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Date: 12-04-2020
Case Style:
STATE OF OHIO v. NATHAN ALLEN HOLSINGER
Case Number: 2019-CA-25
Judge: Jeffrey E. Froelich
Court: IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
Plaintiff's Attorney: KEVIN TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor’s Office
Defendant's Attorney:
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Description:
Dayton, OH - Criminal defense lawyer represented defendant } Nathan Allen Holsinger charged with having weapons while under disability, a third-degree felony, and domestic violence, a first-degree misdemeanor.
{¶ 3} According to the complaint filed in the municipal court, at approximately 5:30
p.m. on May 4, 2019, the victim, “Nichole,” called 911 and reported that her boyfriend,
Holsinger, chased her through their home with a loaded firearm. Nichole told the
dispatcher that she had locked herself in the bathroom and did not know Holsinger’s
location.
{¶ 4} Two deputies responded to the call. Deputy Dixon, who arrived first, located
Holsinger on the front porch of the home and detained him. Deputy Kriesel arrived soon
thereafter, placed Holsinger in handcuffs, and frisked him for weapons. No weapons
were found on Holsinger’s person. Deputy Dixon told Nichole that it was safe to leave
the bathroom.
{¶ 5} Nichole informed the deputies that, during the prior 48 hours, Holsinger had
been acting paranoid and believed that his brother was sneaking into the home.
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Holsinger then began walking around outside with a rifle. Nichole stated that the
situation began to escalate, and Holsinger took a revolver from a lock box in a closet and
pointed it at her head. Nichole grabbed her phone and ran to the bathroom. Holsinger
grabbed Nichole’s hair and shirt, causing her shirt to tear. Deputy Kriesel observed a
tear on the back of Nichole’s shirt, bruises around both of her wrists, and small cuts to
her hands and fingers. Officers located both firearms inside the home.
{¶ 6} Holsinger initially was charged by complaint in the Champaign County
Municipal Court with having weapons while under disability and aggravated menacing.
After a preliminary hearing, the municipal court found probable cause to believe that
Holsinger committed those offenses. On May 6, Deputy Kriesel filed additional
complaints for misdemeanor assault and domestic violence; the municipal court sent
those charges to the grand jury.
{¶ 7} On June 3, the grand jury indicted Holsinger on four counts of having
weapons while under disability and two counts of misdemeanor domestic violence. Two
of the weapons counts addressed the rifle (Counts 2 and 4), and two addressed the
revolver (Counts 1 and 3); Counts 1 and 2 cited a prior burglary conviction in Franklin
County, and Counts 3 and 4 cited a prior conviction for aggravated trafficking in drugs in
Madison County.
{¶ 8} The magistrate set a $7,000 bond, with conditions. At his arraignment with
counsel, Holsinger pled not guilty. On June 13, the court modified Holsinger’s bond to a
personal recognizance bond with house arrest and electronic monitoring. The house
arrest included exceptions for traveling directly to and from the courthouse or Holsinger’s
attorney’s office. At Holsinger’s request, the trial court later modified his bond so that he
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could reside with his mother and step-father; the court denied Holsinger’s request to be
able to work outside around their residence.
{¶ 9} On July 15, 2019, the date of the scheduled final pretrial conference, the trial
court held a hearing on allegations that Holsinger had violated his bond on July 11 and
July 14 by traveling to places not authorized under his bond conditions. Holsinger
admitted to the conduct, but offered explanations for why he violated his bond. The court
found Holsinger guilty of the bond violations and told him that the bond violations would
be used as a sentencing factor in the event he were convicted of an offense in the case.
{¶ 10} Following the bond violation hearing, the State informed the court that the
parties had reached a plea agreement. The trial court then conducted a plea hearing,
pursuant to Crim.R. 11, during which Holsinger pled guilty to one count of having weapons
while under disability (Count 1) and one count of domestic violence (Count Five). The
court ordered a PSI and gave Holsinger instructions about completing the PSI
questionnaire. The court revoked Holsinger’s bond and scheduled sentencing for
August 16, 2019.
{¶ 11} At sentencing, the trial court heard from the prosecutor, Nichole, defense
counsel, and Holsinger. The prosecutor recommended a prison sentence of 30 months
in prison and indicated that it would favorably consider judicial release to West Central
after Holsinger served one year in prison. The prosecutor stated that the State did not
think Holsinger presently was amenable to community control, noting Holsinger’s criminal
history. It also had “some very serious concerns” about Holsinger’s actions, including
that he reportedly was on heroin and methamphetamine at the time of the offenses. The
prosecutor noted that Holsinger claimed not to remember what he did, and the State was
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concerned about his lack of memory and whether that was genuine.
{¶ 12} Nichole wrote a letter to the court and she told the court at sentencing that
she bore “some responsibility for this situation.” She indicated that she knew Holsinger’s
history, yet failed to remove the weapons from the house before he moved in.
{¶ 13} Defense counsel asked the court to consider community control sanctions
with a stipulation that Holsinger complete a program at West Central. Defense counsel
acknowledged that the facts of the case were “severe” and that Holsinger was high on
heroin and methamphetamine when the incident occurred. Counsel emphasized
Holsinger’s “difficult upbringing” and his need for treatment after this relapse.
{¶ 14} Holsinger apologized to the court and Nichole. He stated that he “might
need maybe a prison sentence. But two and a half years I really don’t agree with.”
Holsinger said that community control would probably help him, but he was ready to
accept whatever punishment the court imposed.
{¶ 15} Prior to imposing sentence, the court asked Holsinger about his PSI
questionnaire, which was not completed before the PSI interview. Holsinger reportedly
had told the PSI interviewer that he had not received it. Holsinger told the trial court that
he left the courthouse after his plea without the PSI questionnaire. The court indicated
that it found the assertion that he never received one to be not credible. The court noted
that Holsinger could not get community control without a PSI. The court further noted
that Holsinger had violated the terms of his bond while this case was pending. The court
also addressed Nichole’s assertion that she was responsible for Holsinger’s predicament.
The court stated that Holsinger’s acts of pointing a revolver at her head and of grabbing
her hair and shirt were not due to the presence of guns in the house.
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{¶ 16} After discussing the seriousness and recidivism factors, the trial court
imposed concurrent, maximum 36-month and six-month sentences for having weapons
under disability and domestic violence, respectively. The trial court told Holsinger that,
upon his release from prison, he was subject to post-release control for a discretionary
period up to three years; the court informed Holsinger of the consequences if he violated
post-release control. Upon considering the seriousness and recidivism factors, the court
did not recommend intensive program prison or a risk reduction sentence. The court
found that Holsinger was employable and in good health for purposes of his present and
future ability to pay financial sanctions. It imposed concurrent $250 fines for both
offenses and ordered Holsinger to pay court costs. The court determined that Holsinger
was entitled to 74 days of jail time credit, plus additional credit pending transport to prison.
{¶ 17} Holsinger appeals from his convictions.
I. Anders Appeal Standard
{¶ 18} Holsinger’s appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We informed Holsinger
that his attorney had filed an Anders brief on his behalf and granted him 60 days from
that date to file a pro se brief. To date, no pro se brief has been filed.
{¶ 19} Pursuant to Anders, we must determine, “after a full examination of all
the proceedings,” whether the appeal is “wholly frivolous.” Id. at 744; Penson v. Ohio,
488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous merely
because the prosecution can be expected to present a strong argument in reply.
State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a
frivolous appeal is one that presents issues lacking arguable merit, which means that,
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“on the facts and law involved, no responsible contention can be made that it offers a
basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio3242, ¶ 8, citing Pullen at ¶ 4. If we find that any issue — whether presented by
appellate counsel, presented by the appellant, or found through an independent
analysis — is not wholly frivolous, we must appoint different appellate counsel to
represent the appellant. Id. at ¶ 7.
III. Anders Review
A. Holsinger’s Guilty Plea
{¶ 20} “An appellate court must determine whether the record affirmatively
demonstrates that a defendant’s plea was knowing, intelligent, and voluntary[.]” State v.
Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7, citing Boykin v. Alabama,
395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). If a defendant’s plea is not
knowing, intelligent, and voluntary, it “has been obtained in violation of due process and
is void.” Id.
{¶ 21} “In order for a plea to be given knowingly and voluntarily, the trial court must
follow the mandates of Crim.R. 11(C).” State v. Brown, 2d Dist. Montgomery Nos.
24520, 24705, 2012-Ohio-199, ¶ 13. The Supreme Court of Ohio has urged trial courts
to comply literally with Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 29. However, in reviewing the plea colloquy, the focus should be on
whether “the dialogue between the court and the defendant demonstrates that the
defendant understood the consequences of his plea.” State v. Dangler, Ohio Slip
Opinion No. 2020-Ohio-2765, __ N.E.3d __, ¶ 12.
{¶ 22} Crim.R. 11(C)(2) requires a trial court to address the defendant personally
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and (a) determine that the defendant is making the plea voluntarily, with an understanding
of the nature of the charges and the maximum penalty, and, if applicable, that the
defendant is not eligible for probation or for the imposition of community control sanctions;
(b) inform the defendant of and determine that the defendant understands the effect of
the plea of guilty and that the court, upon acceptance of the plea, may proceed with
judgment and sentencing; and (c) inform the defendant and determine that he or she
understands that, by entering the plea, the defendant is waiving the rights to a jury trial,
to confront witnesses against him or her, to have compulsory process for obtaining
witnesses, and to require the State to prove guilt beyond a reasonable doubt at a trial at
which he or she cannot be compelled to testify against himself or herself. State v. Brown,
2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.
{¶ 23} In general, a defendant is not entitled to have his or her plea vacated unless
the defendant demonstrates he or she was prejudiced by a failure of the trial court to
comply with the provisions of Crim.R. 11(C). Dangler at ¶ 16, citing State v. Nero, 56
Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The test for prejudice is “whether the plea
would have otherwise been made.” Id.
{¶ 24} This general rule is subject to two exceptions. Id. at ¶ 16. First, the trial
court must comply strictly with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal
constitutional rights. Id at ¶ 14; Clark at ¶ 31. “When a trial court fails to explain the
constitutional rights that a defendant waives by pleading guilty or no contest, we presume
that the plea was entered involuntarily and unknowingly, and no showing of prejudice is
required.” Dangler at ¶ 14.
{¶ 25} Second, “a trial court’s complete failure to comply with a portion of Crim.R.
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11(C) eliminates the defendant’s burden to show prejudice.” Id. at ¶ 15, citing State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22. See also State v.
Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 11 (a defendant must
show prejudice if the trial court partially complied with Crim.R. 11(C) in regard to a
nonconstitutional right, but no showing of prejudice is required if the trial court completely
failed to comply).
{¶ 26} We have reviewed the transcript of the plea hearing and find that the trial
court fully complied with the requirements of Crim.R. 11. The trial court initially
questioned Holsinger about whether he was under the influence of alcohol or illegal drugs
and about the medications he was taking. The court inquired about whether he had
discussed the case with his attorney, whether he received enough information to make a
decision on whether to enter a plea, and whether he had confidence in his attorney.
{¶ 27} The court reviewed the two offenses to which Holsinger was entering a plea
and the maximum sentences for those offenses. The court told Holsinger that the felony
and misdemeanor sentences would run concurrently. The court informed Holsinger that
he could be required to pay court costs and attorney fees. The court reviewed what
community control entails and the potential consequences for violating community
control. The trial court discussed judicial release and post-release control. The court
told Holsinger that it was not involved in the plea negotiations and that it would determine
Holsinger’s sentence. Holsinger expressed that he understood what the court had told
him.
{¶ 28} The trial court told Holsinger that a guilty plea was a complete admission of
guilt, and it reviewed the constitutional rights that Holsinger was waiving by entering a
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plea. Holsinger denied that his plea was the result of promises (other than the plea
agreement) or threats. Holsinger stated that he did not have any defense to the charges,
and he admitted to committing Counts One and Five of the indictment. Holsinger told
the court that he was entering his plea voluntarily and “of [his] own free choice,” and he
signed the plea forms.
{¶ 29} Upon review of the plea hearing transcript, we find no non-frivolous issues
relating to Holsinger’s plea.
{¶ 30} In addition, we find nothing in the record to suggest that anything that
occurred prior to the plea hearing precluded Holsinger from entering a knowing,
intelligent, and voluntary plea. A plea of guilty is a complete admission of guilt. E.g.,
State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State v.
Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3; Crim.R. 11(B)(1).
Consequently, a guilty plea generally waives all appealable errors that may have occurred
in the trial court, unless such errors precluded the defendant from knowingly, intelligently,
and voluntarily entering his or her guilty plea. See, e.g., State v. Kelley, 57 Ohio St.3d
127, 566 N.E.2d 658 (1991), paragraph two of the syllabus; Wheeler at ¶ 3. We find no
non-frivolous issues related to the events prior to Holsinger’s guilty plea.
B. Holsinger’s Sentence
{¶ 31} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it
may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
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finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,
2017-Ohio-4097, ¶ 6.
{¶ 32} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 33} In imposing sentence, the trial court made the following findings:
Regarding pre-sentence findings, the Court finds that Defendant
violated bond and had previously served prison terms. The Defendant’s
Ohio Risk Assessment Score is 20, which is considered moderate. Court
finds that Counts One and Five are not allied offenses of similar import and
do not merge. In imposing sentence, the Court considered and applied the
purposes and principles of sentencing as set forth in 2929.11 Divisions A,
B, and C. The Court also considered the seriousness of the conduct,
likelihood of recidivism, and lack of service in the Armed Forces.
Because the victim is here, and because the victim has given the
Court insight into her thoughts, the Court is going to read the seriousness
and recidivism factors on the record now so that the victim understands the
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basis for the Court’s decision.
* * *
With regard to more serious factors, the Court finds the Defendant
used the firearm to facilitate domestic violence. The Defendant used the
firearm by possessing it and pointing it at the victim’s head in a threatening
manner. The Defendant used more than one firearm during the weapons
under disability offense. The Defendant’s relationship with the victim
facilitated the offense. The victim suffered physical injuries as a result of
the domestic violence. And the Defendant committed the offenses within
a little over four months after his release from his last term of imprisonment.
With regard to less serious factors, the Court acknowledges that the
victim facilitated the offense because the firearms in the residence, shared
with the victim and Defendant, were owned by the victim. Court concludes
that factors establishing Defendant’s conduct is more serious outweigh
factors establishing conduct is less serious.
With regard to likely to commit future crimes and recidivism, the
Court finds that the Defendant has a history of criminal convictions. And
he’s not responded favorably to sanctions previously imposed for criminal
convictions. Court finds that the victim and the Defendant desire to
continue their relationship. Making the domestic violence offense
committed under circumstances likely to reoccur. The Court finds that
Defendant has four prior community control violation revocations of
sentence. And the Court finds that the Defendant committed multiple bond
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violations within two weeks of being placed on personal recognizance bond
in the case at bar.
With regard to less likely to commit future crimes, the Court finds that
prior to committing the offense the Defendant had not been adjudicated a
delinquent child. The Court finds Defendant has remorse. The Court
questions whether the remorse is genuine. Court concludes that factors
establishing recidivism is more likely outweigh factors establishing
recidivism is less likely. Court considered military service record and finds
he has no military service record.
{¶ 34} The PSI reflects that Holsinger was 40 years when the offenses occurred
and at sentencing. He had no juvenile record. His first adult offense, misdemeanor
assault, occurred when he was 21 years old. In 2010, Holsinger was convicted of
burglary, a second-degree felony, for which he received community control. In 2011, his
community control was revoked, and Holsinger served four years in prison. Holsinger
committed several misdemeanor theft offenses in 2013 and 2014. In 2018, he was
convicted of misdemeanor drug possession. In two of those cases, Holsinger’s
community control was revoked and the municipal court imposed jail terms. In June
2018, Holsinger was sentenced to seven months in prison for breaking and entering.
{¶ 35} Holsinger reported that he was using methamphetamine and heroin at the
time of the offense. He told the PSI investigator that he had overdosed 15 to 20 times
and was transported to the hospital most of those times.
{¶ 36} Holsinger obtained a GED and was not in special education classes while
in school. Holsinger described his health as good and denied having any health
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concerns during the PSI interview. Holsinger previously held employment. From
December 2017 to February 2018, he worked at Subway; and from March 2019 to May
2019, he worked as a laborer. In the months immediately prior to the instant offenses,
Holsinger worked 40 hours per week, making approximately $2,000 per month. He
reported monthly expenses totaling $1,580.
{¶ 37} Upon review of the record, including the PSI, we find no arguably
meritorious claim that the trial court’s sentence was clearly and convincingly unsupported
by the record. Holsinger’s prison term for having weapons while under disability and his
jail term for domestic violence were within the statutory ranges. Holsinger’s criminal
history and the conduct underlying the offenses supported the trial court’s imposition of
maximum sentences. The court reasonably concluded that Holsinger had the ability to
pay a $250 fine and that amount was not contrary to law. The trial court supported its
decisions to disapprove Holsinger’s participation in intensive program prison and a risk
reduction sentence.
{¶ 38} The trial court determined that Holsinger was entitled to 74 days of jail time
credit. In its judgment entry, the trial court indicated that this calculation represented 41
days from May 4, 2019 (date of arrest) to June 13, 2019 (date of personal recognizance
bond), and 33 days from July 15, 2019 (date of plea hearing) to August 16, 2019 (date of
sentencing). The court indicated that Holsinger would receive additional credit while
awaiting transport to prison. The record supports this calculation of jail time credit.
{¶ 39} We have examined the entire record and conducted our independent review
in accordance with Penson, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. We conclude
that no non-frivolous issues exist for appeal in this case.
Outcome: The trial court’s judgment will be affirmed.
Plaintiff's Experts:
Defendant's Experts:
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