State v. Dague
2017 Ohio 8603
| Ohio Ct. App. | 2017Background
- Defendant Brian A. Dague, Jr. was indicted for two counts of theft (one fifth-degree, one third-degree) for taking items from his father and attempting to pawn them; he pled guilty pursuant to a plea agreement to attempted theft (amended Count Two), a fourth-degree felony. Restitution agreed at $1,475.00.
- At sentencing the trial court imposed 16 months’ imprisonment (within the 6–18 month statutory range for a fourth-degree felony).
- Defense argued the presentence investigation (PSI) was incomplete because the probation officer never personally interviewed Dague and the report lacked an ORAS score and significant personal information; counsel requested referral for a completed PSI or that community control be imposed instead of prison given Dague’s drug addiction.
- The State argued any PSI deficiency was harmless, noted Dague’s prior convictions (including a prior felony receiving stolen property) and prior unsuccessful diversion (intervention in lieu of conviction), and emphasized the offense involved theft from his father.
- The trial court found economic harm to the victim, that the victim relationship facilitated the offense, prior criminal history and lack of success with sanctions, lack of demonstrated remorse, and that Dague was not amenable to community control; the court sentenced Dague to 16 months and entered findings that it considered R.C. 2929.11 and 2929.12.
- On appeal Dague claimed the sentence was not clearly and convincingly supported by the record because of the incomplete PSI; the Court of Appeals reviewed under R.C. 2953.08(G)(2) and affirmed, finding the record supported the court’s sentencing findings and that the PSI did, in fact, document attempts to contact Dague.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dague) | Held |
|---|---|---|---|
| Whether the 16‑month sentence was not supported by the record because the PSI was incomplete and the court lacked critical information | Sentence is supported; any PSI contact failure was harmless; trial court considered R.C. 2929.11/2929.12 and Dague could have spoken at sentencing | PSI was incomplete (no interview, no ORAS score, missing personal info); court should have re‑referred for interview or resentenced after completed PSI | Affirmed: record supports sentencing findings; PSI showed attempts to contact Dague and court sufficiently considered statutory factors; sentence not contrary to law |
Key Cases Cited
- Marcum v. State, 59 N.E.3d 1231 (Ohio 2016) (establishes R.C. 2953.08(G)(2) standard for appellate review of felony sentences)
- State v. Rodeffer, 5 N.E.3d 1069 (Ohio App. 2013) (discusses trial court discretion to impose any sentence within statutory range and review principles)
- State v. Castle, 67 N.E.3d 1283 (Ohio App. 2016) (reminds trial courts must consider R.C. 2929.11 and 2929.12 when sentencing)