COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68875 CITY OF CLEVELAND HEIGHTS : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD E. SEASTEAD : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 12, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Cleveland Heights Municipal Court Case No. 93-CRB-1243 : JUDGMENT : Remanded for sentencing. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Kim Segebarth, Esq. Joseph G. Stafford, Esq. Chief Prosecutor Vincent A. Stafford, Esq. Cleveland Heights City Hall Stafford & Associates Law Department 100 Courthouse Square 40 Severance Circle 310 Lakeside Avenue, N.W. Cleveland Hts., Ohio 44118- Cleveland, Ohio 44113 9988 -2- PER CURIAM: Defendant-appellant, Donald Seastead, entered a plea of no contest in Cleveland Heights Municipal Court to a charge of criminal trespassing, in violation of Section 541.03(A)(2) of the Codified Ordinances of the city of Cleveland Heights. The city dismissed a second charge of menacing by stalking, in violation of R.C. 2903.211(A). The trial court sentenced appellant to a jail term of thirty days, and imposed a fine of $250. The sentence was the maximum sentence allowable for a fourth degree misdemeanor under R.C. 2929.21. The court suspended twenty-six days of the thirty day sentence and $125 of the fine, conditioned upon the following: (1) one-year active probation; (2) "no conviction of any offense, specifically offense of menacing or involving threats or harassment (including harassment by telephone)"; and (3) obtaining "a behavioral/anger management assessment from Center of Effective Living, the Center for Prevention of Domestic Violence, Haven or other accredited agency specializing in violence prevention," and attending twelve to twenty counseling sessions in this regard. This accelerated appeal followed with appellant claiming as his sole assignment of error that the trial court abused its discretion in imposing the maximum penalty under the law. Specifically, he charges that the trial court failed to consider the criteria under R.C. 2929.22 and R.C. 2929.12 in rendering the sentence. Appellant also questions the trial court's rejection of -3- a plea agreement allegedly entered into by appellant and the city's prosecutors. Initially, plea bargaining is an accepted and approved method of disposing of criminal cases. State v. Ridgeway (1990), 66 Ohio App.3d 270, 276; State v. Griffey (1972), 29 Ohio App.2d 246, 250, reversed on other grounds (1973), 35 Ohio St.2d 101. However, the final judgment on whether a plea agreement is accepted rests with the trial court absent an abuse of discretion. Id; see, United States v. Ammidown (C.A.D.C. 1974), 497 F.2d 615. In the present case, this court must admit to its curiosity as to how appellant could be interviewed and accepted into the Cleveland Heights First Offenders Program when he was never approved as a participant by the trial court. However, at the plea and sentencing hearing, the trial court officially refused to allow appellant to be a participant notwithstanding his compliance with certain requirements at the direction of the city's prosecutor's office. The court explained that even though the probation department may have recommended appellant's participation in the program, "*** I consider everything. I do not find it to be appropriate in this particular case." The trial court should have stated a reason for rejecting the program as a sentencing alternative beyond this simple statement. See, Ridgeway, 276; Akron v. Ragsdale (1978), 61 Ohio App.2d 107, 109. Since the court, however, stated that it considered the facts and chose not to permit his participation, we fail to find an abuse of discretion -4- pertaining to the rejection of the plea agreement. Ridgeway; Griffey. We note that the trial court asked appellant's counsel whether appellant wished to withdraw his no contest plea in light of its determination that appellant was not a good candidate for the program. The record reveals that counsel reviewed appellant's probation report, and then stated that "we would go along with the no contest plea ***." Appellant, therefore, is precluded from arguing that if he had known that he would be sentenced, he would not have entered the no contest plea. Finally, there is nothing in the record to indicate that appellant would not be sentenced to actual jail time following the entry of the no contest plea. Compare, e.g., State v. Walker (1989), 61 Ohio App.3d 768 (trial court promised five-year sentence in exchange for plea, but later sentenced defendant to minimum term of seven years). Concerning appellant's sentence, R.C. 2929.22 sets forth the sentencing criteria for misdemeanors; section (C) incorporates R.C. 2929.12(C) mitigatory factors. Generally, when a trial court's sentence is within the confines of a valid statute, the sentence will not be disturbed on appeal as the sentencing of a defendant is within the sound discretion of the trial court. Toledo v. Reasonover (1965), 5 Ohio St.3d 22. A silent record raises the presumption that a trial court considered statutory factors, and an abuse of discretion is not necessarily demonstrated even from the imposition of a maximum sentence. State v. Adams (1988), 37 Ohio St.3d 295, paragraph three of the syllabus; see, State v. Cyrus -5- (1992), 63 Ohio St.3d 164, 166; State v. O'Dell (1989), 45 Ohio St.3d 140, 147. Therefore, it is presumed that the trial court considered the factors contained in R.C. 2929.12 and R.C. 2929.22 in the sentencing process unless it appears from the record that the court unreasonably ignored them, or acted out of bias, prejudice and preconceptions. Adams 297-298; State v. Gould (1980), 68 Ohio St.2d 215, 216-217; Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 155. The trial court herein possessed a probation report on appellant. This court repeatedly holds that a presentence report or some evidence that the trial court considered statutory factors withstands the foregoing abuse of discretion standard. See, e.g., State v. Turner (1987), 37 Ohio App.3d 38; City of Cleveland v. Burich (July 3, 1991), Cuyahoga App. No. 58668, unreported; City of Cleveland v. Uveges (May 16, 1991), Cuyahoga App. Nos. 58498, 59501, unreported. Notwithstanding this general rule, this court finds that the trial court abused its discretion in sentencing appellant to the maximum sentence allowable under R.C. 2929.21. Appellant's only other involvement with criminal activity occurred in 1972 when he was convicted of a misdemeanor, shoplifting, while a college student. The only conviction in the present case was for criminal trespassing, i.e., knowingly entering or remaining on the premises of Motorcars Honda/Pontiac, without privilege to do so. The trial court's reference to "aggravating circumstances" at the sentencing hearing and the conditions placed upon appellant's probation clearly relate to the dismissed charge -6- of menacing by stalking, i.e., appellant's pattern of conduct toward a former girlfriend following the end of their relationship. It is thus apparent that the trial court was considering the dismissed count of menacing when it imposed the maximum sentence, a sentence which we find to be an abuse of discretion under the facts and circumstances of this case. See, Columbus v. Jones (1987), 39 Ohio App.3d 87. (Court imposed requirement that defendant attend in-house alcohol treatment program indicates trial court considered driving under the influence charge despite jury's not guilty verdict). Appellant's assignment of error is sustained. This cause is remanded to the Cleveland Heights Municipal Court for modification of sentence in accordance with this opinion. -7- It is ordered that appellant recover of appellee his costs herein taxed. The Court finds there were reasonable grounds for this appeal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, PRESIDING JUDGE SARA J. HARPER, JUDGE *JOHN V. CORRIGAN, JUDGE *Judge John V. Corrigan, retired from the Eighth District Court of Appeals, sitting by assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .