Oberlin Municipal Court

Oberlin, Ohio
State of Ohio

Case No. 14CRB00375

Plaintiff

vs.
Sentencing Entry

KENNETH P. CARNEY

Defendant
Summary
The following information is being provided in part to promote the
law with regard to public trials. Each and every discussion in this case
involving the judge has been in open court as all cases are in the Oberlin
Municipal Court for purposes of transparency. No conversation,
pretrial or other discussion is held in the judges chambers to preserve
transparency. Open court hearings comply with the 1st Amendment
requirement of public trials. See State ex rel. The Repository, Div. of
Thompson Newspapers, Inc. v. Unger (1986)28 Ohio St.3d 418 where the
court held:
Thus, although the orders that were issued by the judges in the underlying
cases did not arise at trial but instead occurred at pretrial hearings, we see no
reason under the Ohio Constitution to differentiate between the public's
right to attend pretrial proceedings and its right to attend trials.
Therefore we hold that the right to a public trial pursuant to the United
States and Ohio Constitutions extends to pretrial proceedings.
The following information is provided to comply with the spirit of the
law with regard to public trials for anyone interested in the factual
context of this case and the sentence in this case:
1.
2.
3.
4.
5.

Procedural History of the Case.

Explanation of the Amended Charge.
Mr. Carneys Criminal Record.
Sentencing Considerations.
The Sentence.

Procedural History of Case

1

Date
05-16-14

Event

Information

Mr. Carney is accused of Domestic

Violence 1st degree misdemeanor at
45244 Quail Hollow Ct. Amherst
Township, Ohio

Complaint is signed by Deputy Z.

Hudson and reads: Complainant,
being first duly sworn according to law,
says that on or about the 16th day of
May, 2014, at 45244 Quail Hollow Ct.,
Amherst Township, Ohio, Lorain
County, Ohio, one Kenneth P. Carney,
did knowingly cause physical harm to a
household or family member, to wit:
[name redacted], in violation of section
2919.25, of the Ohio Revised Code, a
misdemeanor of the 1st degree.
Note: Information provided by the
Community Control Department is that
Mr. Carney has a prior conviction for
Attempted Assault involving a family
or household member. Mr. Carney
could have been charged with a 4th
degree felony [maximum 18 month in
prison and $5,000.00 fine] but was not.

05-19-14
05-19-14

05-19-14
06-26-14

Complaint filed with the court

Motion for Temporary Protection Order
filed with the court
Mr. Carney appears in court with
counsel and enters a not guilty plea,
waives speedy time limits on the 1st
degree misdemeanor charge, and
requests a pretrial
Bond is set at $1,000.00 Personal. The
court finds that the safety and protection
of the alleged victim may be impaired
by the continued presence of the
Defendant and a protection order is
issued. Mr. Carney is also placed on
Court Supervised Release.
Pretrial scheduled for 06-26-14
Pretrial had.

07-24-14

Pretrial had.

07-28-14
08-07-14

Jury Demand filed.

Trial continued.

08-19-14

Motion to Amend Charge filed by the

Prosecutor

05-19-14

05-19-14

Motion signed by the alleged victim

The terms of Court Supervised release

include:
1. No alcohol or illegal drugs
2. Alcohol assessment
3. Electronic Alcohol monitoring

No resolution. Further Pretrial

scheduled for July 24, 2014
No resolution. Further Pretrial
scheduled for August 28, 2014 and
Trial scheduled for September 22, 2014
Trial continued to October 20, 2014.
Pretrial remained scheduled for August
28, 2014.
The prosecutor asks the charge to be
amended from a 1st degree
misdemeanor [maximum 180 days jail
and $1,000.00 fine] to a 4th degree
misdemeanor [maximum 30 days jail
and $250.00 fine] for the following

reasons: The reporting officer

narrativestates that the complaining
witness [alleged victim] told the
Deputy that Mr. Carney began to poke
her in the chest, and that he pushed her
against the wall and screamed at her
and that Mr. Carney grabbed the
phone from her and made a motion that
he was going to hit her with it. The
complaining witness [alleged victim]
will not testify that she believed that
Mr. Carney knowingly caused or
attempted to cause her physical harm.
08-20-14

08-27-14
09-03-14

09-03-14

Parties are given 14 days to file briefs

and/or legal authority in support of their
position on Motion to Amend the
charge
Defense files a Motion Objecting to the
States Proposed Amendment of
Complaint
Prosecutor files a Response to the
Defense Motion Objecting to the States
Proposed Amendment

09-04-14

Entry denying the Motion to Amend the

charge
New Complaint filed

09-18-14

Pretrial had in open court on the record

Motion includes a Memorandum citing

case law authority in support of the
defenses position
Prosecutor agrees with the Defense
position that the 1st degree
misdemeanor [maximum 180 day jail
and $1,000.00 fine] cannot be amended
to a 4th degree misdemeanor [maximum
30 days jail and $250.00 fine]
Charge cannot be amended downward
to a 4th degree misdemeanor
New complaint filed charging Mr.
Carney with a 4th degree misdemeanor
[maximum 30 days jail and $250.00
fine] that is signed by Deputy Z.
Hudson and reads: Complainant,
being first duly sworn according to law,
says that on or about the 16th day o
May, 2014, at 45244 Quail Hollow
Court, Amherst Township, Lorain
County, Ohio, one Kenneth P. Carney,
did knowingly cause [alleged victims
name redacted], a family or household
member, to believe that he would cause
imminent physical harm to the said
[alleged victims name redacted] this
being in violation of R.C. 2919.25(C),
a misdemeanor in the fourth degree.
In open court on the record the
prosecutor served the Defendant with
the new charge orally moved to dismiss
the 1st Degree Misdemeanor in
violation of R.C. 2919.25(A).
Attorney Bradley acknowledged
receipt of the complaint and moved
orally to dismiss the complaint for
failure to prosecute the charge of

Domestic Violence in violation of R.C.

2919.25(C) a 4th degree misdemeanor
within the speedy time limits provided
by law. The State requested time to
respond to the motion in writing. The
State is granted leave until September
25, 2014 to file a written response.
The State then orally withdrew its
motion to dismiss the 1st Degree
Misdemeanor charge.
Further Pretrial is scheduled for
October 9, 2014 at 9:00 A.M. Trial
remains scheduled for October 20,
2014 at 8:30 A.M.
09-25-14
09-26-14

State filed a written response to the

Motion to Dismiss
Entry granting Motion to Dismiss

10-09-14

Pretrial had

10-14-14

Motion for Bill of Particulars

10-14-14

Supplemental Response to Discovery

10-16-14

States Response to Motion for Bill of

Particulars

Court granted the Motion to Dismiss

the 4th Degree Misdemeanor[maximum
30 days jail and $250.00 fine] for
failure of the State of Ohio to comply
with Speedy Time Limit Requirements
leaving the 1st degree misdemeanor
pending [maximum 180 day jail and
$1,000.00 fine]
No resolution. Further Pretrial
scheduled for 10-16-14 and Trial
remains scheduled for 10-20-14 on 1st
degree misdemeanor
Because the prosecutor had previously
asked that the 1st degree misdemeanor
be dismissed the defense filed a request
to outline the States case with regard
to the 1st degree misdemeanor.
The defense filed a document that the
defense was intending on calling
Prosecutor Carlson as a witness to
testify as to his conversation with the
alleged victim where she told him that
she did not believe that Mr. Carney
knowingly caused or attempted to
cause her physical harm and the
defenses intention to introduce into
evidence the prosecutors statement in
the Motion to Amend the Complaint
regarding the alleged victims
statement to that effect.
Prosecutors response reads that the
acts that were the basis of the 1st degree
misdemeanor charge were: The
Defendant [Mr. Carney] attempted to
cause physical harm to [name of
alleged victim redacted] by poking

10-16-14

Pretrial had. Prosecutor moves to

amend the charge to a 3rd degree
Misdemeanor [Criminal Mischief].
Defense consents to the amendment.
Mr. Carney enters a plea of no contest
to the amended charge and sentencing is
scheduled for the 20th day of November,
2014.
Note: Prior to moving to amend the
charge to a 3rd degree misdemeanor the
Judge was approached by the attorneys
in open court and asked if the judge
would accept a plea agreement with a
suspended jail sentence. The judge said
that would not be accepted

10-16-14

The Plea to 3rd Degree Misdemeanor

Criminal Mischief

11-03-14

Pre-Sentence Investigation Interview

[name of alleged victim redacted] in

the chest with his finger, pushing her
against the wall and by roughly
grabbing her arm and swinging her
against the wall.
The original charge was a 1st degree
misdemeanor [maximum 180 day jail
and $1,000.00 fine]. The prosecutor
attempted to amend and then file a
charge of a 4th degree misdemeanor
[maximum 30 days jail and $250.00
fine] to which the defense objected.
The prosecutor represented to the
court that the prosecutor will have a
difficult time proving the 1st degree
misdemeanor charge including the
fact that the jury will have the
prosecutors written statement that
the alleged victim will not testify that
she believed that Mr. Carney
knowingly caused or attempted to
cause her physical harm. As a result
the parties asked the attorneys asked
the judge if the judge would accept a
plea to a 3rd degree misdemeanor
[maximum 60 days jail and $500.00
fine] (Criminal Mischief) with an
agreement to suspend the jail sentence.
The request was denied. The attorneys
later approached the judge and asked if
the judge would accept a plea to the 3rd
degree misdemeanor with a referral for
a presentence investigation report and
the plea was accepted with no promises
as to sentencing.
Mr. Carney enters a plea to Criminal
Mischief 3rd Degree Misdemeanor.
Mr. Carney is advised that the charge
of Domestic Violence in this case could
have been charged [by the police or the
prosecutor] as a 4th degree felony
[maximum penalty 18 months prison
and $5,000.00 fine] because of a prior
Attempted Assault conviction against a
family or household member and that if
convicted of Criminal Mischief in this
case [considered by the law the
equivalent of a domestic violence
offense for purposes of enhancing
future charges of domestic violence]
that the next charge, if any, of domestic
violence could be charged as a 3rd
degree felony [maximum 5 years in
prison and $10,000.00 fine]
Mr. Carney met with the Oberlin

Municipal Court Community Control

Department to provide information for
purposes of sentencing.
11-20-14

Sentencing

Explanation of the Amended Charge

The charge has been amended to Criminal Mischief upon request of
the prosecution and consent of the defense. The judge did not suggest or
recommend the amendment to the charge. Criminal Mischief involving a
family or household member is considered in the category of domestic
violence for purposes of enhancing future charges of domestic violence to
felony offenses.
The prosecutor attempted to amend the charge of a 1st degree
Domestic Violence Offense to a lesser offense of Domestic Violence but the
requests were opposed by the defense and the law did not support the
amendments. At one time the prosecutor desired to dismiss the 1st degree
Domestic Violence charge but withdrew the request.
The reasons provided by the prosecutor for the proposed amendments
and the motion to dismiss include:
The reporting narrative associated with the complaint states
that the complaining witness told the Deputy that Defendant
Carney began to poke her in the chest, and that he pushed her
against the wall and screamed at her. The narrative further
states that Defendant Carney grabbed the phone from her and
made a motion that he was going to hit her with it. The
complaining witness will not testify that she believed that
the Defendant knowingly caused or attempted to cause her
physical harm. Facts as related by the complaining witness do
support a charge that Defendant, by threat of force, knowingly
caused her to believe that he would cause her imminent
physical harm.
The law requires that if a Judge rejects a plea bargain that the Judge
should place the reasons on the record. Akron v. Ragsdale, 61Ohio App. 2d
107, 109 (1978); State v. Denes, 2008-Ohio-3506 In this case the judge did
reject a proposed plea bargain that Mr. Carney be given a suspended
jail sentence. The following are the reasons for the rejection of the plea
bargain that would have included a suspended jail sentence and the reasons
for accepting the plea agreement to the crime of Criminal Mischief:
1. The prosecutor had concerns regarding the proof of the 1st degree
misdemeanor and concerns he had regarding the jury knowing that
6

the victim would testify that she did not believe that Mr. Carney
knowingly caused or attempted to cause her physical harm.
2. The prosecutor at one point asked the court to dismiss the 1st
degree misdemeanor but withdrew the motion prior to the court
being given an opportunity to rule on the motion.
3. Had the motion not been withdrawn the court would not have
permitted the dismissal for the following reasons:
(a) The fact that the alleged victim would not testify that she believed that
the Defendant knowingly caused or attempted to cause her physical
harm is irrelevant and would call for a legal conclusion. Knowingly is
an element of the crime and has a specific definition in the law:
A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances
probably exist. R.C. 2901.22
Testimony that a person did or did not act knowingly would not be
admissible as it calls for a legal conclusion. See State v Elking (Ohio
App.3d Dist.) 1981 WL 6775
(b) It is alleged that Mr. Carney was intoxicated during the event. The law
provides that voluntary intoxication may not be taken into
consideration in determining the existence of whether a person acted
knowingly [a mental state that is an element of the crime]. R.C.
2901.21(C); See State v. Koballa, 2014-Ohio-3592 decided August 21,
2014 at 21-25 for a good discussion regarding this issue.
(c) The Lorain County Sheriff charged Mr. Carney with a 1st degree
misdemeanor based upon information they received on the date of the
event, to wit: May 16, 2014. The case was pending for a period of 3
months when a request to amend the offense to a different [lower]
charge was filed. The facts upon which the charge was filed appeared
to be the same facts available to the sheriff on the date of the event
with the exception of the representation that the alleged victim may
testify that she did not believe that Mr. Carney knowingly caused or
attempted to cause her harm.
The court is cognizant of the prosecutors discretion to try cases,
determine what charges should be filed and prosecuted and/or enter into plea
agreements. The court fully understands that the prosecutor has to weigh and
7

balance many factors when making these important decisions. This court
does not routinely reject plea agreements or motions to dismiss charges nor
does the court rubber stamp all plea agreements and motions to dismiss or to
reduce charges. Consideration must be given to the facts and circumstances
of each case.
In this case the prosecutor determined that if the case was presented to
a jury that there is a [good] possibility that there would have been an
acquittal of the 1st degree misdemeanor charge especially with the evidence
that would be presented to the jury that the prosecutor wanted the case
to be dismissed. The judge must be sensitive not only to the prosecutors
discretion but to the time, resources of the court and needs of the other
participants in a case including the victim, and the jury. It was represented to
the court that the victim in this case was in agreement with the resolution for
Mr. Carney to be found guilty of Criminal Mischief and not Domestic
Violence and preferred the resolution to a trial. And while the [ostensible]
desires of the victim in a case are not the principal factor in deciding
whether to accept a plea to a different offense than charged they certainly are
a consideration to be weighed and balanced with all of the other facts and
circumstances.
The court must carefully consider the prosecutors discretion to enter
into a plea bargain or dismiss a case based upon all the facts and
circumstances presented. The decision in this case to permit the amendment
to the charge was not taken lightly. There are circumstances when a judge
should not accept a plea bargain and require the prosecutor to try the case.
This case was not one of those cases. This is not a case where a plea bargain
was made just for the sake of making a plea bargain or because of whom Mr.
Carney is or the position he holds. If the plea bargain were proposed for
example for that reason or for expediency purposes or simply to avoid a trial
these would be insufficient reasons. In fact the 9th District Court of Appeals
has supported this courts decision to reject plea bargains in the appropriate
circumstances.1 There were sound reasons for the plea bargain in this case.
The decision to enter a plea to the amended charge was made by Mr. Carney
after much consultation with his attorney and after being admonished by the
court on the record of the consequences of the plea.
Mr. Carney had an opportunity to have a trial and instead elected to
enter a plea to a 3rd degree misdemeanor [maximum 60 days jail and $500.00
fine] a higher degree of crime than a crime earlier proposed by the
prosecutor, a 4th degree misdemeanor [maximum 30 days jail and maximum
$250.00 fine ] knowing that the prosecutor had twice asked the court to
change the charge to the lesser charge of a 4th degree misdemeanor
[maximum 30 days jail and $250.00 fine] and knowing that the jury would
be presented with a written statement by the prosecutor that the prosecutor
1

See State v Denes 2008-Ohio-3506

wanted to dismiss the 1st degree misdemeanor charge. The reasons that Mr.
Carney preferred to be found guilty to a higher degree of charge than
originally proposed by the prosecutor is a decision that he made with the
advice of counsel and fully knowing the potential consequences.
Record of Defendant
The Oberlin Municipal Court Community Control Department
provided the following information regarding Mr. Carneys record:
Arrest Date
11/24/84

Charge
OVI

3/26/00

Attempted Assault

6/4/01

OVI

10/9/03

Disorderly Conduct (MM)

1/28/06

OVI

5/16/14

Criminal Mischief

Disposition
Elyria Municipal Court
NC/FG
Oberlin Municipal Court
Amended from Domestic Violence
NC/FG
Fine $250
Jail 30/Susp 30
2 years Good Behavior-was not
scheduled for Probation Violation for
6/4/01 OVI change
Oberlin Municipal Court
Resisting Arrest dismissed
NC/FG
Fine $800
Jail 180/Susp 177
72 hour Driver Intervention Program
Probation violated by 10/9/03 Disorderly
Conduct charge. Probation violation
proceedings dismissed on 7/7/04 after
report from CCD and assessment from
Dr. Rick Capasso were reviewed.
Oberlin Municipal Court
Amended from Disorderly Conduct
Intoxication
NC/FG
Fine $100
Cleveland Municipal Court
NC/FG
PSI completed
Fine $1,500/Susp $500
Jail 180/Susp 166
Served 7 days with work and treatment
release, then filed motion to mitigate
sentence which was granted. Defendant
was released.
Oberlin Municipal Court
Amended from Domestic Violence
Instant Case

Sentencing November 20, 2014

Sentencing Considerations
The purposes for misdemeanor sentencing are to protect the public
from future crime by the offender and others and to punish the offender. See
R.C. 2929.21 To achieve the two purposes of sentencing the court is required
to consider the impact of the offense on the victim, the need for changing the
offenders behavior, the need for rehabilitating the offender, and making
restitution.
The law considers domestic violence cases in a special category.
Repeat offenses are treated most seriously. The Ohio Supreme Court has
recognized that domestic violence has been placed in a special category. In
State v Williams 1997-Ohio-79 the Supreme Court noted that the General
Assembly recognized the special nature of domestic violence when it
drafted the domestic violence statutes and believed that [crimes] involving
a family or household member deserve further protection than [crimes]
involving a stranger.
An example is R.C. 2935.03(B)(3)(e)(i) that provides that a victim in
a domestic violence or temporary protection violation must not be required
by a police officer to consent to the filing of the charge or be made to sign a
complaint against the person who has committed the offense:
A peace officershall not require, as a prerequisite to
arresting or charging a person who has committed the offense
of domestic violence or the offense of violating a protection
order, that the victim of the offense specifically consent to the
filing of chargesor sign a complaint against the person who
has committed the offense
Another example is that there are special rules involving arrests of
persons accused of domestic violence including requiring law enforcement
officers to look at certain factors to determine who the primary aggressor is
prior to the arrest. The factors include:
(i) Any history of domestic violence or of any other violent acts
by either person involved in the alleged offense that the officer
reasonably can ascertain;
(ii) If violence is alleged, whether the alleged violence was
caused by a person acting in self-defense;
(iii) Each person's fear of physical harm, if any, resulting from
10

the other person's threatened use of force against any person or

resulting from the other person's use or history of the use of
force against any person, and the reasonableness of that fear;
(iv) The comparative severity of any injuries suffered by the
persons involved in the alleged offense.
R.C. 2935.03(B)(3)(d)
Another example is that there are special rules that the court must
follow for determining bond when there is an offense of violence involving a
family or household member. R.C. 2919.251 provides that under certain
circumstances an alleged offender may not be released on bond until the
person has appeared before the court and that the court must consider certain
factors in deciding the bond including:
(1) Whether the person has a history of domestic violence or a
history of other violent acts;
(2) The mental health of the person;
(3) Whether the person has a history of violating the orders of
any court or governmental entity;
(4) Whether the person is potentially a threat to any other
person;
(5) Whether the person has access to deadly weapons or a
history of using deadly weapons;
(6) Whether the person has a history of abusing alcohol or any
controlled substance;
(7) The severity of the alleged violence that is the basis of the
offense, including but not limited to, the duration of the alleged
violent incident, and whether the alleged violent incident
involved serious physical injury, sexual assault, strangulation,
abuse during the alleged victim's pregnancy, abuse of pets, or
forcible entry to gain access to the alleged victim;
(8) Whether a separation of the person from the alleged victim
or a termination of the relationship between the person and the
alleged victim has recently occurred or is pending;
11

(9) Whether the person has exhibited obsessive or controlling

behaviors toward the alleged victim, including but not limited
to, stalking, surveillance, or isolation of the alleged victim;
(10) Whether the person has expressed suicidal or homicidal
ideations;
(11) Any information contained in the complaint and any police
reports, affidavits, or other documents accompanying the
complaint.
The legislature has also set forth categories of crimes involving
family or household members for repeat offenders as escalating the degree
and seriousness of the offense and penalties for domestic violence charges.
The list is long and includes:
1.
2.
3.
4.
5.
6.
7.

Domestic Violence R.C. 2919.25;

Negligent Assault R.C. 2903.14;
Criminal Damaging R.C. 2909.06;
Criminal Mischief R.C. 2909.07;
Burglary R.C. 2911.12;
Aggravated Trespass R.C. 29.211;
Menacing R.C. 2903.22;

[Any offense of violence or attempt to commit an offense of violence

as defined in R.C. 2901.01]
8. Aggravated Murder;
9. Murder;
10.Voluntary Manslaughter;
11.Involuntary Manslaughter;
12.Felonious Assault;
13.Aggravated Assault;
14.Assault;
15.Permitting Child Abuse;
16.Aggravated Menacing;
17.Menacing by Stalking;
18.Kidnapping;
19.Abduction;
20.Extortion;
21.Compulsion to involuntary servitude;
22.Rape;
12

23.Sexual Battery;
24.Gross Sexual Imposition;
25.Aggravated Arson;
26.Arson;
27.Terrorism;
28.Aggravated robbery;
29.Robbery;
30.Aggravated burglary;
31.Inciting to Violence;
32.Aggravated riot;
33.Riot;
34.Inducing panic;
35.Intimidation;
36.Intimidation of victim or witness in criminal case;
37.Escape;
38.Improperly discharging firearm into habitation;
39.Child Endangering.
Every person has the right at the end of the day to have a safe place to
lay their head down on their pillow. The definition of home in the
dictionary includes a place where a person can find refuge and safety or
live in security. There are bullies in the workplace, in school, in traffic and
other places in society but home is the place for a person to retreat in order
to find comfort and solace. When a person loses that place of refuge and
safety the impact on that person is immeasurable. The State legislature has
recognized these special relationships of family or household members by
providing significant and diverse consequences for persons committing
offenses against family or household members.
This is a case that may have been filed as a felony offense. Had Mr.
Carney been convicted of the felony offense the consequences may have
been ruinous for him. Conviction of a felony disqualifies a person from
holding a public position of trust or honor and could have jeopardized his
position as County Engineer. The Lorain County Sheriff did not charge Mr.
Carney with a felony. And it is not within the province of the judicial branch
to recommend or insist that a certain charge or charges be filed. Judges do
not initiate charges. That is the exclusive decision and discretion of the
executive branch of government, specifically in this case the Lorain County
Sheriffs department.
Based upon the information presented to the court there is no
doubt that the victim in this case was a family or household member at
the time of this event as that term is used in the law. Since the state
legislature considers Criminal Mischief involving a family or household
member in the same category as domestic violence convictions for
13

enhancement of future crimes the court treats this case as a domestic

violence related event.
Mr. Carney has a history of reported and unreported alcohol related
offenses and domestic violence charges.
In 1984 Mr. Carney was convicted of OVI in the Elyria Municipal
Court.
In 2000 Mr. Carney was charged with Domestic Violence [against a
family or household member.] The charge was amended to Attempted
Assault (a predicate offense to enhance future charges of Domestic
Violence). Alcohol was a factor in that case.
In 2001 Mr. Carney was charged with OVI. Mr. Carney was found
guilty of the charge. A related charge of Resisting Arrest was merged and
dismissed. Alcohol was a factor in that case.
In 2003 Mr. Carney was charged with Disorderly Conduct
Intoxication. The prosecutor requested that the charge be changed to
Disorderly Conduct and Mr. Carney was found guilty of that charge. That
charge was a violation of Mr. Carneys probation in the OVI case.
In 2006 Mr. Carney was convicted of OVI in the Cleveland Municipal
Court.
The victim provided information that this is not an isolated event and
that incidents such as these occur when Mr. Carney drinks.
Mr. Carney has presented the court with information that he is
presently treating for his alcohol condition including participating in alcohol
anonymous programs. The court encourages Mr. Carney to continue his
treatment in this regard. Mr. Carney is not unlike many offenders in the
criminal justice system. When faced with a criminal charge the offender is
motivated to change and prove to the court that the person is taking the
necessary corrective action on their own so that they may avoid court
intervention including and especially jail.
The pre-sentence investigation report indicates that the victim in this
case had two glasses of wine. A word about that is in order. A charge of
domestic violence or a domestic violence related charge is not about whether
the victim had something to drink or was intoxicated. If a person is even
[mildly] impaired that person becomes more vulnerable and is less likely to
have the means to defend themselves. Therefore, the fact that the victim in a
domestic violence or domestic violence related event is intoxicated should
not be used as an excuse or mitigation regarding the actions of the accused
or the defendant unless relevant to a legal defense to the charge. There is no
suggestion that the drinking by the victim in this case is a defense to any
charge in this case. Mr. Carney is listed as 61 and 200 lbs and the victims
witness statement shows that the victim is 52 and 105 lbs. and that the
victim is 62 years old.
14

A judge must in any case, including this case, say and do what is
necessary to make sure the person is rehabilitated and does not return repeat
the same or similar offense. The decision is one of the most important
functions of the judge. The crux of the decision is what consequence would
be so meaningful to the person that the person will make better decisions.
Usually a combination of jail or a suspended jail sentence and a period of
probation is the means to that end, especially for repeat offenders.
In the case of Mr. Carney, he has avoided a significant jail penalty in
most of his previous encounters with the law and it appears to the court that
simply placing Mr. Carney on probation would not serve either the interests
of Mr. Carney, the victim in this case or the community. In this case a jail
sentence is appropriate. If the court would impose the entire 60 days the
court loses the opportunity to require Mr. Carney to follow rules of
probation. For that reason a combination of jail and probation is appropriate.
The State chose not to pursue the 1st degree misdemeanor charge and
therefore the court only has 60 days jail as a tool to accomplish the goals of
sentencing. As a result a period of jail followed by a period of probation is
appropriate.
It is with this background that the court imposes the following
sentence:
The Sentence
Defendant appeared in court with counsel on October 16, 2014.
Defendant was originally charged with Domestic Violence a 1st degree
misdemeanor. Upon motion of the , was advised of the difference
between the pleas of not guilty, no contest and guilty, acknowledged
that she/he reviewed her/his rights in writing with her/his attorney and
that she/he understood all of her/his rights including the right to trial
by jury, was advised of the increased penalties and/or degree of crime
for repeat offenses and Defendant entered a plea of no contest and
Defendant's plea was accepted and Defendant was found guilty of:
Charge
Degree
Code Section
CRIMINAL MISCHIEF

M-3

RC 2907.07

[AMENDED FROM DOMESTIC VIOLENCE UPON MOTION OF THE

PROSECUTOR FOR THE FOLLOWING REASONS:

The charge as originally filed was domestic violence in

violation of R.C. 2919.25(A) a 1st degree misdemeanor. The
prosecutor filed a motion to amend the charge to a lesser charge
of Domestic Violence in violation of R.C. 2919.25(C), a 4th
degree misdemeanor, which was opposed by Mr. Carney, and
the court found that the law did not permit the amendment. The
prosecutor filed an amended charge of R.C. 2919.25(C) a 4th
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degree misdemeanor and Mr. Carney again opposed the

reduction of the charge and filed a motion to dismiss the charge.
The court found that the law did not permit the re-filing of the
reduced charge and the motion to dismiss was granted. The
prosecutor cited problems with the prosecutions case including
that the alleged victim would testify that she did not believe that
Mr. Carney knowingly caused or attempted to cause her harm.
As a result the prosecutor has serious concerns whether the
crime as charged can be proven. (See Motion to Amend filed on
August 19, 2014). The prosecutor then requested a 4th degree
misdemeanor to which Mr. Carney twice objected [once by
amendment and once by re-filing] and instead Mr. Carney
agreed to the higher degree of crime, a 3rd degree misdemeanor
charge of Criminal Mischief.]
Defendant appeared this date with counsel for sentencing and the Defendant
is sentenced as follows:
JAIL
Charge
CRIMINAL MISCHIEF

Sentence
60 days

Suspended Sentence (see below)

30 days

Jail shall commence on November 28, 2014 at 7:00 A.M. Credit is granted
for 4 days for time served.
FINE
Charge
CRIMINAL MISCHIEF

Fine
$500.00

Fine Suspended
$-0-

COSTS OF INCARCERATION
Pursuant to R.C. 2929.28(A)(3)(a) Defendant shall reimburse the Lorain
County Sheriff for all costs of confinement at the Lorain County
Correctional Facility for: 1. A per diem fee for room and board as
determined by the Lorain County Sheriff not to exceed the actual cost of
room and board; and the costs of any actual medical and dental treatment
incurred by the Lorain County Sheriff during the term of incarceration.
COURT COSTS
Court costs are assessed to Defendant.
SUSPENSION OF JAIL
30 DAYS of the jail sentence imposed are suspended on the following
conditions:
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1. Defendant shall be on Monitored Time for a period of 5 years. The

condition of Monitored Time is that the Defendant shall lead a law
abiding life and includes but is not limited to: Defendant shall not
commit any similar offense, any offense of violence, any delineated
offense in R.C. 2919.25 that would qualify as a predicate offense for
enhancement of a domestic violence charge to a felony or any alcohol
related offense or offense where alcohol is a contributing factor to the
charge or charges. Defendant shall not consume alcohol during the
period of monitored time.
2. Defendant shall be on Intensive Probation Supervision for the period
of monitored time. Defendant is required to maintain frequent contact
with the Community Control Department and follow the Standard
Conditions of Probation and any other conditions imposed by the
court or the Community Control Officer assigned to Defendant's case.
3. Defendant shall be re-connected to an alcohol monitor prior to
release from LCCF and shall remain connected to the monitor for
the period of monitored time.
COURT SUPERVISION FEES
Defendant is being placed on Intensive Probation Supervision and shall pay
a Court Supervision Fee of $25.00 per month for each month that Mr.
Carney remains on Intensive Supervised Probation.
November 20, 2014

_________________________
Judge

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