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Court reverses decision granting early release in identity fraud case

JESSICA SHAMBAUGH
Special to the Legal News

Published: October 17, 2014

The 10th District Court of Appeals recently reversed a lower court’s decision granting a man early judicial release after he was convicted of felony identity fraud.

The three-judge appellate panel ruled that the Franklin County Court of Common Pleas failed to consider all of the required factors prior to granting Daniel Nichter early release from prison.

The facts of the case state that Nichter was charged with engaging in a pattern of corrupt activity, theft, identity fraud, forgery and receiving stolen property in December 2010.

Shortly thereafter, he pleaded guilty to three counts of second-degree identity fraud and the state nolled the remaining counts.

The trial court adopted the jointly recommended sentence of four years for each count and ordered the terms to run concurrently. It filed that sentencing entry in January 2012.

Just seven months later, Nichter filed a motion for judicial release.

The state opposed that motion and the trial court denied it but stated it would reconsider after Nichter completed one year of his sentence.

In May 2013, Nichter filed a second motion for judicial release.

This time, the trial court approved the motion, released Nichter and placed him on community control for three years.

On direct appeal, the state raised several assignments of error.

In its first two arguments, the state alleged that the trial court abused its discretion by failing to make the required findings needed to justify the release and by failing to list all the factors presented at the hearing.

At the hearing on the matter, the trial court expressed its concern that the victim suffered financial, emotional, intellectual and physical harm.

It further stated that Nichter’s actions were “supreme in selfishness.”

The judge expressed that the decision was a challenge, but that based on the record the court did not see anything indicating Nichter might “engage in this kind of behavior again.”

Finally, the court noted the severity of the offenses, but also its responsibility to try to rehabilitate prisoners.

Upon review, the three-judge appellate panel found that the trial court did not comply with the governing statute.

“With regard to R.C. 2929.20(J)(1)(a), the trial court’s comments merely suggest the court’s belief that a sanction other than a prison term would adequately punish appellee and protect the public from future criminal violations by appellee. The trial court found that appellee was not likely to reoffend; however, the court did so without direct reference to the recidivism factors set forth in R.C. 2929.12(D) and (E), and without listing the R.C. 2929.12 factors that were presented at the hearing as required by R.C. 2929.20(J)(2),” Judge Amy O’Grady wrote for the court.

The judges held that the trial court’s failure to expressly make the required “very specific set of findings” rendered its decision improper.

For those reasons, the judges found the remainder of the state’s arguments were moot and remanded the matter for additional proceedings.

Presiding Judge Lisa Sadler and Judge John Connor concurred.

The case is cited State v. Nichter, 2014-Ohio-4226.

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