STATE OF OHIO, PLAINTIFF-APPELLEE, v. BART W. KEGLEY, DEFENDANT-APPELLANT.
CASE NO. 3-16-06
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
December 29, 2016
2016-Ohio-8467
Appeal from Crawford County Common Pleas Court Trial Court No. 14-CR-0072
Judgment Affirmed
APPEARANCES:
Adam Charles Stone for Appellant
Matthew E. Crall for Appellee
{1} Defendant-appellant, Bart W. Kegley, appeals the May 26, 2016, judgment of the Crawford County Court of Common Pleas revoking his community control sanctions and imposing a prison term of sixty-seven months. On appeal, Kegley argues that the trial court erred in (1) revoking his community control, (2) failing to notify him that he would be subject to a specific term of prison upon violating community control, and (3) imposing a prison term not supported by the record.
{2} On April 14, 2014, the Crawford County Grand Jury returned a three-count indictment against Kegley on Count One: Possession of Drugs—to wit: Marijuana, in violation of
{3} On September 23, 2014, Kegley entered into a negotiated plea agreement and plead guilty to Counts One and Two as stated in the indictment, and Count Three was amended to remove the allegation that the offense was committed in the vicinity of a juvenile, thereby reducing the level of the offense to a felony of
{4} On August 24, 2015, a motion was filed by State Probation Officer Mark Stalter requesting the trial court issue a show cause order for Kegley to demonstrate why his community control should not be revoked. Probation Officer Stalter alleged that Kegley had violated the terms of his community control supervision on or about August 19, 2015, by (1) possessing marijuana, (2) possessing drug paraphernalia, (3) testing positive for the use of Cocaine, and (4) testing positive for the use of Marijuana.
{5} On November 30, 2015, Kegley appeared before the trial court for a hearing on the motion for revocation of his community control. Kegley admitted to violating the terms of his community control and the case proceeded to sentencing. In its December 7, 2015 Judgment Entry, the trial court revoked Kegley‘s
{6} Kegley appealed the trial court‘s decision to revoke his community control and to impose a prison term of maximum, consecutive sentences.
{7} On May 16, 2016, this Court reversed the trial court‘s sentence as contrary to law because it failed to make the statutory findings necessary to impose consecutive sentences found in
{8} On May 25, 2016, the trial court held a new hearing on the motion for revocation of Kegley‘s community control. Kegley again admitted to the conduct comprising the violations of his community control. The trial court heard extensive arguments from both parties regarding the consequences for Kegley‘s violations. The State advocated for the imposition of a prison term, while defense counsel insisted that an alternative sanction would be more appropriate. After considering the arguments from both sides and reviewing documentation from an outpatient drug treatment center submitted by Kegley, the trial court stated on the record its findings based upon the relevant statutory factors to support its decision to impose
{9} Kegley filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT COMMITTED PLAIN ERROR IN VIOLATION OF
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT‘S FINDINGS OF FACT UNDER
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT COMMITTED PLAIN ERROR IN VIOLATION OF
Third Assignment of Error
{11} In his third assignment of error, Kegley maintains that the trial court erred at his original sentencing hearing in 2014 when it placed him on five years of community control and failed to adequately notify him that he is subject to a specific prison term if he violated the terms of his community control. The premise of Kegley‘s argument is based purely on semantics. Kegley claims that upon placing him on community control in 2014, the trial court only informed him that he was “subject to” an eighty-four-month prison term if he violated the terms of his community control, and asserts that he was not notified by the trial court that it “would” impose a prison term, as opposed to an alternative sanction, as a consequence of his community control violations.
{12} The record establishes that the trial court notified Kegley in the sentencing entry placing him on community control that “if [he] fails to successfully complete community control that [he] is subject to thirty-six (36) months of prison on Count I; twelve (12) months in prison on Count II; and thirty-six (36) months [in] prison on amended Count III for a total of eighty-four months in prison.” (Doc.
First Assignment of Error
{13} In his first assignment of error, Kegley argues that the trial court committed plain error in revoking his community control and in imposing a prison term upon him for violating the terms of his community control. Specifically, Kegley directs this court to
(1) Except as provided in division (F) of this section, for any drug offense that is a violation of any provision of Chapter 2925. of the Revised Code and that is a felony of the third, fourth, or fifth degree, the applicability of a presumption under division (D) of this section in favor of a prison term or of division (B) or (C) of this section in determining whether to impose a prison term for the offense shall be determined as specified in section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06, 2925.11, 2925.13, 2925.22, 2925.23, 2925.36, or 2925.37 of the Revised Code, whichever is applicable regarding the violation.
(2) If an offender who was convicted of or pleaded guilty to a felony violates the conditions of a community control sanction imposed for the offense solely by reason of producing positive results on a drug test, the court, as punishment for the violation of the sanction, shall not order that the offender be imprisoned unless the court determines on the record either of the following:
(a) The offender had been ordered as a sanction for the felony to participate in a drug treatment program, in a drug education program, or in narcotics anonymous or a similar program, and the offender continued to use illegal drugs after a reasonable period of participation in the program.
(b) The imprisonment of the offender for the violation is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code.
{14} On appeal, Kegley characterizes his violations of community control as solely producing a positive drug test. However, in addition to testing positive for marijuana and cocaine on August 19, 2015, Kegley was also found to be in possession of marijuana and in possession of drug paraphernalia. Thus, because Kegley‘s violations of his community control sanctions were not based solely on a positive drug test,
{15} In his second assignment of error, Kegley argues that the trial court‘s decision to impose a prison sentence, instead of an alternative non-residential sanction or drug treatment program, for his violations of community control is not supported by the record. Pursuant to the Supreme Court of Ohio‘s recent holding in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 7, this court will review a felony sentence using the standard set forth in
(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
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 section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{17} Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. Cross v. Ledford, 161 Ohio St. 469, (1954), paragraph three of the syllabus.
{18} Revised Code Chapter 2929 governs sentencing.
{19} Meanwhile,
{20} “Although the trial court must consider the purposes and principles of felony sentencing set forth in
{21} On remand in this case for resentencing, the trial court devoted a great deal of time on the record to stating its reasons supporting its determination that a
{22} In determining the appropriate sanction for Kegley‘s community control violations, the trial court discussed his prior criminal record which was detailed in the post-sentence investigation report. The trial court noted that in 1995 Kegley committed criminal damaging by slashing tires in a parking lot. When law enforcement apprehended Kegley, they found brass knuckles in his possession. The trial court stated that it did not intend to give this offense “a huge amount of weight in this particular case,” but stated it was significant because “that‘s the beginning of when criminal behavior began to creep up” in Kegley‘s life. (May 25, 2016 Hrg. at 25).
{23} In 2011, Kegley was convicted of minor misdemeanor possession of marijuana. Two years later, in 2013, Kegley was convicted of possession of marijuana in violation of a Crestline City Ordinance. The trial court noted that the facts of the offense indicated that Kegley‘s vehicle was pulled over by law enforcement and $827.90 in small bills was found in the vehicle, in addition to the marijuana. Kegley received thirty days in jail suspended and was placed on two
{24} The trial court also discussed the underlying felony offenses for which Kegley was placed on the five-year term of community control in this case. In March of 2014, the Crawford County Sheriff‘s Office executed a search warrant of Kegley‘s home, based upon information from a source who indicated that Kegley maintained and sold a large amount of marijuana from his home, and also sold smaller amounts of cocaine.
{25} Law enforcement indicated that the odor of marijuana was overpowering upon entering the home. Officers encountered an eighteen-year-old and a sixteen-year-old, who appeared to be the children of Kegley and his longtime girlfriend and co-defendant. A fifteen-year-old girl was also found in the home. Law enforcement made contact with Kegley and took him into custody as he began yelling out a string of numbers to his girlfriend. Kegley‘s girlfriend was found in the master bedroom with a large quantity of marijuana and a loaded .22 rifle. She was also taken into custody. A sweep of the home revealed several drug paraphernalia items, various quantities of marijuana stashed throughout the home, and a smaller amount of cocaine. Nine firearms, many loaded with ammunition, were also found in the home. Some of these firearms were located in a gun safe, along with some cash and a large amount of marijuana, and some were found
{26} The officers moved to the pole barn where the source had indicated a large amount of marijuana was stored. There, they discovered a grow operation consisting of 93 marijuana plants, along with grow lights, buckets, gauges, heating items, large amount of potting soil and other marijuana-related grow items.
{27} The trial court found it significant that Kegley‘s criminal record demonstrated that “[a]t no point has he ever been able to successfully complete any community control.” (May 25, 2016 Hrg. at 36). The trial court also noted the significance of the nature of Kegley‘s community control violations in this case—i.e., possession of marijuana and of drug paraphernalia—as being very similar to the underlying offenses for which he was placed on community control, which also indicated a lack of amenability to community control sanctions.
{28} For his part, Kegley maintained that he sought treatment at Maryhaven, a local outpatient drug treatment facility, and claimed to take his substance abuse treatment seriously. Kegley provided documents from Maryhaven to the trial court, which demonstrated that he took six urine drug test at the facility, with one test producing a negative result and five producing an “inconclusive” result
{29} In considering this proposed mitigating evidence, the trial court stated that “[n]ow, the Court is quite familiar with creatine being out of range. And, in fact, if you look down here [referring to the test results documentation] where they talk about his tests they gave him, let me see, there‘s one, two, three, four, five, six, they actually say one negative test but they actually consider those five [inconclusive results] positive tests if you want to go all the way down and look at the fine print.” (Id.) The trial court observed that “it appears Mr. Kegley was saying the right things. It doesn‘t appear that he was doing the right things” and noted that Kegley had demonstrated a pattern of either avoiding or failing to take drug treatment seriously. (Id. at 34, 36).
{30} In addition to the four violations of his community control, to which he admitted, the trial court also cited the severity of the underlying facts in this case, Kegley‘s criminal history, specifically his unsuccessful completion of community control, and his lack of commitment to drug treatment as factors supporting its decision to revoke Kegley‘s community control and to impose a prison term upon him. The trial court also determined on the record that the imposition of a sixty-seven-month prison term was consistent with the principles and purposes of felony sentencing stated in
{32} For the reasons stated above, we conclude that Kegley failed to prove by clear and convincing evidence that the record does not support the trial court‘s sentence in this case. Therefore, we do not find the sentence entered by the trial court to be contrary to law and overrule the second assignment of error.
{33} The trial court‘s judgment is hereby affirmed. This matter is remanded solely for the trial court to enter a nunc pro tunc entry that includes the consecutive sentencing findings that it made at the May 26, 2016 resentencing hearing.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.