State v. Bonnette

2023 Ohio 4430

• Court: Ohio Court of Appeals
• Decided: December 6, 2023
• Docket: 23CA000009
• Status: Published

Opinion

[Cite as State v. Bonnette, 2023-Ohio-4430.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : KATHERINE BONNETTE, : Case No. 23CA000009 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 23CR02-0042

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 6, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES T. MCCONVILLE TODD W. BARSTOW Knox County Prosecutor 261 W. Johnstown Road, Suite 204 117 East High Street., Suite 234 Columbus, Ohio 43230 Mount Vernon, Ohio 43050 Knox County, Case No. 23CA000009 2

Baldwin, J.

{¶1} Katherine Bonnette appeals the sentence imposed by the Knox County

Court of Common Pleas. Bonnette plead guilty to Aggravated Possession of Drugs, 93.8

grams of Methamphetamine, in violation of R.C. 2925.11(A) and a second degree felony.

The trial court imposed a prison term of six to nine years. The State of Ohio is Appellee.

STATEMENT OF THE FACTS AND THE CASE

{¶2} Bonnette entered a guilty plea in this matter, so the facts were not fully

developed in the record. The State did offer a summary of the relevant facts:

* *on February 1 of this year Mount Vernon police officers initiated a traffic

stop for an equipment violation on a vehicle that Ms. Bonnette was a

passenger in. The driver was found to have active warrants. He was placed

under arrest and drug paraphernalia was found on his person. A canine unit

responded. The canine alerted to the vehicle and a search of the vehicle in

a purse on the back seat was located approximately ninety-four grams of

methamphetamine.

(Change of Plea Hearing, May 3, 2023, p.11, lines 9-20).

{¶3} Bonnette agreed with the facts and conceded that the purse containing the

methamphetamine was hers.

{¶4} The State and Bonnette submitted a jointly recommended sentence of three

to four and one-half years. The trial court explained that the maximum sentence for

Bonnette’s crime was eight to twelve years with a potential fine of $25,000.00 and a

mandatory fine of $7,500.00. (Change of Plea Hearing, May 3, 2023, p. 7, line 17 to p. 8,

line 13). Bonnette acknowledged that she understood the court was not bound by the Knox County, Case No. 23CA000009 3

recommendation and that the trial court would determine her sentence. The trial court

concluded the plea hearing by ordering a presentence investigation.

{¶5} The parties returned to the court for sentencing on June 1, 2023. The trial

court acknowledged that Bonnette had appeared and entered a plea of guilty which was

accepted on May 3, 2023 and that her offense, Aggravated Possession of Drugs, was a

felony of the second degree subject to a mandatory sentence. The trial court noted that it

had reviewed the presentence investigation and the parties confirmed their

recommendation of a sentence of three to four and one-half years.

{¶6} The trial court noted that it had considered the purposes and principles of

sentencing contained in R.C. 2929.11 as well as the factors contained within R.C.

2929.12 and concluded that a prison term is consistent with R.C. 2929.11. The trial court

imposed a sentence of 6 to 9 years and a mandatory fine of $7500.00. The fine was

vacated based upon the trial court’s finding Bonnette was indigent.

{¶7} Bonnette filed a timely notice of appeal and submitted one assignment of

error:

{¶8} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

SENTENCING HER IN CONTRAVENTION OF OHIO'S SENTENCING STATUTES.”

STANDARD OF REVIEW

{¶9} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to

review the entire trial court record, including any oral or written statements and

presentence investigation reports. Revised Code 2953.08(G)(2) provides we may either

increase, reduce, modify, or vacate a sentence and remand for resentencing where we

clearly and convincingly find that either the record does not support the sentencing court's Knox County, Case No. 23CA000009 4

findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the

sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.2d 659, ¶ 28.

{¶10} "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, 120 N.E.2d 118 (1954), paragraph three

of the syllabus.

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

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-

015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-

03-026, 2019-Ohio-4209, ¶ 36.

{¶12} The trial court must consider the purposes and factors contained in R.C.

2929.11 and 2929.12 but this Court has held that when the transcript of “the sentencing

hearing is silent as to whether the trial court considered the factors in R.C. 2929.11 and

2929.12” a presumption arises “that a trial court considered the factors contained in R.C.

2929.12.” State v. Hannah, 5th Dist. Richland No. 15-CA-1, 2015-Ohio-4438, ¶ 13.

Accord State v. Tenney, 11th Dist. Ashtabula No. 2009-A-0015, 2010-Ohio-6248, 2010

WL 5289110, ¶ 14 and State v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-

Ohio-3125, ¶ 18. Knox County, Case No. 23CA000009 5

ANALYSIS

{¶13} This court may modify Bonnette’s sentence only if it “clearly and

convincingly finds that either the record does not support the sentencing court's findings

under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence

is otherwise contrary to law.” Bonnette does not argue that R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I) apply, so we are restricted to consideration of

whether the sentence is clearly and convincingly otherwise contrary to law.

{¶14} The sentence imposed by the trial court is within the statutory guidelines

and Bonnette does not assert a position to the contrary. Instead, she contends that the

trial court imposed a maximum sentence that fails to comply with the guidelines of R.C.

2929.11 or 2929.12 and that we should reverse the sentence on that basis. Bonnette is

requesting that we act in a manner that has been prohibited by the Supreme Court of

Ohio in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 where the

court clearly stated that R.C. 2953.08(G)(2) does not permit “an appellate court to modify

or vacate a sentence based on its view that the sentence is not supported by the record

under R.C. 2929.11 and 2929.12.” Bonnette acknowledges that Jones is controlling and

asks that we disregard it and instead follow the dissent authored by Justice Donnelly, but

we “are bound to follow the law and decisions of the Ohio Supreme Court, unless or until

they are reversed or overruled. State v. Lenior, 5th Dist. Delaware No. 10CAA010011,

2010-Ohio-4910, 2010 WL 3921188; Phillips v. Phillips, 5th Dist., 2014-Ohio-5439, 25

N.E.3d 371.” Wendt v. Dickerson, 5th Dist. No. 2017 AP 08 0024, 2018-Ohio-1034, 108

N.E.3d 1174, ¶ 30. We are therefore obligated to adhere to the decision in Jones and to

reject Bonnette’s request. Knox County, Case No. 23CA000009 6

{¶15} Bonnette’s assignment of error is denied.

{¶16} The decision of the Knox County Court of Appeals is affirmed.

By: Baldwin, J.

Wise, John, P.J. and

Delaney, J. concur.