1234, ¶ 33 {¶11} Pursuant to R.C. 2929.21 and 2929.22, trial courts have broad d iscretion when determining what sentence is appropriate for each given mi sdemeanor case. State v. Kinsworthy , 12th Dist. Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 30. W hen determining the appropriate sentence, the trial court must be g uided by the purposes of misdemeanor sentencing which are "to protect the public from fu ture crime by the offender and others and to punish the offender." R.C. 2929.21(A). The trial court must also consider the factors listed in R.C. 2929.22(B)(1), including the nature and circumstances of the offense, and may consider any other factors that are relevant t o achieving the purposes and principles of misdemeanor sentencing. R.C. 2929.22(B)(2). State v. Briggs , 12th Dist. Clermont No. CA2016-06-043, 2017-Ohio-686, ¶ 24. {¶12} Following review, we find the trial court did not abuse its dis cretion in its sentencing decision. The record reflects that Fisher's sentenc e is within the permissible sentencing range and the trial court specifically stated that i t had considered the relevant sentencing factors. The trial court noted that Fisher had a le ngthy history of harassment and violence including charges of aggravated menacing, menacing , attempted assault, felonious assault, and abduction. While Fisher downplays the s ignificance of the violations as consensual and as having no negative impact on the victim, t he trial court specifically addressed those arguments when imposing sentencing. There's been some talk about how that contact may have been consensual, that may be so but there's a reason why the protection order that you were served with says that it doesn't matter whether they consent, that's because a lot of times victims of abuse will consent even when they don't want toClermont CA2019-10-080

- 5 - because they're afraid of you, Mr. Fisher. As such, Fisher's arguments that the phone calls were consensua l or had no negative impact on the victim are without merit. Nor is it compelling t hat the victim later sought to remove the DVCPO and failed to cooperate with the state in the prosecution of this offense. {¶13} Secondarily, Fisher argues that the trial court's decision was an abuse of discretion because he had already served 185 days in jail for o ther violations of the protection order—165 of which were associated with cases that w ere subsequently dismissed. However, there can be no dispute that those were se parate, unrelated charges involving different conduct on different dates. We fail to see how the trial court abused its discretion in this case by not affording credit to Fisher for t ime spent in jail while on other charges. To the contrary, in this case, the trial court approp riately imposed the relevant sentence for the relevant violation after considering the purpo ses and principles of misdemeanor sentencing as required by R.C. 2929.22(B)(2). {¶14} Finally, Fisher argues the trial court's decision was an abuse of discretion because the trial court spoke to Fisher in an "unconscionable" manner. Fisher specifically references part of the transcript from the sentencing hearing w here the trial court stated: I find that on your record and your history they [the protected parties] would have good reason to be afraid of you, I find you add absolutely no value to society, you do nothing except jam up our jail and unfortunately what I'm going to do today is I'm going to sentence you to consecutive sentences and they're going to total * * * 540 days. {¶15} While arguably harsh, the trial court's statement accurately re flects the facts of this case and Fisher's lengthy history of criminality and vi olence that has amounted to

several incarcerations. We do not find these statements to rev eal a due process violation or any antagonism that make "fair judgment impossible." State v. Dean , 127 Ohio St.3d 140, 2010-Ohio-5070, ¶ 48

. Rather, the trial court's critical statement about Fisher'sClermont CA2019-10-080

- 6 - conduct was based on facts presented to the court. Id . ("judicial remarks during the course of a trial that are critical or disapproving of, or even hostil e to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge "); State v. Filous , 8th Dist. Cuyahoga No. 104287, 2016-Ohio-8312, ¶ 16. Though the trial co urt's characterization of Fisher and his lengthy criminal history may have been harsh, we do not find that it amounts to judicial bias. There being no abuse of discretion in the tr ial court's sentence, we find Fisher's first assignment of error without merit and it is here by overruled. {¶16} Assignment of Error No. 2: {¶17} THE TRIAL COURT ERRED IN FAILING TO APPLY 185 DAYS JAIL-TIME

CREDIT TOWARD APPELLANT'S 540 DAY JAIL SENTENCE. {¶18} In his second assignment of error, Fisher argues the trial cour t erred by failing to apply 185 days of jail-time credit. Fisher's argument is wi thout merit. {¶19} The Equal Protection Clause requires that all time spent in jai l prior to trial and prior to commitment must be credited to the prisoner's sentence

. State v. Fugate , 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 7. Ohio codified this principle wi thin R.C. 2949.08, which states that a prison term shall be reduced "by the total number of days the person was confined for any reason arising out of the offense for which th e person was convicted and sentenced, including confinement in lieu of bail while awaiting trial * * *." R.C. 2949.08; see R.C. 2967.191 (prison terms). However, an offender is not enti tled to jail-time credit for any period of incarceration that arose from facts which are separat e and apart from those on

which his current sentence is based. State v. Edmonds , 12th Dist. Warren No. CA2014- 03-045, 2015-Ohio-2733, ¶ 12. {¶20} In the present case, Fisher was charged with separate, unrelate d offenses between February 1, 2019 and August 6, 2019. (1) On February 1, 2019, in Case No. 19 CRB 508, Fisher wasClermont CA2019-10-080

- 7 - charged with violation of a protection order. This charge was dismissed on February 7, 2019. (2) On March 12, 2019, in Case No. 19 CRB 1103, Fisher was charged with violation of a protection order. This charge was dismissed on April 17, 2019. (3) On April 16, 2019, in Case No. 2019 CRB 383, Fisher was charged with three counts of telecommunications harassment and one count of violation of a protection order. Due to uncooperative witnesses, these charges were dismissed on August 28, 2019. (4) On April 30, 2019, in Case No. 2019 CRA 1966, Fisher was charged with one count of menacing by stalking. The case was dismissed for presentment to the grand jury on May 13, 2019. (5) On May 23, 2019, in Case No. 2019 CR 512, Fisher was indicted for two counts of menacing by stalking and three count s of violating a protection order. The state dismissed these charges on August 13, 2019. (6) On August 6, 2019, in Case No. 2019 CR 755, Fisher was reindicted on two counts of menacing by stalking for conduct and three counts of violation of a protection order. This case was dismissed on August 28, 2019 due to uncooperative witnesses. {¶21} Fisher was not charged with the instant offense until August 28 , 2019, the same day that the state dismissed Case No. 2019 CR 755. On tha t date, the only offenses pending were the instant offenses. Thus, the date for calculat ing the amount of credit is August 28, 2019. The trial court sentenced Fisher on September 17, 2019. As a result, the maximum amount of jail-time credit Fisher was eligible for was 20 days. 2 As we held in

Edmonds , a defendant is "not entitled to jail-time credit for any peri od of incarceration that arose from facts which are separate and apart from those on whi ch his current sentence is

based." Edmonds at ¶ 12. Since Fisher was not incarcerated due to the instant offense until August 28, 2019, he was not entitled to jail-time credit for his prior incarceration.

2. Due to some confusion below, Fisher was given 29 days of ja il-time credit. The state has not appealed from that decision giving Fisher the additional days of jail-ti me credit.Clermont CA2019-10-080

- 8 - Fisher's second assignment of error is without merit and is her eby overruled. {¶22} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.