STATE OF OHIO, Plаintiff-Appellee -vs- DAVID RIGGLEMAN, Defendant-Appellant
Case No. 14-CA-17
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 2, 2014
2014-Ohio-5369
Hon. William B. Hoffman, P. J.; Hon. W. Scott Gwin, J.; Hon. Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 2012CR00224. JUDGMENT: Affirmed.
For Plaintiff-Appellant: KENNETH OSWALT, Licking County Prosecutor, BY: BRYAN MOORE, Assistant Prosecuting Attorney, 20 S. Second Street, 4th Floor, Newark, OH 43055
For Defendant-Appellee: WILLIAM CRAMER, 470 Olde Worthington Road, Suite 200, Westerville, OH 43085
Gwin, J.
{¶1} Appellant, David S. Riggleman appeals the March 3, 2014 re-sentencing in the Licking County Court of Common Pleas after remand from this Court.
Facts and Procedural History
{¶2} On April 27, 2012, the Licking County Grand Jury indicted appellant, David Riggleman, on two counts of aggravated trafficking in drugs in violation of
{¶3} A jury trial commenced on April 4, 2013. The jury found Riggleman guilty as charged. By judgment entry filed April 30, 2013, the trial court sentenced Riggleman to twelve months on each count, to be served consecutively.
{¶4} Prior to his sentencing, Riggleman pled guilty to three misdemeanor offenses in municipal court. Riggleman was plaсed on probation for one year. In addition, in a separate case, Riggleman was charged with various offenses, two felonies in the third and fifth degrees and two misdemeanors in the first and fourth degrees.
{¶5} Riggleman appealed claiming his sentence to prison was contrary to law, as the trial court‘s reasons for the prison sentence did not overcome the presumption for community control for fourth degree felonies. This Court agreed and reversed and remanded for resentencing pursuant to
{¶6} Riggleman was re-sentenced on March 3, 2014 and the same 2-year sentence was imposed.
Assignment of Error
{¶7} Riggleman raises one assignment of error,
{¶8} “I. THE TRIAL COURT VIOLATED THE RETROACTIVITY CLAUSE OF THE OHIO CONSTITUTION AND THE EX POST FACTO CLAUSE OF THE U.S. CONSTITUTION BY RETROACTIVELY APPLYING AMENDMENTS TO
R.C. 2929.13(B)(1)(B) THAT DISQUALIFIED APPELLANT FROM MANDATORY COMMUNITY CONTROL.”
Analysis
{¶9} Riggleman committed the underlying felonies in February 2012.
{¶10} At that time
(B)(1)(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, the court shall sentence the 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 or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.
(ii) The most serious charge against the оffender 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. (b) The court has discretion to impose a prison term 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 if any of the following apply:
(i) The offender committed the offense while having a firearm on or about the offender‘s person or under the offender‘s сontrol.
(ii) The offender caused physical harm to another person while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by the court.
(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction of at least one year‘s duration that is available for persons sentenced by the court.
Riggleman was originally sentenced on April 30, 2013.
{¶11} At that time
(B)(1)(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 the 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) оf 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 offеnse 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 term 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) The offender committed the offense whilе having a firearm on or about the offender‘s person or under the offender‘s control.
(ii) If the offense is a qualifying assault offense, the offender caused serious physical harm to another person while committing the offense,
and, if the offense is not a qualifying assault offense, the offender caused physical harm to another person while committing the offense. (iii) The offender violated a term of the conditions of bоnd as set by the court.
(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction of at least one year‘s duration that is available for persons sentenced by the court.
(v) The offense is a sex offense that is a fourth or fifth degree felony violation of any provision of
Chapter 2907. of the Revised Code.(vi) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.
(vii) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.
(viii) The offender held a public office or position of trust, and the offense related to that office or position; the offender‘s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender‘s professional reputation or position facilitated the offense оr was likely to influence the future conduct of others.
(ix) The offender committed the offense for hire or as part of an organized criminal activity.
(x) The offender at the time of the offense was serving, or the offender previously had served, a prison term.
(xi) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.
(c) If a court that is sentencing 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 believes that no community control sanctions are available for its use that, if imposed on the offender, will adequately fulfill the overriding principles and purposes of sentencing, the court shall contact thе department of rehabilitation and correction and ask the department to provide 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. Not later than forty-five days after receipt of a request from a court under this division, the department shall provide 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, if any. Upon making a request under this division that relates to a particular offender, a court shall defer sentencing of that offender until it receives from the department
the nаmes 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 or for forty-five days, whichever is the earlier.
Riggleman was re-sentenced on March 3, 2014.
{¶12} At that time,
(B)(1)(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 violеnce or that is a qualifying assault offense, the court shall sentence the 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 term 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 аssault offense if any of the following apply:
(i) The offender committed the offense while having a firearm on or about the offender‘s person or under the offender‘s control.
(ii) If the offense is a qualifying assault offense, the offender caused serious physical harm to another person while committing the offense, and, if the offense is not a qualifying assault offense, the offender caused physical harm to another person while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by the court.
(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction of at least one year‘s duration that is available for persons sentenced by the court.
(v) The offense is a sex offense that is a fourth or fifth degree felony violation of any provision of
Chapter 2907. of the Revised Code.
(vi) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.
(vii) In committing the offense, the offender attempted to causе or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.
(viii) The offender held a public office or position of trust, and the offense related to that office or position; the offender‘s position obliged the offender to prevent the offense or to bring those committing it to justice; or the оffender‘s professional reputation or position facilitated the offense or was likely to influence the future conduct of others.
(ix) The offender committed the offense for hire or as part of an organized criminal activity.
(x) The offender at the time of the offense was serving, or the offender previously had served, a prison term.
(xi) The offender committed the offense while under a community control sanction, whilе on probation, or while released from custody on a bond or personal recognizance.
(c) If a court that is sentencing 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 believes that no community control sanctions are available for its use that, if imposed on the offender, will adequately fulfill the overriding principles and purposes
of sentencing, the court shall contact the department of rehabilitation and correction and ask the department to provide 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. Not latеr than forty-five days after receipt of a request from a court under this division, the department shall provide 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, if any. Upon making a request under this division that relates to a particular offender, a сourt shall defer sentencing of that offender until it receives from the department 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 or for forty-five days, whichever is the earlier.
Ex Post Facto
{¶13} Retroactive changes in the measure of punishment are impermissibly ex pоst facto if they subject a defendant to a more severe sentence than was available at the time of the offense. See Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182(1937); State v. Walls, 96 Ohio St.2d at 447, 2002-Ohio-5059, 775 N.E.2d 841, ¶ 29. A “speculative and attenuated” possibility that the statutory change has increased the measure of punishment will not constitute an ex post facto violation. California Dept. of Corrections v. Morales, 514 U.S. 499, 510, 115 S.Ct. 1597, 131 L.Ed.2d 588(1995) In other words, Riggleman must demonstrate that he had more than a speculative chance under the old law of receiving community control sanctions instead of prison. State v. Walls, supra, 96 Ohio St.2d at 448, 2002-Ohio-5059 at ¶ 30, 775 N.E.2d at 841. Accord, State v. Paynter, 5th Dist. Muskingum No. CT2006-0034, 2006-Ohio-5542, ¶ 32.
{¶14}
{¶15} Riggleman аrgues, however that the trial court also relied upon the organized criminal activity exception and the “while on community control” provision that were not in
{¶17} In State v. Bowser the Court observed,
[I]t is well established in Ohio law that the court may consider information beyond that strictly related to the conviction offense. For example, the statute governing the contents of a PSI report simply says, “[T]he officer making the report shall inquire into the circumstances of the offense and the criminal record, social history, and present condition of the defendant.”
R.C. 2951.03(A) . The statutory directive no doubt results in the sentencing court considering evidence that would be inadmissible at trial, State v. Davis (1978), 56 Ohio St.2d 51, 10 O.O.3d 87, 381 N.E.2d 641—like hearsay—and results in the court considering evidence entirely unrelated to the conviction offense. See Gregg v. United States (1969), 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442. So, the court may consider the offender‘s prior arrests, even if none yields prosecution. Burton at 23, 6 O.O.3d 84, 368 N.E.2d 297 (“it is well-established that asentencing court may weigh such factors as arrests for other crimes“). The court may also consider facts that support a charge of which the offender is ultimately acquitted. State v. Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97, quoting United States v. Donelson (C.A.D.C.1982), 695 F.2d 583, 590 (“‘It is well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted’ “). The court may even consider mere allegations of crimes for which the offender is never prosecuted. State v. Cooey (1989), 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (allegations of uncharged criminal conduct found in a PSI report may be considered as part of the offender‘s social history). 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714(2nd Dist), ¶15.
{¶18} In the case at bar, the trial court could review the facts of the crime and the circumstances of the defendant before deciding the sentence to impose. Specifically, it was permissible for the trial court to consider the fact that there were two separate illegal narcotic sales on separate dates. In addition, the trial court could properly consider the fact that Riggleman was under the supervision of thе Licking County Municipal Court at the time he committed the felony offenses. In other words, the trial court could consider these factors in exercising its discretion in deciding whether to sentence Riggleman to prison based on the bond violation exception contained in
{¶19} We note that an “ex post facto inquiry does not focus ‘on whether a legislative change produces some ambiguous sort of ‘disadvantage [.]’ Morales, 514 U.S. at 506, 115 S.Ct. at 1602, 131 L.Ed.2d at 595, fn. 3. State v. Rush, 83 Ohio St.3d 53, 59, 697 N.E.2d 634(1998). In the case at bar, each enactment of
Conclusion
{¶20} Because the trial court‘s decision was based in part upon the bond violation exception that was contained in
{¶21} Riggleman‘s sole assignment of error is overruled.
{¶22} The judgment of the Court of Common Pleas, Licking County, Ohio is affirmed.
{¶23} I respectfully dissent from the majority opinion.
{¶24} I acknowledge the trial court could have chosen to sentence Appellant to prison on the bond violation exception contained in
{¶25} While the trial court may well have come to the same decision based solely on the bond violation exception, I find the better course in the interest of fairness would be to vacate Appellant‘s sentence and remand the matter to the trial court to redetermine sentence in accordancе with the version of