Posted on Oct 24, 2012

A 10th District Court of Appeals panel recently ruled that a prison sentence for a man found guilty of abduction in 2009 must adhere to standards set after his conviction.

Zachary Nistelbeck originally was placed on community control for abduction offenses. After the community control was revoked, the appellate panel held that an updated law must determine the man’s incarceration period.

“Because the prison term had not already been imposed at the time of Nistelbeck’s revocation hearing, he is entitled to the benefit of the legislature’s reduction of his potential sentence for abduction,” 10th District Judge Gary Tyack wrote for the court.

Case summary states that in 2009 the Franklin County Court of Common Pleas convicted Nistelbeck of abduction and sentenced him to five years in prison.

That sentence was stayed and he was given two years of community control with terms that included completion of a six-month stint in the Franklin County Corrections Center.

While on community control, Nistelbeck’s drug tests came back positive for opiate use, he did not always submit the required urine samples, and he did not receive an assessment about his mental health, according to case summary.

A judge in the common pleas court ordered the community control be revoked based on Nistelbeck’s violations and sentenced him to four years in prison.

Nistelbeck argued that he could only be sentenced to three years incarceration because a section of the Ohio Revised Code had been updated to limit prison terms to a maximum of three years for abduction convictions. The trial court rejected the argument and he appealed to the 10th District.

“At issue here is the effect of R.C. 1.58(B) on this situation. (It) reads: ‘If the penalty, forfeiture, or punishment of any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended,’” Tyack stated.

The appellate judges found the “key phrase” in the statute was “if not already imposed.” When determining whether the judge’s original sentence of five years in prison could be considered “already imposed,” the panel relied on other sections of the Ohio Revised Code.

It held that the code referred to similar stayed sentences as terms that “may be imposed.”

“This choice of words implies that the prison term has not actually been imposed yet, but will be imposed upon revocation of community control,” Tyack continued.

Ruling that the term had not yet been imposed, the panel upheld Nistelbeck’s argument.

“We sustain the sole assignment of error and reverse the judgment of the Franklin County Court of Common Pleas. We remand the case to the Franklin County Court of Common Pleas for a new sentencing hearing which complies with (Ohio Revised Code) and imposes a sentence no greater than three years of incarceration.”

Fellow 10th District judges Judith French and Julia Dorrian joined Tyack to form the majority.

Adam Lee Nemann represented the Defendant-Appellant, Zachary Nistelbeck.

The case is cited State v. Nistelbeck, case No. 2012-Ohio-1765.

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Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

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