[Cite as State v. Cihon, 2023-Ohio-3108.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 22CA13
v. :
SHANE CIHON, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Christopher Pagan, Middletown, Ohio, for appellant1.
Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Assistant Gallia County Prosecuting Attorney, Gallipolis, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:8-28-23 ABELE, J.
{¶1} This is an appeal from a Gallia County Common Pleas Court
sentence imposed for a violation of community control. Shane
Cihon, defendant below and appellant herein, assigns three errors
for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S CONSECUTIVE-SENTENCES FINDINGS AT THE SENTENCING AND REVOCATION
1 Different counsel represented appellant during the trial court proceedings. 2 GALLIA, 22CA13
HEARINGS WERE ERROR.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT APPLIED A REPEALED STANDARD FOR A NONTECHNICAL COMMUNITY-CONTROL VIOLATION. UNDER THE NEW STANDARD, THE RECORD FAILS TO SUPPORT A FINDING THAT CIHON’S DISCHARGE FROM THE CBCF DEMONSTRATED HIS REFUSAL TO CONTINUE WITH THE CBCF PROGRAM, HAVING ABANDONED IT. SO THE TRIAL COURT’S IMPOSITION OF A PRISON SANCTION EXCEEDING 180-DAYS WAS CONTRARY TO LAW, AN ABUSE OF DISCRETION, AND CLEARLY-AND- CONVINCINGLY UNSUPPORTED BY THE RECORD .”
THIRD ASSIGNMENT OF ERROR:
“IT IS UNLAWFUL TO DENY APPELLATE COUNSEL A COPY OF CIHON’S PSI TO INVESTIGATE, RESEARCH, AND PRESENT ISSUES FOR APPEAL.”
{¶2} In November 2021, a Gallia County Grand Jury returned an
indictment that charged appellant with (1) grand theft of a motor
vehicle in violation of R.C. 2913.02(A)(1), a fourth-degree felony,
and (2) vandalism in violation of R.C. 2909.05(B)(1)(a), a fifth-
degree felony. Appellant pleaded not guilty to both charges.
{¶3} At the February 24, 2022 plea hearing, appellee recited
the terms of the parties’ plea agreement:
Mr. Cihon would enter pleas of guilty to Count 1 and Count 2. Count 1 is grand theft of a motor vehicle, in violation of 2913.02(A)(1), a felony of the fourth degree due to the property involved. Count 2 is vandalism in violation of 2909.05(B)(1)(A), felony of the fifth degree due to the value involved in the vandalism. In return for those two pleas of guilty the joint recommendation at the time of sentencing is for a period of community control, 36 months. 3 GALLIA, 22CA13
Also Mr. Cihon agrees to pay restitution in the amount of $4,614.50 to the victim * * *, that’s from Count 1. Also he agrees to successfully complete the STAR program as a special condition of the community control and he agrees to pay the cost in the case.
{¶4} After appellant’s counsel agreed with the plea
agreement’s terms, the trial court gave the necessary advisements
and asked appellant, “So you and the State have presented to me an
agreed recommendation for sentencing. You understand I do not have
to accept that?” Appellant replied, “Yes ma’am.” The court
informed appellant that (1) on the grand theft charge, he “could
receive prison of six, seven, eight, nine, 10, 11, 12, 13, 14, 15,
16, 17 or 18 months” and face fines of “up to $5,000,” and (2) on
the vandalism charge, he “could receive prison of six, seven,
eight, nine, 10, 11 or 12 months” and a “fines of up to $2,500,”
and (3) the maximum would be 30 months. Appellant stated that he
understood this information.
{¶5} At this point, appellant entered a guilty plea to both
counts. Appellant acknowledged on his plea form that the maximum
penalty for Count 1 is 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
or 18 months, the maximum penalty for Count 2 is 6, 7, 8, 9, 10,
11, or 12 months, and maximum fines of $5,000 and $2,500,
respectively. The agreement stated:
Prison terms for multiple charges, even if consecutive 4 GALLIA, 22CA13
sentences are not mandatory, may be imposed consecutively by the Court.
Court costs, restitution and other financial sanctions including fines, day fines, and reimbursement for the cost of any sanctions may also be imposed.
* * *
Community Control: If this Court is not required by law to impose a prison sanction, it may impose community control sanction or non-prison sanctions upon me. I understand that if I violate the terms or conditions of a community control sanction, the Court may extend the time for which I am subject to this sanction up to a maximum of 5 years, impose a more restrictive sanction, or imprison me for up to the maximum stated term allowed for the offenses as set out above.
I understand the nature of these charges and the possible defenses I might have. I am satisfied with my attorney’s advice and competence. * * * No promises have been made except as part of this plea agreement stated entirely as follows:
Joint recommendation for 36 months community control and Defendant agrees to pay restitution in the amount of 4,614.50 to the victim * * *. Defendant to successfully complete the STAR program. Defendant agrees to pay costs in all cases.
I understand that the recommendation of the Prosecuting Attorney is not binding upon the Court and that the Court, and the Court alone, determines the appropriate sentence.
{¶6} At appellant’s February 28, 2022 sentencing hearing, the
trial court stated that (1) if the court ordered the sentences to
be served consecutively, appellant faced up to 30 months in prison 5 GALLIA, 22CA13
and $7,500 in fines, and (2) in lieu of prison, the court could
impose up to a five year community control sanction. The court
also asked the state to recite the parties’ agreement, and the
state indicated the joint recommendation included: (1) 36 months
community control, (2) successful completion of the STAR CBCF
program, (3) $4,614.50 restitution to the victim, and (4) pay court
costs. Defense counsel agreed that appellee accurately recited
their agreement. The court then noted that it had reviewed the
pre-sentence investigation report (PSI) and found “three prior
prison terms served” under (D)(2), and under (D)(4) “a pattern of
substance use and refusal or inability to remain in treatment.”
The court then accepted the parties’ community control
recommendation and imposed a 36-month sentence on each count, to be
served “at one time for one 36 month period.” The court also
imposed a 180 day suspended jail sentence on each count. The court
further specified that for (1) the fifth-degree felony, the court
reserved six, seven, eight, nine, 10, 11, or 12 months, and (2) the
fourth-degree felony, the court reserved six, seven, eight, nine,
10, 11, 12, 13, 14, 15, 16, 17 or 18 months “consecutively by
agreement but I’m also finding consecutive sentences are necessary
to protect the public from future crime,” and not disproportionate.
(Emphasis added.) 6 GALLIA, 22CA13
{¶7} The trial court’s sentencing entry provides that the
court considered counsels’ oral statements, appellant’s oral
statement, the victim’s statement, the underlying agreement recited
on the record, appellant’s record, the PSI, and other relevant
information. The court further noted appellant’s “history of
criminal convictions, having served three prior prison terms, [and]
* * * exhibits a pattern of drug abuse related to the offense and a
refusal to engage in treatment.” The court concluded that the
“agreed sentence complies with the statutory mandates as to
sentencing and accepts the sentence.” Consequently, the court
sentenced appellant to serve 36 months community control for each
count, to be served concurrently with each other. The court
stated:
Defendant was informed that if Defendant violates any of the terms of community control, violates any law or leaves the state without permission of the probation officer, such violation may result in imposition of a reserved prison term on each count from the range of prison terms for the offense: six to twelve months for the underlying fifth degree felony; and six to eighteen months for the underlying fourth degree felony.
The court further ordered the sentences to “be served consecutively
to each other,” and stated that consecutive sentences “are agreed
upon by the parties.” (Emphasis added.) Specific terms of
probation included: (1) successfully complete a community-based 7 GALLIA, 22CA13
correctional facility (CBCF) program; (2) after release from the
CBCF, successfully complete transitional living; (3) intensive
supervision reporting; (4) participate in substance abuse and
mental health evaluation and treatment, including Medication
Assisted Treatment if appropriate; (5) complete moral recognition
training; (6) comply with 60 days of substance abuse monitoring
(SAM); and (7) serve 180 days of jail on each count (commitment
deferred until the court determines it necessary). The court also
advised appellant that, if he violates community control and is
sentenced to prison, after his release the APA may place him on
post-release control up to two years. The court further explained
the consequences of a post-release control violation.
{¶8} On June 7, 2022, appellee moved to revoke appellant’s
community control because of appellant’s involvement in a verbal
and physical altercation with a CBCF resident, “a major rule
violation of physical aggression and STAR determined that defendant
was not amenable to treatment at this time. The defendant was
unsuccessfully discharged from STAR Community Justice Center on
June 6, 2022.”
{¶9} At the June 9, 2022 hearing, appellant waived the reading
of his alleged community control violation, the notice period, and
his rights and penalties. Appellant also denied the alleged 8 GALLIA, 22CA13
violation. At the July 25, 2022 hearing, the trial court observed
that the state claimed that appellant had been “unsuccessfully
discharged from STAR [the CBCF].” The court reminded appellant of
his sentence and indicated “if I choose to impose maximum prison
consecutively, one after another, you’re facing 30 months” and, in
the alternative, “we could extend the period of your community
control up to the full five years, impose more restrictive
sanctions including local jail time, lockdown in-patient rehab or
another residential sanctions uh, including the CBCF.” Appellant
indicated to the court that he understood the potential sanctions,
and further indicated he understood the post-release control term
and consequences for a violation. After appellant admitted to the
community control violations, the court’s entry states:
The Defendant previously entered a guilty plea to Count One, “Grand Theft (MV),” a violation of Section 2913.02(A)/(1)(B)(5) of the Ohio Revised Code, a felony of the fourth degree; and Count Two, “Vandalism,” a violation of Section 2909.05(B)(1)(a) of the Ohio Revised Code, a felony of the fifth degree.
The Court further finds that the Defendant was placed on community control for a period of thirty-six (36) months on each count on February 28, 2022. Defendant was specifically notified that a violation of community control would result in imprisonment for six to eighteen (6-18) months on Count One; and six to twelve (6-12) months on Count Two.
The Court further finds that the Defendant has violated 9 GALLIA, 22CA13
the terms of the community control sanction order by 1) failed to successfully complete CBCF program.
The Defendant was specifically advised that although the Court accepted the guilty plea, the Court is not under any obligation to accept the plea agreement as to penalty and same is reserved pending the pre-sentence investigation report.
{¶10} At the August 15, 2022, sentencing hearing, the trial
court further determined that appellant’s CBCF discharge was
“nontechnical.” After the court noted appellant’s history of
criminal convictions, less than favorable response to previous
sanctions, pattern of drug abuse, and refusal to engage in
treatment, the court revoked appellant’s community control sentence
and ordered him to serve an 18-month prison term on Count 1 and a
12-month prison term on Count 2, to be served consecutively for a
term of 30 months. This appeal followed.
I.
{¶11} In his first assignment of error, appellant asserts that
the trial court’s consecutive sentence findings at his sentencing
and revocation hearings constitute reversible error.2 In
2 A trial court may make consecutive-sentencing findings using a preponderance of the evidence standard, a more likely than not standard. However, pursuant to R.C. 2953.08(G)(2), an appellate 10 GALLIA, 22CA13
particular, appellant argues that the parties’ plea agreement is
silent about consecutive sentences and the court’s alternative
holding, made at the sentencing hearing, that consecutive sentences
were necessary for any future violation, conflicts with its
simultaneous holding that appellant would be amenable to community
control.
{¶12} Appellant contends that the trial court should not make
consecutive-sentencing findings at a sentencing hearing when the
court ultimately imposed a community control sanction. In support,
appellant cites State v. Howard, 162 Ohio St.3d 314, 2020-Ohio-314,
165 N.E.3d 1088, ¶ 23-28 for the proposition that a defendant is
not required to challenge on direct appeal the lack of consecutive-
sentencing findings and that a trial court must make consecutive-
sentencing findings when it revokes community control. Id. at ¶
25.
{¶13} This court has previously held that “a trial court is not
court may reverse or modify a trial court's consecutive sentence if it clearly and convincingly finds that the record does not support the findings. State v. Gwynne, __ Ohio St.3d. , 2022-Ohio-4607. The supreme court instructed that the first core requirement is there be some evidentiary support in the record for the consecutive-sentence findings that the trial court made. The second requirement is that “whatever evidentiary basis there is, that it be adequate to fully support the trial court's consecutive- sentence findings.” We include more detailed discussion of Gwynne in Section IV of this opinion. 11 GALLIA, 22CA13
prohibited, per se, from sentencing an offender to concurrent terms
of community control but consecutive prison terms as a possible
punishment for violating those community control sanctions.”
State v. Marcum, 4th Dist. Hocking No. 19CA7, 2020-Ohio-3962, ¶ 10,
citing State v. Dusek, 4th Dist. Hocking No. 18CA18, 2019-Ohio-
3477, ¶ 4. Moreover, the Supreme Court of Ohio held in State v.
Jones, __ Ohio St.3d __, 2022-Ohio-4485, __ N.E.3d __, that “when a
court revokes community control, it may require that the reserved
prison term be served consecutively to any other sentence then
existing or then being imposed but only if at the time it imposed
community control, it notified the offender that a consecutive
sentence on revocation of community control was a possibility.”
Id. at ¶ 2.
{¶14} In the case sub judice, at appellant’s original
sentencing the trial court considered the R.C. 2929.11 principles
and purposes of sentencing and the R.C. 2929.12 seriousness and
recidivism factors and sentenced appellant to serve two 36-month
terms of community control, to be served concurrently with each
other. The court further informed appellant that, if he violated
community control, violated any law, or left the state without
permission, such violation “may result in imposition of a reserved
prison term on each from the range of prison terms for the offense: 12 GALLIA, 22CA13
six to twelve months for the underlying fifth degree felony; and
six to eighteen months for the underlying fourth degree felony.
Ohio Revised Code Section 2929.19(B)(4). The sentence in this case
shall be served consecutively to each other.” The court made the
required consecutive sentencing findings under R.C. 2929.14(C) and
found:
Consecutive sentences are agreed upon by the parties and are necessary to protect the public from future crime and to punish the offender. Consecutive sentences are not disproportionate to the seriousness of the offender’s conduct nor are they disproportionate to the danger the offender poses to the public. Further the Defendant’s history of criminal conduct demonstrates the necessity of consecutive sentences to protect the public from future crime. Ohio Revised Code Section 2929.14(C).
{¶15} Thus, at the original sentencing hearing the trial court
made the consecutive-sentencing findings before it imposed two
concurrent community control terms. At the revocation hearing, the
trial court considered appellant’s physical altercation at the
CBCF, reviewed the R.C. 2929.11 and 2929.12 principles and factors,
and again made the consecutive-sentence findings. Thus, we find no
abuse of discretion in the trial court’s decision to revoke
appellant’s community control. The record also clearly and
convincingly supports the trial court’s consecutive sentencing
findings. 13 GALLIA, 22CA13
{¶16} Appellant also contends that his plea agreement is
contractual. However, sentencing recommendations do not bind a
trial court. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1,
922 N.E.2d 923, ¶ 28 (court may reject a plea agreement and not
bound by jointly-recommended sentence). Although the trial court
may have misspoken in stating that the consecutive sentence is an
agreed sentence, the court did, in fact, make the required findings
to impose consecutive sentences at both the original sentencing
hearing and again at the revocation hearing. While appellant
argues that prison should be discouraged for fourth and fifth-
degree felony offenders and that appellant had “showed commitment
and rehabilitation,” we agree with the trial court’s conclusion
that appellant’s violent acts and unsuccessful discharge from the
CBCF program violated the terms of his community control.
{¶17} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶18} In his second assignment of error, appellant asserts that
the trial court applied an outdated standard to determine what
constitutes a “technical” or “nontechnical” community control
violation. Appellant contends that under the new statutory 14 GALLIA, 22CA13
standard, the record in the case sub judice fails to support a
finding that appellant’s discharge from the CBCF demonstrated his
refusal to continue with the CBCF program. Therefore, appellant
argues that the trial court’s imposition of a prison sanction that
exceeds 180 days is contrary to law, constitutes an abuse of
discretion, and the record does not clearly and convincingly
support the sanction.
{¶19} Generally, appellate courts review trial court decisions
to revoke community control sanctions under the abuse of discretion
standard of review. State v. Crose, 3d Dist. Crawford No. 3-22-34,
2023-Ohio-880, ¶ 8; State v. Mehl, 4th Dist. Athens No. 20CA14,
2022-Ohio-1154, ¶ 7. An abuse of discretion suggests that a
decision is unreasonable, arbitrary, or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).
{¶20} Mehl acknowledged this court’s two-part standard in
community control revocation cases. First, we review the record to
determine “whether there is substantial evidence to support the
court’s finding that [the offender] violated the terms of * * *
community control.” Mehl at ¶ 7, citing In the Matter of C.M.C.,
4th Dist. Washington No. 09CA15, 2009-Ohio-4223, ¶ 17. If
substantial evidence exists, “we review the court’s ultimate [Cite as State v. Cihon, 2023-Ohio-3108.]
decision to revoke * * * under the more deferential abuse of
discretion standard.” Id.
[A] trial court’s decision to revoke community control is reviewed for an abuse of discretion, and in making its determination, a trial court can take into consideration the nature of the community control violation at issue, the manner in which the condition was violated, as well as any other relevant circumstances in the case. Further, trial courts are granted much greater latitude and discretion in their decision making when the violation is one of substance rather than form. Additionally, when a trial court determines that community control should be revoked and a prison term should be imposed, a trial court must consider both the seriousness of the original offense leading to the imposition of community control as well as the gravity of the community control violation. Finally, in imposing a prison sentence for a violation of community control, trial courts should consider the principles and purposes of felony sentences, should balance the seriousness and recidivism factors found in R.C. 2929.11 and R.C. 2929.12, and then should impose a prison term within the statutory range for the underlying offense, which the defendant was advised during his or her initial sentencing hearing.
Mehl at ¶ 18.
{¶21} Previously, the Supreme Court of Ohio defined
“nontechnical community-control violation” in State v. Nelson, 162
Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, ¶ 26. The court
observed that the term “technical violation” is not defined in the
statute, and distinguished between whether a rule is “specifically
tailored to address” the defendant’s misconduct, or whether a rule
is a “mere administrative requirement facilitating community
control supervision.” Id. at ¶ 33. In particular, the court held [Cite as State v. Cihon, 2023-Ohio-3108.]
that a violation of a community-control sanction is nontechnical
if, considering the totality of the circumstances, the violation
concerns a condition of community control “specifically tailored to
address” matters related to the defendant’s misconduct or if it can
be deemed a “substantive rehabilitative requirement which addressed
a significant factor contributing to” the defendant’s misconduct.
Id. at ¶ 26, citing State v. Davis, 12th Dist. Warren No. CA2017-
11-156, 2018-Ohio-2672, ¶ 17-18. On the other hand, a violation is
“technical” when the condition violated equates to “an
administrative requirement facilitating community control
supervision.” Nelson at ¶ 26, citing Davis at ¶ 18.
{¶22} As appellant points out, after Nelson on April 12, 2021
the General Assembly amended R.C. 2929.15 to define the term
“technical violation.” R.C. 2929.15(E) provides:
(E) As used in this section, “technical violation” means a violation of the conditions of a community control sanction imposed for a felony of the fifth degree, or for a felony of the fourth degree that is not an offense of violence and is not a sexually oriented offense, and to which neither of the following applies:
(1) The violation consists of a new criminal offense that is a felony or that is a misdemeanor other than a minor misdemeanor, and the violation is committed while under the community control sanction.
(2) The violation consists of or includes the offender’s articulated or demonstrated refusal to participate in the community control sanction imposed on the offender or any of its conditions, and the refusal demonstrates to the court that the offender has abandoned the objects of the [Cite as State v. Cihon, 2023-Ohio-3108.]
community control sanction or condition.
(Emphasis added).
{¶23} In the case at bar, the CBCF discharged appellant due to
his physical altercation with a fellow resident, an offense of
violence, that during the revocation hearing he admitted to having
committed. The trial court asked, “So you understand what the
State says you’ve done to violate them?” Appellant replied, “Yes,
ma’am.” When asked if he agreed that the state would be able to
prove a violation, appellant replied, “Yes ma’am.” At sentencing,
the court stated: “Mr. Cihon admitted to and was found in violation
of the terms of community control * * * as set forth in the filing
of June 7. Unsuccessful discharge at STAR because of harming
another * * * resident.”
{¶24} Thus, regardless of whether the R.C. 2929.15 amendments
supersede the Nelson standard, we believe that appellant’s
community control violation constitutes a violent act that
constitutes an act of violence, and does not fall under the
definition of “technical violation.”
Consequently, under both the Nelson standard and amended R.C.
2929.15(E), appellant’s violent act that led to his discharge from
the CBCF constitutes a non-technical violation.
{¶25} Accordingly, we overrule appellant’s second assignment of [Cite as State v. Cihon, 2023-Ohio-3108.]
error.
III.
{¶26} In his final assignment of error, appellant asserts that
denying appellate counsel a copy of appellant’s pre-sentence
investigation (PSI) report is unlawful. In particular, appellant
contends that counsel’s lack of access and ability to retain a copy
of appellant’s PSI hampers counsel’s ability to investigate,
research, and present issues for appeal, and instead is required to
travel to view the PSI and make notes.
{¶27} Crim.R. 32.2 and R.C. 2951.03 address presentence
investigation reports. Crim.R. 32.2 provides:
Unless the defendant and the prosecutor in the case agree to waive the presentence investigation report, the court shall, in felony cases, order a presentence investigation and report before imposing community control sanctions or granting probation. The court may order a presentence investigation report notwithstanding the agreement to waive the report. In misdemeanor cases the court may order a presentence investigation before granting probation.
R.C. 2951.03(A)(1) provides, “No person who has been convicted of
or pleaded guilty to a felony shall be placed under a community
control sanction until a written presentence investigation report
has been considered by the court.” The report must address the
circumstances of the offense; the criminal record, social history,
and present condition of the defendant; and, possibly, the victims’ [Cite as State v. Cihon, 2023-Ohio-3108.]
statements regarding the offense’s impact. Id.; State v. Johnson,
138 Ohio St.3d 282, 2014-Ohio-770, 6 N.E.3d 38, ¶ 8.
{¶28} R.C. 2951.03 permits access to the PSI report in certain
circumstances. R.C. 2951.03(B)(1) instructs that “the court, at a
reasonable time before imposing sentence, shall permit the
defendant or the defendant’s counsel to read the report,” with some
exceptions. Further, as per R.C. 2951.03(B)(2), “[p]rior to
sentencing, the court shall permit the defendant and the
defendant’s counsel to comment on the presentence investigation
report and, in its discretion, may permit the defendant and the
defendant’s counsel to introduce testimony or other information
that relates to any alleged factual inaccuracy contained in the
report.” In addition, R.C. 2951.03(D)(1) provides when a defendant
and counsel may seek access to the presentence investigation
report, which is otherwise “confidential information” and “not a
public record:”
The court, an appellate court, * * * the defendant, the defendant’s counsel, the prosecutor who is handling the prosecution of the case against the defendant, * * * may inspect, receive copies of, retain copies of, and use a presentence investigation report * * * only for the purposes of or only as authorized by Criminal Rule 32.2 or this section, division (F)(1) of section 2953.08, section 2947.06, or another section of the Revised Code.
{¶29} Relevant to the case at bar, pursuant to R.C. [Cite as State v. Cihon, 2023-Ohio-3108.]
2951.03(D)(2) the defendant, his counsel, and the prosecutor may
not make copies of the report. Instead, they must return all
copies of the report to the court “[i]mmediately following the
imposition of sentence upon the defendant,” and per R.C.
2951.03(D)(3), the “court or other authorized holder of the report
* * * shall retain the report * * * under seal,” except when it is
being used for specified purposes. R.C. 2951.03(D)(2) and (3);
Johnson at ¶ 11.
{¶30} In Johnson, the Supreme Court of Ohio held that newly
appointed appellate counsel may access a presentence investigation
report upon a proper showing, subject to similar restrictions as in
R.C. 2951.03 and 2953.08(F)(1), and any further directives of the
appellate court. Id. at ¶ 14. Thus, appellate counsel is
permitted access for appellant’s first appeal as of right. See
also State v. Vasquez, 9th Dist. Summit No. 29858, 2021-Ohio-3453
(access to PSI denied when defendant sought PSI for use in future
petition for post-conviction relief, noting due process
implications of Johnson not present). Moreover, R.C. 2951.03(D)(2)
provides that, unless a presentence investigation report is being
used for one of the permissible purposes listed in division (D)(1)
of the statute, the report must be kept under seal.
{¶31} While we understand that this procedure appellant [Cite as State v. Cihon, 2023-Ohio-3108.]
outlines could indeed create a hardship for appellant’s counsel, as
an intermediate appellate court we may not depart from Supreme
Court of Ohio directives and statutory requirements. Therefore, we
overrule appellant’s third assignment of error.
IV.
{¶32} Additionally, in his reply brief appellant cites the
recent Supreme Court of Ohio decision, issued after appellant
submitted his merit brief, that expanded appellate review and
sentencing determinations of consecutive sentences. In State v.
Gwynne, __ Ohio St.3d. __, 2022-Ohio-4607, the court created a de
novo review process for appellate courts at ¶ 2:
We hold that based on the language of R.C. 2929.14(C) (4), the consecutive-sentence findings are not simply threshold findings that, once made, permit any amount of consecutively stacked individual sentences. Rather, these findings must be made in consideration of the aggregate term to be imposed. Additionally, we hold that appellate review of consecutive sentences under R.C. 2953.08(G)(2) does not require appellate courts to defer to the sentencing court’s findings in any manner. Instead, the plain language of the statute requires appellate courts to review the record de novo and decide whether the record clearly and convincingly does not support the consecutive-sentence findings.
Thus, appellate courts are now apparently tasked to consider,
independently of a trial court’s determination, whether the record [Cite as State v. Cihon, 2023-Ohio-3108.]
clearly and convincingly supports the imposition of an aggregate
sentence that is necessary, proportionate and arises from
sufficiently aggravated circumstances to overcome the statutory
presumption for the imposition of concurrent sentences. R.C.
2929.41(A) and R.C. 2929.14(C)(4).
{¶33} In the case sub judice, after our review we believe that
the record supports the trial court’s necessity and proportionality
findings and, after our de novo review, we believe the record
clearly and convincingly supports the consecutive sentence
findings. Here, appellant’s history of criminal convictions,
pattern of drug abuse, apparent unwillingness or inability to
engage in, and comply with, drug treatment programs and refrain
from committing a major rule violation (act of violence) at a
treatment facility demonstrates that the 30-month aggregate
consecutive sentence is warranted.
{¶34} Accordingly, based upon the foregoing reasons, we affirm
the trial court’s judgment.
JUDGMENT AFFIRMED. GALLIA, 22CA13
23 JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:___________________________ Peter B. Abele, 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.