2021 Ohio 1427
Ohio Ct. App.2021Background
- On Jan. 7, 2020, officers stopped a vehicle after a driver (Denvil Rose) failed to stop; Rose fled on foot and was later found with syringes. Clark, a passenger, was arrested and a small amount of methamphetamine and drug paraphernalia were found in her purse. Clark was charged in Champaign C.P. No. 2020-CR-13 (aggravated possession, fifth-degree felony).
- While on bond, Clark made recorded phone calls to Rose about retrieving something he had buried while fleeing; officers found a bag in the field containing 83.9 grams of methamphetamine. Clark was charged in Champaign C.P. No. 2020-CR-54 (attempted aggravated possession, third-degree felony, plus other counts later dismissed).
- Clark pleaded guilty in No. 2020-CR-13 to aggravated possession and in No. 2020-CR-54 to attempted aggravated possession; other counts in the second case were dismissed.
- The trial court sentenced Clark to 8 months on the first case and the statutory maximum 36 months on the second case, ordered the sentences to run consecutively, and imposed fines, costs, and payment of appointed-counsel fees.
- On appeal Clark challenged (1) the assessment of court-appointed counsel fees, (2) imposition of prison rather than community control, (3) imposition of the maximum term, and (4) imposition of consecutive sentences.
- The trial court relied on bond violations, multiple contacts with co-defendant, tampering, a criminal history, failure of prior sanctions and treatment, lack of remorse, and the R.C. 2929.11/2929.12 factors in explaining sentencing choices.
Issues
| Issue | State's Argument | Clark's Argument | Held |
|---|---|---|---|
| Whether the court could order Clark to pay appointed-counsel fees under R.C. 2941.51(D) without explicit on-the-record ability-to-pay findings | Trial court may assess appointed-counsel fees; its findings about employability suffice | Court erred by imposing fees without an explicit ability-to-pay finding on the record | Affirmed: controlling Ohio Supreme Court authority permits fee assessment without specific on-the-record ability-to-pay findings |
| Whether prison was required (vs. community control) for attempted aggravated possession (third-degree) | Prison appropriate because presumption for prison under R.C. 2929.13(D)(1) not rebutted given recidivism and seriousness factors | Clark had no prior felony, admitted addiction, willing to seek treatment, and is primary caregiver of minor children—so community control was appropriate | Affirmed: record supports trial court’s conclusions that community control would not adequately punish or protect the public |
| Whether imposing the maximum sentence (36 months) for the third-degree offense was unsupported | Trial court considered R.C. 2929.11 and 2929.12 factors and could impose maximum within statutory range | Maximum term was excessive and unsupported by the record | Affirmed: court properly considered sentencing statutes and record does not permit reversal under deferential review framework |
| Whether consecutive sentences were unsupported by the record | Consecutive sentences necessary to protect public and to punish; not disproportionate; statutory criteria met (offense committed while on bond) | Consecutive terms are disproportionate and unsupported by the record | Affirmed: trial court made required R.C. 2929.14(C)(4) findings and record supports them under deferential review |
Key Cases Cited
- State v. Brown, 99 N.E.3d 1135 (2d Dist. 2017) (discusses review standards and that R.C. 2929.11/2929.12 considerations do not require particular findings for maximum sentences)
- State v. Withrow, 64 N.E.3d 553 (2d Dist. 2016) (articulates deferential standard for appellate review where trial court properly makes consecutive-sentence findings)