State v. OgdenState v. Ogden
H. Leon Hewitt, Cincinnati, Ohio, for appellant.
Aaron E. Haslam, Adams County Prosecuting Attorney, West Union, Ohio, for appellee.
Wilkin, J.
{¶1} This is an appeal from an Adams County Court of Common Pleas judgment entry of conviction resulting from appellant, Brenda L. Ogden‘s (“Ogden“) plea to theft from a person in a protected class, a fourth-degree felony. On appeal, Ogden asserts that the trial court erred by sentencing her to jail time as a condition of her community control rather than house arrest. In addition, Ogden claims her guilty plea was infirm because she was misled about the consequences of the plea.
{¶2} After reviewing the record, the parties’ briefs, and the applicable law, we find the trial court properly ensured Ogden‘s plea was knowing, voluntary, and intelligent. Further, we find the trial court acted within its discretion by sentencing Ogden to jail time as a community control sanction. However, we find the community control sanction is otherwise contrary to law because the trial court inappropriately sentenced Ogden to
PROCEDURAL HISTORY AND FACTS
{¶3} On February 13, 2023, a grand jury returned an indictment charging Ogden with the sole count of theft from a person in a protected class, in violation of
{¶4} In late April and early May of 2022, Akers, who had a fractured right shoulder, hired Ogden, doing business as Southern Ohio Custom Cleaning, to spring clean her home. Akers paid Ogden approximately $600 for the work. Akers had previously hired Ogden to clean her residence in 2021 and they subsequently became “good friends.”
{¶5} On May 3, 2022, Akers discovered that several items of value were missing from her home such as silver coins, gold, and jewelry of sentimental and significant monetary value, including Akers’ wedding rings. Akers then contacted Ogden who stated her employee “Kelly” had left the items in a van. However, when Akers spoke to Kelly, Kelly informed Akers she had witnessed Ogden pawning the jewelry for $650 and then purchasing $500 worth of lottery tickets. Kelly also told Akers that after purchasing
{¶6} Akers confronted Ogden by text message. Ogden responded by saying she would like to make it right and she would replace everything. Although initially denying the theft while speaking to detectives, Ogden eventually admitted she had taken the rings and pawned them. Later Akers contacted the Adams County Sheriff‘s Office to report jewelry had been taken from her residence without her permission the first week of May, 2022.
{¶7} The case was set for a two-day jury trial. However, on the morning of the first day of trial, July 31, 2023, Ogden entered a guilty plea to the sole count, and the trial court found her guilty.
{¶8} At a hearing on August 17, 2023, the trial court sentenced Ogden to three years of community control, with a stated sentence of 18 months, 270 days of incarceration in the county jail, 160 hours of community service, $960 in jury fees and $3,100 in restitution. Ogden appeals this judgment, assigning two errors.
ASSIGNMENTS OF ERROR
I. BRENDA OGDEN BELIEVED SHE WAS A CANDIDATE FOR HOME INCARCERATION DUE TO HER FRAGILE HEALTH AND SHOULD NOT HAVE BEEN SENTENCED TO JAIL.
II. BRENDA OGDEN BELIEVES SHE WAS DENIED DUE PROCESS UNDER THE LAW BY BEING MISLED INTO TAKING A GUILTY PLEA AND IS NOW SERVING A SENTENCE NOT COMMENSURATE WITH HER CRIME.
I. FIRST ASSIGNMENT OF ERROR
{¶9} In her first assignment of error Ogden claims the trial court erred in sentencing her to jail time as a sanction for her community control sentence rather than
A. LAW
1. STANDARD OF REVIEW
{¶10} Generally, appellate review of felony sentences employs the standard of review 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.
Thus, an appellate court may vacate or modify a sentence only if the court concludes, by clear and convincing evidence, either the record does not support the trial court‘s findings under certain statutes, or the sentence is otherwise contrary to law.
{¶11} “Clear and convincing evidence is that measure or degree of proof . . . which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” State v. Marcum, 2016-Ohio-1002, ¶ 22 quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. The statute does not require the trial court to support its findings by clear and convincing evidence; rather, the court of appeals must clearly and convincingly find that the record does not support the trial court‘s findings. State v. Seymour, 2024-Ohio-5186, ¶ 8 (4th Dist.), citing State v. Spangler, 2023-Ohio-2003, ¶ 17 (4th Dist.). “In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.” Id., State v. Spangler, 2023-Ohio-2003, ¶ 17 (4th Dist.), quoting State v. Pierce, 2018-Ohio-4458, ¶ (8th Dist.), quoting State v. Venes, 2013-Ohio-1891, ¶ 20-21 (8th Dist.).
{¶12} Further, on review, ” ’
2. COMMUNITY CONTROL SANCTIONS - FELONY
{¶13}
Pursuant to
R.C. 2929.15 , under the appropriate circumstances, such as when a prison term is not required, a court may impose community control sanctions as a sentence for a felony offense.R.C. 2929.16(1)-(6) sets out a non-exhaustive list of residential community control sanctions that include entering a [community-based correctional facility], jail [up to six months], halfway house, etc.R.C. 2929.17(A)-(D) sets out a non-exhaustive list of non-residential community control sanctions that includes a term of day reporting, house arrest with electronic monitoring, community service, drug treatment program, etc.
State v. Marcum, 2020-Ohio-3962, ¶ 8-9. Thus,
B. ANALYSIS
{¶14} Ogden cites due process principles and
{¶15} The record shows at the sentencing hearing the trial court stated it “has considered the principles and purposes of sentencing under Ohio Revised Code Section 2929.11(A).” The trial court acknowledged “this court must and will * * * balance the seriousness and recidivism factors of 2929.12.” Further, the August 17, 2023 judgment entry on sentence reiterates that the court considered “the principle and purposes of sentencing under Ohio Revised Code Section 2929.11(A)” and “has balanced the seriousness and recidivism factors of ORC 2929.12.” Yet, as the State observes,
{¶16} In her second assignment of error Ogden asserts “she was misled into believing she would not be sentenced to incarceration prior to her taking a guilty plea.” Therefore, it appears Ogden challenges the voluntariness of her plea. In response, the State contends that Ogden‘s plea was entered into knowingly and voluntarily, and that she understood and acknowledged the nature of the charges against her at the time of the plea.
A. LAW
1. STANDARD OF REVIEW
{¶17} A guilty plea involves a waiver of constitutional rights such that a defendant‘s decision to enter a plea must be knowing, intelligent, and voluntary. State v. Earl, 2024-Ohio-5682, ¶ 8 (4th Dist.), citing State v. Dangler, 2020-Ohio-2765, ¶ 10. Therefore, a defendant must knowingly, intelligently, and voluntarily enter a plea, otherwise the plea is unconstitutional. Earl at ¶ 8, citing State v. Leib, 2024-Ohio-1081, ¶ 13 (4th Dist.). The trial court has a duty to ensure a plea is constitutional by making certain a defendant has a full understanding of what the plea connotes and its consequence. State v. Littler, 2023-Ohio-4759, ¶ 13 (4th Dist.), citing State v. Tolle, 2022-Ohio-2839, ¶ 13 (4th Dist.) Accordingly, appellate courts typically affirm the acceptance of a guilty plea if the record reveals that the trial court “engaged in a meaningful dialogue with the defendant and explained ‘in a manner reasonably intelligible to that defendant‘” the consequences of the plea. State v. Harp, 2024-Ohio-2120 at ¶ 13 (4th Dist.) citing State v. Ballard, 66 Ohio St. 2d 473 (1981), paragraph two of the syllabus.
{¶19} “When appellate courts evaluate whether a defendant knowingly, intelligently, and voluntarily entered into a guilty plea, a court must independently review the record to ensure that the trial court complied with
{¶20} Appellate courts apply a de novo standard of review when evaluating a plea‘s compliance with
2. ANALYSIS
{¶21} While Ogden does not specifically address the provisions of
{¶22} More importantly, the trial court properly explained the maximum penalties to Ogden. Additionally, the trial court specifically informed Ogden she could serve local jail time even if she received community control:
COURT: Do you have any questions about community control or the consequences for violation of community control:
BRENDA OGDEN: No, sir.
COURT: So, I just wanna make sure, I‘m sure your counsel has been very thorough on this, but if you‘re not sent to, if you‘re not sentenced to prison, you can still be required to be incarcerated in the locally, in the Adams County Jail as part of the community control sanctions. Do you understand that?
BRENDA OGDEN: Yes, sir.
COURT: Do you have any questions about that?
BRENDA OGDEN: No, sir.
COURT: Alright. So, do you have any questions whatsoever about community control or the consequences for any violations, ma‘am?
BRENDA OGDEN: No, sir.
The court also explained to Ogden that the State would not bring other specific charges as part of the plea agreement and then went on to ask:
COURT: Other than those promises made by the state, as part of this plea agreement, have there been any other promises made to you by any other persons that, uh, you would receive a specific sentence from this court or that the court will be easy or leaning [sic] upon you at the time of sentencing?
BRENDA OGDEN: No, sir.
{¶23} While Ogden claims she did not know at the time of the plea a community control sanction could include local jail time, the plea hearing transcript reflects the court specifically told her that was a possibility. The record also shows Ogden had extensive discussions with counsel and was satisfied with her counsel‘s advice. Further, at the plea hearing the parties agreed they would argue sentencing at the sentencing hearing. In addition, “[a]t the pleading stage, a defendant must know the possible ramifications of his plea, not the future sentencing decision of the trial court.” State v. Milite, 2020-Ohio-5384, ¶ 19 (11th Dist.), citing State v. Reed, 2010-Ohio-1096, ¶ 24 (7th Dist.). A trial court is also not required to “explore every conceivable nuance of the statutory
{¶24} In the instant case, the trial court clearly informed Ogden about the ramifications of the plea. In fact, in some instances, the court asked Ogden to describe herself what her understanding was of various aspects of the plea.
{¶25} We would also observe that similar challenges that pleas were not voluntary, knowing, and intelligent because a defendant allegedly did not know community control could carry potential county jail incarceration pursuant to
{¶26} Therefore, we overrule Ogden‘s second assignment of error as it lacks merit.
CONCLUSION
{¶27} Accordingly, we find that Ogden entered into her plea knowingly, intelligently, and voluntarily; therefore, we affirm the plea and conviction. However,
JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED FOR RESENTENCING.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and the CAUSE IS REMANDED FOR RESENTENCING. Appellant and appellee shall split the costs equally.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the ADAMS COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Smith, P.J., and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.