State v. Brewer
2017 Ohio 119
Ohio Ct. App.2017Background
- Defendant Ben Brewer pled guilty to three counts of trafficking in heroin (third-, fourth-, and fifth-degree felonies) and a vehicle forfeiture specification; possession counts were dismissed. A condensed PSI was prepared.
- The condensed PSI described the instant offenses, a detective’s report, and that Brewer tested positive for heroin and Xanax and had not engaged in required treatment; it did not include criminal-history details, social history, or medical records.
- At sentencing the court referenced Brewer’s prior prison time and prior felony conviction(s) within two years, and the judgment entry recited an ‘‘extensive criminal history’’ and ‘‘numerous felony convictions,’’ but the record contains no documentation supporting those statements.
- The court imposed consecutive prison terms (36, 12, and 12 months) for a 60‑month aggregate sentence, and ordered optional post‑release control and reimbursements to law enforcement for buy money.
- Brewer appealed, arguing the record did not support the statutory findings required for consecutive sentences because the PSI lacked his criminal-history information; the appellate court reviewed under the standard in R.C. 2929.14(C)(4) and Bonnell.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the record supports the R.C. 2929.14(C)(4) finding that the offender’s history of criminal conduct makes consecutive sentences necessary | State argued the trial court made the required findings at sentencing | Brewer argued the condensed PSI lacked criminal-history details and the record therefore does not support the court’s consecutive‑sentence findings | Court: Record is devoid of criminal-history documentation; clearly and convincingly finds the record does not support the (C)(4)(c) finding — vacated and remanded for resentencing |
| Whether the appellate court should modify sentence to concurrent or remand for resentencing when statutory findings are unsupported | State preferred upholding sentence or applying deference to trial court | Brewer sought reversal of consecutive terms (remand) | Court followed Bonnell and remanded for resentencing rather than modifying to concurrent terms |
| Compliance with post‑release control notification requirements | State maintained post‑release control was imposed | Brewer noted sentencing advice was incomplete (called it "optional"; length not stated) | Court flagged the post‑release control advisement as deficient and directed trial court to address it on remand (statutorily required details must be provided) |
| Legality of ordering reimbursement of police buy money | State sought reimbursement order | Brewer did not raise on appeal but court noted case law that law enforcement is not a restitution "victim" for buy money | Court held ordering reimbursement to law enforcement is improper and instructed trial court to revisit that portion on remand |
Key Cases Cited
- State v. Bonnell, 140 Ohio St.3d 209 (2014) (appellate review standard and remand framework when trial court’s consecutive‑sentence findings are deficient)
- In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313 (2006) (procedural requirements and issues related to sentencing records and review)
- State v. Qualls, 131 Ohio St.3d 499 (2012) (post‑release control notification requirements and consequences of deficient advisals)
- State v. Long, 53 Ohio St.2d 91 (1978) (plain‑error standard and its narrow application)
- Beach v. Sweeney, 167 Ohio St. 477 (1958) (presumption of regularity of proceedings and reasonable inferences in absence of contrary record)