State v. Ogle, 2012 Ohio 3693

Ogle and a codefendant trespassed on Die-Matic Corporation property, stole scrap metal, and sold it for $213.75.
In November 2011, Ogle was indicted for breaking and entering (5th degree felony) and theft (first degree misdemeanor).
Ogle was released on bond with court supervision, failed to appear, and later tested positive for cocaine, leading to bond forfeiture.
In January 2012, Ogle moved for intervention in lieu of conviction and requested a hearing; in February 2012 he pleaded guilty to breaking and entering, the theft charge was dismissed, and he was sentenced to 20 days in jail with credit for time served and a $150 fine.
HB 86, effective at sentencing, creates a preference for community control sanctions for certain fourth and fifth degree nonviolent felonies, affecting whether Ogle should receive community control instead of jail.
The trial court sentenced Ogle to jail for 20 days; the state appealed arguing the sentence violated HB 86, while Ogle cross-appealed on intervention-hearing and merging issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did HB 86 require community control sanctions for this fifth-degree nonviolent felony?	State argues court compliance with HB 86 required community control.	Ogle contends sentencing discretion allowed jail term under existing framework.	State's argument sustained; sentence contrary to law; remand for resentencing.
Should the judge have held a hearing on intervention in lieu of conviction before sentencing?	State did not oppose the motion; question is whether denial without hearing was proper.	Ogle asserts denial without a hearing violated Crim.R. 12 and due process.	Ogle's first cross-appeal assignment overruled; no hearing required under record.
Was there plain error in not merging the breaking and entering with the theft toward sentencing?	State contends merger not applicable due to single conviction and dismissal of theft.	Ogle argues improper non-merger under merging rules.	No plain error; merger not applicable; assertion overruled.

State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (provides framework for reviewing sentencing for compliance with law and reasonableness)