State of Ohio v. Jayme L. Grace
Court of Appeals No. S-18-044
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
Decided: September 20, 2019
2019-Ohio-3812
Trial Court No. 18 CR 563
* * * * *
Timothy Braun, Sandusky County Prosecuting Attorney, and Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.
James H. Ellis, III, for appellant.
* * * * *
MAYLE, P.J.,
{¶ 1} This is an appeal from an October 9, 2018 judgment of the Sandusky County Court of Common Pleas that sentenced the defendant-appellant, Jayme L. Grace, to three concurrent 12-month prison terms for two counts of trafficking in heroin and one count of aggravatеd possession of drugs―all felonies of the fifth degree―after the court found
Facts and Procedural History
{¶ 2} The following undisputed facts are relеvant to this appeal. On May 22, 2018, Grace was indicted on two counts of trafficking in heroin, in violation of
{¶ 3} Grace moved for Intervention in Lieu of Conviction pursuant to
{¶ 4} That same day, Grace signed and initialed “The General Rules and Conditions of Probation of The Sandusky County Common Pleas Court,” which incorrectly stated that the trial court had placed her under community control when, in fact, the court had granted her request for intervention in lieu of conviction. Regardless, it appears from our review of the record that the court (and parties) collectively understood that this ill-fitting probation form was intended to function as Grace‘s “intervention plan” under
{¶ 6} On September 7, 2018, Grace appeared before the court, without an attorney, for a hearing on her allegеd “probation violation.” The court noted that the parties were appearing “on a notice of probation violation, the allegation being that on September 4th, 2018 you admitted to abusing heroin and Percocet; further that you did test positive for Fentanyl in violation of your conditions under the Intervention program.” Grace denied the allegations and requested a lawyer. The court granted her request, and continued the matter so that an attorney could be appointed. The court released Grace on her own recognizance, with an ankle monitor in place, and told her, “[s]hould you test positive one more time, you will go to jail. I will act on your guilty plea. I will make а finding, and we‘ll see where it goes from there, but – Fentanyl scares me. I would hope that it scares you.”
{¶ 7} On September 24, 2018, the state filed another “Notice of Probation Violation,” which, again, incorrectly stated that Grace “was placed on community control for a period of (3) years.” The notice states that Grace had “violated Rule #1 аnd #4 of the terms and conditions of her probation rules” by testing positive for Fentanyl and Buprenorphine on September 6, 2018, and testing positive for Oxycodone on September 14, 2018.
On October 3, 2018, Grace appeared before the court for hearing, this time with counsel. She admitted the “violations,” as alleged by the state, but asked the court to continue her ILC. The state requested that the court enter a finding on the previously-entered guilty plea and proceed to sentencing. The trial court denied Grace‘s request to continue on Intervention, found her guilty of the felonies, and stated that it was “going to impose the underlying [prison] sentence.” At the urging of the prosecutor, defense counsel, and Grace, however, the court continued the matter for one week.
{¶ 8} When sentencing resumed on October 9, 2018, the court imposed three, 12-month prison terms, one for each count, to be served concurrently. Grace appealed and asserts a single assignment of error:
ASSIGNMENT OF ERROR: The trial court erred by failing to comply with applicable statutеs in sentencing the appellant.
Law and Argument
{¶ 9} Grace does not challenge her removal from the ILC program. Instead, she claims that, following her removal and conviction on the underlying felonies, the trial court erred by sentencing her to prison. Specifically, Grace argues that the trial court abused its discretion by imposing three, 12-month prison terms, to be sеrved concurrently.
{¶ 10} “[A]ppellate courts may not apply [an] abuse-of-discretion standard in sentencing-term challenges.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10. Instead, we review such sentencing challenges under
(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.
R.C. 2953.08(G)(2) .
{¶ 11} A sentence is not clearly and convincingly contrary to law where the trial court has considered the purposes and principles of sentencing under
{¶ 12} Grace argues that the trial court erred by imposing a prison term, rather than a community control sanction, under
{¶ 13}
(a) Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence thе offender to a community control sanction of at least one year‘s duration if all of the following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year‘s duration that are available for persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.
(b) The court has discretion to impose a prison tеrm upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply: [(i)-(xo) described therein]
(Emphasis added.).
{¶ 14} Thus,
{¶ 15} Grace argues, and the state does not dispute, that she met the presumption in favor of community control under
{¶ 16} Recently, we held that, under the plain language of
{¶ 17} We next consider Grace‘s claim that the trial court failed to consider the principles and purposes of felony sentencing under
{¶ 18} Grace correctly points out that the trial court did not specifically indicate, at sentencing or in its judgment entry, that it considered these statutes. It is well recognized, however, that where the record is silent, there is a presumption that the trial court gave proper consideration to
{¶ 19}
{¶ 20}
{¶ 21} At sentencing in this case, the state argued that the trial court had a “responsibility to send [a] message to the community” by imposing a prison term because “without drug traffickers * * * we don‘t have drug users.” Grace‘s counsel requested that
There are so many opportunities for treаtment, but * * * it‘s that old argument – you can lead the horse to the water; you can‘t make them drink. I know a lot of people dropping dead because they wouldn‘t help themselves * * *.
My job is to help [Grace] reach her bottom quicker so she can say, yeah, I think it‘s time. * * * [W]e‘ve given her several opportunities to address the issue, and if I accept her excuse that, boy, it‘s hard, I know it‘s hard. * * * I‘m going to do what I think is best to help her reach her bottom. * * * It‘s a life or death sort of opportunity for her.
I‘m going to impose one year prison on each count. I will have them run concurrent. * * *
I understand you probably don‘t think kindly of me right now. Perhaps, when you get a little older, you‘ll thank me. Good luck. * * * In my mind, I‘m doing the right thing.
{¶ 22} Grace complаins that the trial court failed to consider the benefit to the community of allowing her to participate in drug rehabilitation. She maintains that the court was instead “intent on punishing [her] for her continued drug use.” To the contrary, the court‘s assessment – that Grace was “not able to help [her]self” and that she faced a “life or death” situation – reflects its judgment thаt incapacitating Grace was necessary
{¶ 23} Grace also complains that the trial court gave no indicatiоn that it considered such mitigating factors as her “expression of true remorse and desire to overcome her addiction.” While Grace professed her apologies, she also declined to identify where she obtained the Fentanyl, when asked by the court, except to say “Somebody,” which undercuts her claim of remorse. Accord, State v. Lucas, 11th Dist. Lake No. 2016-Ohio-063, 2017-Ohio-429, ¶ 14.
{¶ 24} We therefore find that Grace fails to rebut the presumption that the trial court considered the principles and purposes of felony sentencing under
{¶ 25} Finally, Grace alleges that the trial court was required to make certain factual findings before imposing the maximum sentence. In support, Grace cites cases interpreting a version of
{¶ 26} We find that the trial court complied with all applicable sentencing requirements when it sentenced Grace to prison and that her sentence is not clearly and convincingly contrary to law under
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, P.J. _______________________________
Gene A. Zmuda, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site аt: http://www.supremecourt.ohio.gov/ROD/docs/.