STATE OF OHIO v. ASHLEY N. GIBSON
Appellate Case No. 2016-CA-12
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
February 24, 2017
[Cite as State v. Gibson, 2017-Ohio-691.]
WELBAUM, J.
Trial Court Case Nos. 2012-CR-260 and 2013-CR-64 (Criminal Appeal from Common Pleas Court)
Rendered on the 24th day of February, 2017.
JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor‘s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
AMY E. FERGUSON, Atty. Reg. No. 0088397, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant
Facts and Course of Proceedings
{2} In Champaign County Case No. 2012-CR-260, Gibson pled guilty to two counts of possessing criminal tools in violation of
{3} In Champaign County Case No. 2013-CR-64, Gibson pled guilty to various offenses that she had committed before she was sentenced in Case No. 2012-CR-260, but while she was released on personal recognizance and awaiting sentencing. Specifically, Gibson pled guilty to five counts of forgery in violation of
{4} On June 2, 2014, Gibson‘s probation officer filed a notice of supervision violation for both Case Nos. 2012-CR-260 and 2013-CR-64. The notice alleged that Gibson violated the conditions of her community control by changing her residence without permission from her supervising officer and by failing to report to her supervising officer as ordered.
{5} Following the violation notice, on June 10, 2014, the trial court held a hearing on the merits of the alleged violations. During the hearing, Gibson admitted to both violations and the trial court proceeded to sentencing. After the State recommended that Gibson be returned to community control, and after the trial court considered the possible penalties under
{6} Approximately two years later, on May 23, 2016, Gibson‘s probation officer
{7} Following the second violation notice, on June 6, 2016, the trial court held a hearing on the merits of the alleged violations. At the hearing, Gibson once again admitted to both violations and the trial court once again proceeded to sentencing. During sentencing, the court considered the purposes and principles of sentencing in
{8} For Case No. 2012-CR-260, the trial court sentenced Gibson to serve 11 months in prison for both counts of possessing criminal tools, as well as for the count of possessing of heroin. The trial court then ordered the 11-month sentences to run concurrently with each other for a total prison term of 11 months.
{9} For Case No. 2013-CR-64, the trial court sentenced Gibson to serve 11 months in prison for each of her five forgery counts, as well as for the count of possessing heroin. For the petty theft count, the trial court ordered Gibson to serve five months in jail. The trial court then ordered the 11-month prison sentences for forgery and the five-month jail sentence for petty theft to run concurrently with each other, but consecutively to the 11-month prison sentence for possessing heroin. Accordingly, Gibson was sentenced to a total term of 22 months in prison in Case No. 2013-CR-64.
{11} Despite receiving a significantly reduced prison sentence, Gibson now appeals from the trial court‘s sentencing decision, raising a single assignment of error for review.
Assignment of Error
{12} Gibson‘s sole assignment of error is as follows:
A JUDGMENT REVOKING DEFENDANT‘S COMMUNITY CONTROL AND SENTENCING HER TO PRISON WAS IMPROPER.
{13} Under her sole assignment of error, Gibson concedes that a prison term is an appropriate sanction for violating community control sanctions, but claims that under the circumstances of this case, the trial court‘s decision to impose a 33-month prison term and consecutive sentences was an abuse of discretion because her violations did not involve new crimes, were not egregious or violent in nature, and were the result of a drug relapse.
{14} We review prison sentences imposed for violations of felony community control sanctions in accordance with the Supreme Court of Ohio‘s decision in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. See State v. Von Ward, 2d Dist. Champaign No. 2015-CA-42, 2016-Ohio-5733 (applying the standard of review
{15}
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{16} Accordingly, this court may vacate or modify Gibson‘s sentence only if we “determine by clear and convincing evidence that the record does not support the trial court‘s findings under relevant statutes or that the sentence is otherwise contrary to law.” Marcum at ¶ 1.
{17} In this case, the trial court made findings under two of the “relevant statutes” referred to in
R.C. 2929.13(B)
{18} In sentencing Gibson, the trial court made a finding under
{19} A review of the record, however, reveals that the offenses Gibson pled guilty to in Case No. 2013-CR-64 were committed before she was sentenced to community control sanctions in Case No. 2012-CR-260.1 Nevertheless, the record establishes that Gibson was released on personal recognizance in Case No. 2012-CR-260 while she
R.C. 2929.14(C)(4)
{20} “When an offender‘s community control is revoked and multiple prison terms are imposed for the underlying offenses, the trial court must make the findings under
{21} Pursuant to
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense. - At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{22} “‘[A] trial court is required to make the findings mandated by
{23} In this case, the record establishes that the trial court made all the required consecutive-sentence findings under
In imposing consecutive sentences, the Court finds that consecutive sentencing is necessary to protect the public from future crime or to punish the Defendant. Consecutive sentences are not disproportionate to the seriousness of Defendant‘s conduct and the danger she poses to the public. And the Defendant committed one or more of the multiple offenses while she was on community control for a prior offense.
Plea and Sentencing Hearing Trans. (June 6, 2016), p. 23.
{24} In the sentencing entry, the trial court similarly provided that:
In imposing consecutive sentences, the Court makes the following findings per
R.C. 2929.14(C)(4) : Consecutive sentencing is necessary to protect the public from future crime or to punish the Defendant and consecutive sentences are not disproportionate to the seriousness of the Defendant‘s conduct and to the danger the Defendant poses to the public.R.C. 2929.14(C)(4) . The Defendant committed one or more of the multiple offenses while the Defendant was awaiting trial or sentencing, was on community control or was under post release control for a prior offense.R.C. 2929.14(C)(4)(a) .
Journal Entry of Community Control Merits and Disposition (June 6, 2016), Champaign County Court of Common Pleas Case Nos. 2012-CR-260 and 2013-CR-64, Docket Nos. 74 and 79, p. 7.
{25} “[W]here a trial court properly makes the findings mandated by
{26} In imposing consecutive sentences, the trial court found during the sentencing hearing that
{27} As previously discussed, the record indicates that Gibson was not yet placed on community control in Case No. 2012-CR-260 at the time she committed the offenses in Case No. 2013-CR-64. Gibson was, however, awaiting sentencing in Case
{28} The record also does not clearly and convincingly fail to support the trial court‘s other consecutive sentence findings—that consecutive sentencing is necessary to protect the public from future crime or to punish the offender and is not disproportionate to the seriousness of the defendant‘s conduct in the commission of the offenses and to the danger she posed to the public.
{29} The record indicates that while Gibson was released on personal recognizance and was awaiting her sentencing for two counts of possessing criminal tools and possession of heroin in Case No. 2012-CR-260, she continued to possess heroin, committed petty theft, and through several counts of forgery, stole money from multiple victims. The record further indicates that Gibson has a history of criminal convictions and has not responded favorably to sanctions previously imposed given her multiple community control violations, which Gibson admitted on the record was due to her pattern
{30} Moreover, Gibson admitted to violating the conditions of her community control by changing her residence without permission from her supervising officer and by failing to report to her supervising officer as ordered for five months. Gibson had previously admitted to committing the same type of violations in 2014, and was given a second chance to comply with her conditions without penalty. Despite being given a second chance, Gibson violated community control in the same manner throughout 2015 and part of 2016.
{31} For the foregoing reasons, we do not clearly and convincingly find that the record does not support the trial court‘s consecutive sentence findings. Accordingly, we uphold the trial court‘s decision to impose consecutive sentences.
Gibson‘s 33-Month Prison Sentence is Not Otherwise Contrary to Law
{32} We also do not clearly and convincingly find that Gibson‘s 33-month sentence is otherwise contrary to law. “The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” (Citation omitted.) State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in
{33}
{34} “[A]n appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.” Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 at ¶ 23.
{35} As previously noted, we do not clearly and convincingly find that Gibson‘s 33-month prison sentence is contrary to law, nor do we find that the record fails to support Gibson‘s sentence. Gibson‘s individual prison sentences are within the authorized statutory range provided in
With regard to more serious factors as they pertain to the community
control violations, the Court finds that the Defendant was on community control for two separate cases involving convictions for possession of heroin. Defendant failed to report to her probation officer for five months due to her subsequent use of heroin. And this is Defendant‘s second community control violation for failure to report to her probation officer. Court also notes that the second community control violation case not only involved drugs—not only involved drug use, but also an organized scheme to steal from multiple individuals. With regard to less serious in factors, the Court finds in committing the offense the Defendant did not cause or expect to cause physical harm to persons or property. Court concludes that factors establishing the defendant‘s conduct is more serious outweigh factors establishing that conduct is less serious.
With regard to recidivism and more likely to commit future crimes, the Court finds that at the time she committed 13 CR 64 that the Defendant was on community control in 12 CR 260. She has a history of criminal convictions. She has not responded favorably to sanctions previously imposed. She has demonstrated a pattern of drug abuse related to the offense. And she refuses treatment by virtue of her failure to maintain contact with the probation department.
With regard to less likely to commit future crimes, the Court finds that in committing the offense the Defendant was not adjudicated a delinquent child. Court concludes factors establishing the Defendant‘s recidivism is
more likely outweigh factors establishing recidivism is less likely. The Court considered the military service. Finds she has no military service record.
Plea and Sentencing Hearing Trans. (June 6, 2016), p. 20-21.
{36} Although the trial court incorrectly found that Gibson committed the offenses in Case No. 2013-CR-64 while she was on community control in Case No. 2012-CR-260, as previously discussed, that finding amounts to harmless error. In making that finding, the trial court was weighing the recidivism factor under
At the time of committing the offense, the offender was under release from confinement before trial or sentencing; was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code; was under post-release control pursuant to section2967.28 or any other provision of the Revised Code for an earlier offense or had been unfavorably terminated from post-release control for a prior offense pursuant to division (B) of section2967.16 or section2929.141 of the Revised Code; was under transitional control in connection with a prior offense; or had absconded from the offender‘s approved community placement resulting in the offender‘s removal from the transitional control program under section2967.26 of the Revised Code.
While the trial court based its finding under
{37} Because we are unable to find by clear and convincing evidence that the record does not support the trial court‘s findings under
Conclusion
{38} Having overruled Gibson‘s sole assignment of error, the judgment of the trial court is affirmed.
DONOVAN, J. and FROELICH, J., concur.
Copies mailed to:
Jane A. Napier
Amy E. Ferguson
Hon. Nick A. Selvaggio