State v. Dague
2017 Ohio 8603
Ohio Ct. App. 9th2017Background
- Defendant Brian A. Dague, Jr. pled guilty pursuant to a plea agreement to attempted theft (amended Count Two), a fourth-degree felony; Count One was dismissed; restitution agreed at $1,475.00.
- Indictment arose from Dague taking items from his father's home and attempting to pawn them.
- Trial court ordered a presentence investigation (PSI); probation officer’s written PSI indicated multiple unsuccessful attempts to contact Dague and no completed in-person interview.
- At sentencing defense counsel stated the PSI was incomplete and asked for alternatives to prison, citing Dague’s severe drug addiction and prior unsuccessful intervention; Dague declined to speak.
- The court found serious economic harm, that the victim relationship facilitated the offense, a pattern of substance abuse, prior convictions, lack of remorse, and that Dague was not amenable to community control; sentenced Dague to 16 months in prison (within statutory range).
- Dague appealed, arguing the sentence was not supported because the PSI was incomplete and the court should have re-referred him for interview before sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether record clearly and convincingly fails to support the 16‑month sentence under R.C. 2953.08(G)(2) | Sentence is supported by record: prior convictions, prior failed sanctions, offense against his father, and harmlessness of any PSI deficiency | PSI was incomplete (no interview, no ORAS score, missing personal info); court should have re-referred for PSI interview before sentencing | Affirmed: under deferential R.C. 2953.08(G)(2) review, record supports the court’s findings and sentence was not contrary to law |
Key Cases Cited
- State v. Marcum, 146 Ohio St.3d 516 (2016) (sets standard for appellate review of felony sentences under R.C. 2953.08(G)(2))
- State v. Rodeffer, 5 N.E.3d 1069 (Ohio App. 2013) (discusses appellate deference and sentencing discretion)
- State v. Castle, 67 N.E.3d 1283 (Ohio App. 2016) (trial court must consider R.C. 2929.11 and 2929.12 but need not make detailed findings to impose a lawful sentence)