State v. Betz

2020 Ohio 5226

• Court: Ohio Court of Appeals
• Decided: November 9, 2020
• Docket: CA2019-08-137
• Status: Published

Opinion

[Cite as State v. Betz, 2020-Ohio-5226.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2019-08-137

: OPINION - vs - 11/9/2020 :

GENE CHARLES BETZ, JR., :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR15-05-0765

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Engel & Martin, LLC, Jim L. Hardin, 4660 Duke Drive, Suite 101, Mason, Ohio, 45040, for appellant

RINGLAND, J.

{¶1} Appellant, Gene Betz, appeals the sentence imposed by the Butler County

Court of Common Pleas following the revocation of his community control. For the reasons

detailed below, we affirm.

{¶2} Betz pled guilty to one count of aggravated trafficking in drugs in violation of

R.C. 2925.03(A)(1), a fourth-degree felony. In its January 14, 2016 judgment entry of Butler CA2019-08-137

conviction, the trial court sentenced Betz to five years of community control and advised

him that "[v]iolation of any of this sentence shall lead to a more restrictive sanction, a longer

sanction, or a prison term of 18 months."

{¶3} On May 12, 2017, the Butler County Adult Probation Department filed a report

and notice of violation. In the notice, the Probation Department alleged that Betz had

violated Rule 5 of the conditions of his community control by failing to report and that

attempts to locate him had failed. The notice indicated that Betz's last face-to-face contact

with the department was on January 23, 2017.

{¶4} On May 18, 2017, the Probation Department filed another report and notice

of violation that Betz had also violated Rule 7 when he admitted to using heroin. The

Probation Department also alleged that Betz had violated Rule 12 by failing to make

payments toward his ordered financial obligation.

{¶5} Following a hearing, the trial court found that Betz had violated the terms of

his community control. The trial court continued Betz's community control and ordered him

to successfully complete inpatient treatment.

{¶6} On March 27, 2019, the Probation Department filed another report, alleging

that Betz had again violated Rule 5 for failing to report to his probation officer. The next

day, the Probation Department filed again, alleging that Betz had violated: (1) Rule 1

because he had been charged with two misdemeanors, (2) Rule 5 for failing to report, (3)

Rule 7 for testing positive for amphetamines and methamphetamines, and (4) Rule 12 for

failing to make payments towards his court-ordered financial obligations.

{¶7} The trial court held another community control revocation hearing where Betz

admitted to the violations. During the hearing, Betz's attorney informed the trial court that

Betz had been assessed and accepted for drug treatment and requested that his client be

given another chance to maintain sobriety. The trial court stated that it had no knowledge

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of the assessment, had not received any indication of a screening result, and that no

information of this kind was contained in the probation violation report. Betz interrupted by

explaining that he had been "great" in prior treatment and blamed his relapse on the deaths

of his girlfriend and his mother and wanted another chance for treatment. At some point,

an unidentified speaker told the trial court that a message from a probation officer had been

received that indicated a bed was available for Betz at a treatment facility. The trial court

then noted that the probation officer did not recommend treatment in the report. The

unidentified speaker then stated that her recommendation "stays the same."

{¶8} The trial court then addressed Betz and stated that its biggest concern was

his repeated failure to report to the probation department. The trial court noted that

reporting to the probation department is the first requirement of community control and,

although it could be forgiving about "a lot of things," it could not overlook that Betz continued

to fail to report. In revoking community control, the trial court stated:

The Court's had an opportunity to consider this matter in conjunction with the purposes and principles of sentencing set forth in the Ohio Revised Code Section 2929.11 and the seriousness and recidivism factors set forth in Ohio Revised Code Section 2929.12.

Having considered all of the foregoing, the Court finds at this time that [Betz] is not amenable to available community control sanctions - - or is no longer amenable to available community control sanctions. His Rule 7 violation is more than a mere technical violation. It's actually a new felony, both serious drugs, amphetamine and methamphetamines. And the T-CAP's not applicable in this case.

[Betz] is prison eligible, and his sentence is such that the Court is going to send him to prison here today. We're going to order that his community control in this case be revoked. We're going to reimpose the original sentence of 18 months in the Ohio Department of Rehabilitation and Corrections. Against that sentence, I would give him 165 days credit as of today.

{¶9} Betz now appeals from the trial court's decision revoking community control

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and sentencing him to 18 months in prison, raising two assignments of error for review.

{¶10} Assignment of Error No. 1:

{¶11} THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE OF

18 MONTHS ON APPELLANT FOR A COMMUNITY CONTROL SANCTION VIOLATION

BY FAILING TO PROPERLY CONSIDER R.C. 2929.11 AND R.C. 2929.12.

{¶12} In his first assignment of error, Betz argues the record does not support the

trial court's imposition of an 18-month prison term. Betz argues that if the trial court had

considered the factors set forth in R.C. 2929.11 and R.C. 2929.12, it would not have sent

him to prison. Betz's argument is without merit.

{¶13} When an offender violates the conditions of his community control, "R.C.

2929.15(B) provides the trial court [with] a great deal of latitude in sentencing the offender."

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 20. Pursuant to R.C. 2929.15(B),

a trial court has the option of imposing "a longer period of community control, a more

restrictive community-control sanction, or a prison term of any length within the range of

that available for the original offense, up to the maximum that the trial court specified at the

first sentencing hearing." State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, ¶ 13.

{¶14} In the present case, the trial court elected to impose a prison term of 18

months on Betz for his violation of community control. "We review the trial court's

sentencing decision for a community control violation under the standard of review set forth

by R.C. 2953.08(G)(2)." State v. Roberts, 12th Dist. Butler No. CA2019-02-025, 2019-Ohio-

4205, ¶ 5. Pursuant to that statute, this court may modify or vacate a sentence only if, by

clear and convincing evidence, "the record does not support the trial court's findings under

relevant statutes or that the sentence is otherwise contrary to law." State v. Harp, 12th Dist.

Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7.

{¶15} A sentence is not clearly and convincingly contrary to law where the trial court

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considers the purposes and principles of sentencing as set forth in R.C. 2929.11, as well

as the purposes and principles and seriousness and recidivism factors listed in R.C.

2929.12 and sentences a defendant within the permissible statutory range. State v.

Brandenburg, 12th Dist. Butler Nos. CA2014-10-201 and CA2014-10-202, 2016-Ohio-

4918, ¶ 9. Thus, this court may "increase, reduce, or otherwise modify a sentence only

when it clearly and convincingly finds that the sentence is (1) contrary to law or (2)

unsupported by the record." Id. at ¶ 1, citing State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, ¶ 7.

{¶16} In State v. Motz, 12th Dist. Warren No. CA2019-10-109, 2020-Ohio-4356, we

held that when imposing a sentence for an offender's violation of community control, the

trial court shall consider the R.C. 2929.11 purposes and principles of felony sentencing as

well as the relevant seriousness and recidivism factors set forth in R.C. 2929.12 in imposing

a sentence. Id.

{¶17} Following review, we find no error in the trial court's decision to sentence Betz

to 18 months in prison for his community control violation. Betz's sentence is not clearly

and convincingly contrary to law as the sentence falls within the permissible statutory range

for a fourth-degree felony in accordance with R.C. 2929.14(A)(4) and the sentence did not

exceed the maximum prison term that was specified by the trial court at appellant's initial

sentencing hearing. See Jackson, 2016-Ohio-8127 at ¶ 13. Furthermore, contrary to Betz's

assertions, the record reflects that the trial court considered the principles and purposes of

sentencing and recidivism factors when it revoked Betz's community control and imposed

an 18-month prison term, even specifically citing R.C. 2929.11 and 2929.12 during Betz's

sentencing hearing. When imposing Betz's sentence, the trial court stated that its biggest

concern was that Betz demonstrated a history of failing to report to the probation department

and accumulating probation violations. As a result, the trial court found that Betz was no

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longer amenable to available community control sanctions. In addition, since Betz violated

Rule 7 by abusing drugs, the trial court found that he had not committed a technical

violation. Merely because the trial court did not continue community control or impose the

sentence that Betz may have preferred, does not mean that the trial court did not consider

both the purposes and principles and the seriousness and recidivism factors of R.C.

2929.11 and R.C. 2929.12. Betz's first assignment of error is overruled.

{¶18} Assignment of Error No. 2:

{¶19} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

{¶20} In his second assignment of error, Betz argues he was denied effective

assistance of counsel. We disagree.

{¶21} To establish a claim of ineffective assistance of counsel, the appellant must

show that counsel's actions were outside the wide range of professionally competent

assistance and that he was prejudiced as a result of counsel's actions. State v. Patrick,

12th Dist. Butler No. CA2015-05-090, 2016-Ohio-995, ¶ 13, citing Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Trial counsel's performance will not be deemed

deficient unless it "fell below an objective standard of reasonableness." Strickland at 688.

To show prejudice, the appellant must prove there exists "a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been different."

Id. at 694. An appellant's failure to satisfy one prong of the Strickland test negates a court's

need to consider the other. State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and

CA2013-07-113, 2014-Ohio-3449, ¶ 54.

{¶22} Betz's argument stems from the portion of his attorney's argument to the trial

court where he stated that Betz had been accepted at a treatment facility. When the trial

court stated that it did not have any information regarding the treatment facility, an

unidentified speaker informed the court that an officer with the probation department

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determined that a bed was available at the treatment facility, but that the "recommendation

stays the same." As a result, Betz alleges his trial counsel was ineffective because he failed

to object during the sentencing hearing or request a continuance so that he could subpoena

Betz's probation officer to inquire about the treatment program or any mitigating

circumstances for his relapse.

{¶23} Following review, we find Betz did not receive ineffective assistance of

counsel. The record reflects that even if Betz had been accepted into a drug treatment

program, it would not have changed the probation department's recommendation of prison,

nor would that have had a reasonable probability of impacting the trial court's sentencing

decision. As noted by the trial court, Betz had been given numerous chances to comply

with the terms of his community control but continued to violate. The trial court stated that

its biggest concern was that Betz failed to report to his probation officer and that based on

the probation violation report, it was "not going to be considering" Betz's request for

continued community control with treatment. Rather, as noted in resolution of Betz's first

assignment of error, the trial court considered the relevant factors and imposed a prison

sentence. Thus, even if we were to find error, which we do not, Betz has failed to show the

existence of a reasonable probability that the outcome of his revocation hearing would have

been different. Betz's second assignment of error is overruled.

{¶24} Judgment affirmed.

M. POWELL, P.J., and PIPER, J., concur.

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