State v. Wittenberg
2017 Ohio 654
| Ohio Ct. App. | 2017Background
- Police executed a search warrant at Marc Wittenberg’s home and seized ~8,800 grams of marijuana and ~900 grams of packaged hashish.
- Wittenberg pleaded guilty (pursuant to a plea agreement) to two counts of trafficking in drugs (third-degree felonies) and one count of possessing criminal tools (fifth-degree felony).
- Each original count included one-year firearm, schoolyard, and juvenile specifications; plea reduced charges to the three counts noted above.
- At sentencing the trial court imposed 12 months of community control sanctions plus a $5,000 fine and court costs instead of a prison term.
- The State appealed, arguing the trial court erred by imposing community control despite the statutory presumption in favor of a prison term for aggravated drug trafficking and by failing to make the required R.C. 2929.13 findings on the record.
- The appellate court reviewed whether the trial court made the statutory findings required to reject the presumption of imprisonment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by imposing community control when a statutory presumption of prison applied | Trial: The court must impose prison unless it makes the R.C. 2929.13(D)(2) findings on the record justifying community control | Wittenberg: Community control was appropriate (relevant mitigating factors presented at sentencing) | Court vacated sentence and remanded because the trial court did not make the required R.C. 2929.13 findings on the record |
Key Cases Cited
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (standard for appellate review of sentences — vacate/modify only if record does not support sentence by clear and convincing evidence)
- State v. Mathis, 109 Ohio St.3d 54 (Ohio 2006) (when required findings under R.C. 2929.13(D) are missing, appellate court must remand for the trial court to state findings on the record)
- State v. Heath, 170 Ohio App.3d 366 (Ohio App. 2007) (trial court must explicitly state on the record the R.C. 2929.13 findings to impose community control where presumption of prison applies)