[Cite as State v. Barnett, 2025-Ohio-4759.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, Case No. 25-COA-001
Plaintiff - Appellee Opinion And Judgment Entry
-vs- Appeal from the Ashland County Court of
Common Pleas, Case No. 24-CRI-239
NICHOLAS BARNETT,
Judgment: Affirmed
Defendant - Appellant
Date of Judgment Entry: October 15, 2025
BEFORE: Craig R. Baldwin; William B. Hoffman; David M. Gormley, Judges
APPEARANCES: CHRISTOPHER R. TUNNELL, Prosecuting Attorney, JAMES B.
REESE III, Assistant Prosecuting Attorney, for Plaintiff-Appellee; BRIAN A. SMITH, for Defendant-Appellant.
Baldwin, P.J.
{¶1} The appellant’s counsel has submitted an Anders Brief in which he offers
as a potential assignment of error whether the trial court’s sentence was contrary to law
for not properly considering each of the principles and purposes of felony sentencing
under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12.
Appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} On August 22, 2024, a Complaint was filed in the Ashland County Court of
Common Pleas by Sergeant Mark Thomas Jump of the Ashland County Sheriff’s Office
alleging that, on or about August 20, 2024, the appellant “did purposely and by force or
by unlawful threat of harm to any person or property, retaliate against a public servant, a party official, or an attorney or witness who was involved in a civil or criminal action or
proceeding because the public servant, party official, attorney, or witness discharged the
duties of the public servant, party official, attorney, or witness,” in violation of R.C.
2921.05(A) and (C), Retaliation, a felony of the third degree. The appellant was served
with a copy of the Complaint, and appeared for a bond hearing on August 22, 2024. The
trial court appointed counsel for the appellant, set bond, and scheduled an initial
appearance hearing. The appellant pleaded not guilty at his initial appearance hearing,
and waived preliminary hearing. On September 13, 2024, an indictment was filed
charging the appellant with Retaliation in violation of R.C. 2921.05(A). The appellant
pleaded not guilty at his September 20, 2024, arraignment, and the matter was set for
jury trial on November 12, 2024. The appellant subsequently advised the trial court that
he wished to change his plea, and the court scheduled a Change of Plea Hearing for
October 31, 2024.
{¶3} The change of plea hearing proceeded on October 31, 2024. The trial court
engaged in the requisite Crim.R. 11 colloquy, accepted the appellant’s plea of guilty to
the sole charge of Retaliation, ordered a presentence investigation, and scheduled the
matter for sentencing. During the hearing, the trial court advised the appellant that the
possible sentence for his plea of guilty to a third degree felony was 9, 12, 18, 24, 30, or
36 months, which the appellant verbally acknowledged. In addition, the appellant signed
a Waiver of Constitutional Rights and Plea of Guilty form, which was filed with the court,
acknowledging the possible sentence.
{¶4} The sentencing hearing proceeded on December 9, 2024, at which the
following summary of events was presented: the appellant was on probation for an OVI
offense, violated the terms of his probation, and was sentenced to serve the balance of 50 days of jail time as a result. Rather than report to the jail as ordered, the appellant “had
a significant amount to drink” and “made threats in relation to [Municipal Court Judge J.G.]
to his pastor.” The appellant’s pastor reported the threats to law enforcement.
{¶5} The appellant’s counsel argued that the appellant took no steps in
furtherance of the threat, characterized the matter as not serious and “very close to not
even being a criminal offense.” The appellant made a statement during the hearing,
apologizing to J.G., stating that he would never harm anyone, and stating that “there is
no like injury or anything.”
{¶6} J.G. appeared at the hearing, and made the following victim statement:
* * *
The threat, I would say this, I asked for this chance to speak to you
directly and speak in the presence of Mr. Barnett, because I have been in
the Justice System for over 30 years and multiple [sic] threats against my
life by criminals.
This is the only [sic] second one that I took seriously. . . . And this
one was the only other one that there was a plan, that he did take steps in
the plan, and for him to come in here and say otherwise, I think lacks all
credibility.
The way this came to me, I sentenced him on August 19th on the
violation of probation, and the following night, the 20th, we had a long day
in Municipal Court, and I left my phone in my car. And in the evening, a
Deputy Sheriff shows up at my house where my wife and son were, and
says that he has been sent to see if I am alive, because they were not able
to get me on my cell phone, And then I learn of this threat which was - - and I am trying not to overstate it, but my wife was hysterical, all of us, all of us
in the criminal justice system, bailiffs, police officers or lawyers, prosecutors,
or judges, and we leave home every day to go to work and our family
members, they really don’t know if we are going to come home or not, and
I did not realize until his event how strong that feeling is amongst those
people.
And we get conditioned to it where we don’t think about it, but my
wife has not stopped thinking about it, she wants me to retire and we have
taken security steps at our house, and I don’t want to say what they are in
front of him, because I have no doubt in my mind that he intended to carry
out this threat, and the fact that he’s a drunk and has mental health
problems doesn’t make him less dangerous against me or my family.
The other issue is that I believed that he intended to carry it out is the
same day that he made this threat. He [sic] was on my Factbook page,
which he cannot access my Facebook page unless you [sic] are a friend,
and he is not. He sent me a friend request that I have here trying to get on
my Facebook page, and there is one reason that he would want to be on
the Facebook page is [sic] to learn about the movements and see where I
am going and furtherance of this point [sic] and the Deputy Sheriff talked to
me, says it was a very credible threat, and apparently his own pastor
thought it was relevant enough to contact law enforcement.
His behavior, this behavior immediately following the Sentence as
well as his comments on probation shows me, and I am very (inaudible) to
your decision here, Judge, but he committed this offense while on probation, and his probation was just terminated, but he demonstrated that he’s not a
person for Community Control and he violated probation already and failed
to appear for court multiple times, and I would respect and honor any
decision that the Court makes, and I am 100% sincere about that, but from
a victim standpoint, I don’t think that he’s going to comply with the probation
conditions, and which I believe [sic] he will make attempts on my life, which
is why we changed my court and changed security procedures which I never
wanted to do in the court, and I have a new carry weapon because I don’t
see well enough to shoot with pin sights, and I have a laser sighted handgun
so I can defend myself if he comes.
But I guess that is the main thing that I wanted to say, and I am here
with the victim’s advocate, I am speaking as a victim, and I don’t want to
think of myself that way, but I am not the only victim in the case, and this
has had an impact on the family. My son doesn’t want to be by himself at
home and my wife doesn’t want to be by herself at home, and we felt secure
when he was in jail.
What happens after that, I don’t know, but I would ask - - in my mind
this an [sic] assault on the Justice System, and I disagree with Mr.
Tarkowsky, that this is a minor offense or less serious than some others.
You threaten a Judge, you are attacking the Justice System, because
Judge’s [sic] that are afraid cannot be fair and do their jobs and not be
subjected to this sort of behavior because he did not want to do the jail
sentence that he deserved.
{¶7} The trial court referenced the presentence investigation and the appellant’s
ORAS Score, acknowledged the serious psychological harm suffered by the victims, and
discussed the appellant’s risk of recidivism, multiple OVIs, and probation violations. The
court characterized the offense – threatening a Judicial Officer for doing his job – as a
threat to the entire justice system, noting that the threat was taken seriously by nearly
every individual involved in the matter. The trial court also acknowledged the appellant’s
efforts to befriend J.G. on Facebook, noting that “[t]here is no other reason other than to
gain information about him.”
{¶8} The trial court further discussed the overriding purposes and principles of
felony sentencing: to protect the public from future crime by the offender and others; to
punish the offender; to rehabilitate the offender; and, to deter the offender and others
from future crimes. The court found, based upon the appellant’s history, past performance
while on probation, continued use of alcohol, and the seriousness of the offense, that
Community Control was not appropriate, and sentenced the appellant to 18 months in
prison. The trial court issued a Judgment Entry – Sentencing on December 10, 2024,
memorializing its decision.
{¶9} The appellant filed a timely appeal, and his counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he sets forth the following potential
assignment of error: “[w]hether the trial court’s sentence was contrary to law, for not
properly considering each of the principles and purposes of felony sentencing under R.C.
2929.11 and the seriousness and recidivism factors under R.C. 2929.12, pursuant to the
Ohio Supreme Court’s decisions in State v. Jones, 2020-Ohio-6729, and State v.
Marcum, 2016-Ohio-1002.”
STANDARD OF REVIEW
{¶10} The United States Supreme Court held in Anders that if, after conscientious
examination of the record, an appellant’s counsel concludes the case is wholly frivolous,
then he or she should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany the request with a brief identifying anything in the record that
could arguably support the appeal. Id. Counsel must also: (1) furnish his client with a copy
of the brief and request to withdraw; and, (2) allow his client sufficient time to raise any
matters that the client chooses. Id. Once the appellant’s counsel has satisfied these
requirements, the appellate court must fully examine the proceedings below to determine
if any arguably meritorious issues exist. If the appellate court also determines that the
appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the
appeal without violating constitutional requirements or may proceed to a decision on the
merits if state law so requires. Id.
{¶11} Attorney Brian A. Smith, the appellant’s appellate counsel, filed an Anders
brief on June 2, 2025, informing this Court that he had conscientiously examined the case,
reviewed the entire record, researched all potential issues, and determined that there
were no meritorious issues for review which would support an appeal. Attorney Smith
requested that this Court make an independent review of the record to determine whether
there are any additional issues that would support an appeal, and moved the court for
permission to withdraw as counsel for the appellant “on the grounds that the appeal is
frivolous.” He served a copy of the Appellant’s Anders Brief upon the appellant with
instructions that he may file his own brief with this Court if he so wished. In addition,
Attorney Smith filed a separate Motion to Withdraw on May 30, 2025, in which he moved for an order withdrawing him as counsel in this matter, and further stated that all steps
had been taken to protect the appellant’s interests in this matter.
{¶12} This Court informed the appellant in a June 5, 2025, Judgment Entry that
the Court received notice he had been informed by his attorney that an Anders brief had
been filed on his behalf and provided notice that supplied the appellant with a copy. In
addition, the appellant was granted sixty days from the date of the entry to file a pro se
brief in support of his appeal. The appellant did not file a pro se brief.
{¶13} The record establishes that the appellant’s counsel has satisfied the
requirements set forth in Anders. Accordingly, we review the record in this case and
determine whether any arguably meritorious issues exist, “… keeping in mind that,
‘Anders equates a frivolous appeal with one that presents issues lacking in arguable
merit. An issue does not lack arguable merit merely because the prosecution can be
expected to present a strong argument in reply or because it is uncertain whether a
defendant will prevail on the issue on appeal. ‘An issue lacks arguable merit if, on the
facts and law involved, no responsible contention can be made that it offers a basis for
reversal.’ State v. Pullen, 2002-Ohio-6788, ¶ 4 (2nd Dist.); State v. Marbury, 2003-Ohio3242, ¶ 7-8 (2nd Dist.); State v. Chessman, 2005-Ohio-2511, ¶ 16-17 (2nd Dist.). State
v. Moore, 2009-Ohio-1416, ¶4 (2nd Dist.).’” State v. Reynolds, 2024-Ohio-1956, ¶ 10 (5th
Dist.).
ANALYSIS
{¶14} Appellate counsel submits as a potential assignment of error that the trial
court’s sentence was contrary to law in that it did not properly consider each of the
principles and purposes of felony sentencing under R.C. 2929.11, and the seriousness
and recidivism factors under R.C. 2929.12. We disagree.
{¶15} An appellate court may vacate or modify any sentence that is not clearly
and convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence. State v. Marcum, 2016-Ohio1002, ¶ 23. “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, paragraph three of the syllabus (1954).
Thus, we may vacate or modify the appellant’s sentence only if we find by clear and
convincing evidence that the record does not support it.
{¶16} The appellant pleaded guilty to Retaliation. R.C. 2921.05 sets forth the
crime of retaliation, and states in pertinent part:
(A) No person, purposely and by force or by unlawful threat of
harm to any person or property, shall retaliate against a public servant, a
party official, or an attorney or witness who was involved in a civil or criminal
action or proceeding because the public servant, party official, attorney, or
witness discharged the duties of the public servant, party official, attorney,
or witness.
R.C. 2921.05(C) provides that violation of the retaliation statute constitutes a felony of the
third degree. R.C. 2929.14(A)(3)(b) provides that “for a felony of the third degree that is
not an offense for which division (A)(3)(a) of this section applies, the prison term shall be
a definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”
{¶17} R.C. 2929.11 addresses the overriding purposes of felony sentencing, and
provides in pertinent part:
(A) A court that sentences an offender for a felony shall be guided
by the overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the offender
and others, to punish the offender, and to promote the effective rehabilitation
of the offender using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on
state or local government resources. To achieve those purposes, the
sentencing court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or
both.
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony sentencing set
forth in division (A) of this section, commensurate with and not demeaning
to the seriousness of the offender's conduct and its impact upon the victim,
and consistent with sentences imposed for similar crimes committed by
similar offenders.
{¶18} R.C. 2929.12 addresses factors to consider in felony sentencing, and
provides in pertinent part:
(A) Unless otherwise required by section 2929.13 or 2929.14 of
the Revised Code, a court that imposes a sentence under this chapter upon
an offender for a felony has discretion to determine the most effective way
to comply with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code. In exercising that discretion, the court shall