State v. Sothen, 2017 Ohio 8033

Background

In December 2015 officers executed a search warrant at Shane Sothen’s residence and discovered a large indoor marijuana grow within 1,000 feet of a school; total weight 23,604 grams. Sothen said he grew marijuana to help pay bills.
A Licking County grand jury indicted Sothen on illegal cultivation (1st-degree felony) and possession of marijuana (2nd-degree felony). He initially pled not guilty, then pled guilty to both counts; the counts merged and the State elected sentencing on the possession count.
On January 10, 2017 the trial court sentenced Sothen to the mandatory maximum for a second-degree felony: eight years imprisonment and a mandatory $15,000 fine; driving privileges suspended five years.
On appeal Sothen challenged (1) imposition of the maximum prison term as not supported by clear and convincing evidence and contrary to the purposes/principles of R.C. 2929.11/2929.12, and (2) the $15,000 mandatory fine because he had filed an affidavit of indigency.
The trial court relied on Sothen’s prior illegal-cultivation conviction, early release and quick return to high utility use (suggesting reoffending), its view that he was a professional dealer and not genuinely remorseful, and perceived ownership of property and vehicles when denying indigency for the fine.
The appellate court affirmed, finding the record clearly and convincingly supported the maximum sentence and that the trial court did not abuse its discretion in imposing the mandatory fine after considering ability to pay.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the maximum 8-year sentence was contrary to law / unsupported by clear and convincing evidence	State: Sentence within statutory range; trial court considered R.C. 2929.11/2929.12 and record supports max term given prior conviction and conduct	Sothen: Record lacks clear and convincing support; mitigating circumstances (remorse, family hardship) make max term excessive	Affirmed: Court found record clearly and convincingly supported maximum term; sentence not contrary to law
Whether the $15,000 mandatory fine should be waived because defendant filed affidavit of indigency	State: Trial court properly considered present and future ability to pay and could impose fine despite prior affidavit	Sothen: Having been found indigent for counsel and filed affidavit, he cannot be fined $15,000	Affirmed: Court held trial court considered ability to pay and did not abuse discretion in imposing mandatory fine

Key Cases Cited

State v. Marcum, 146 Ohio St.3d 516 (2016) (standard for appellate review of felony sentences — vacate/modify only if record lacks support or sentence is contrary to law)
Cross v. Ledford, 161 Ohio St. 469 (1959) (definition of clear and convincing evidence)
In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985) (clarifies standard for clear and convincing review)
State v. Kalish, 120 Ohio St.3d 23 (2008) (discusses post-Foster sentencing review and requirement to consider R.C. 2929.11/2929.12)
State v. Foster, 109 Ohio St.3d 1 (2006) (severed mandatory judicial fact-finding provisions of R.C. 2929.14; courts retain discretion within statutory ranges)
State v. Payne, 114 Ohio St.3d 502 (2007) (follow-up on sentencing discretion after Foster)
State v. Mathis, 109 Ohio St.3d 54 (2006) (addresses sentencing post-Foster)
State v. Gipson, 80 Ohio St.3d 626 (1998) (defendant bears burden to demonstrate indigency for waiver of mandatory fines)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (standard for abuse of discretion review)