State v. Clark

2021 Ohio 1427

Opinion

[Cite as State v. Clark, 2021-Ohio-1427.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-19 : v. : Trial Court Case Nos. 2020-CR-13 & : 2020-CR-54 CAROLYN ELAINE MARIE CLARK : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

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OPINION

Rendered on the 23rd day of April, 2021.

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor’s Office, Appellate Division, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, 210 West Main Street, Troy, Ohio 45373 Attorney for Defendant-Appellant

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HALL, J. -2-

{¶ 1} Carolyn Elaine Marie Clark appeals from her convictions for two drug-related

offenses, challenging her sentences. We conclude that the record supported the trial

court’s sentencing findings and that the sentences were not otherwise contrary to law.

We affirm.

I. Factual and Procedural Background

{¶ 2} On January 7, 2020, Clark was a passenger in a vehicle driven by Denvil

Rose through Mechanicsburg, Ohio. A patrol officer observed Rose fail to stop at a

marked stop bar. The officer initiated a traffic stop, but Rose did not stop, leading police

on a high-speed chase. Rose eventually stopped near an open field, jumped out, and fled

into the field on foot. When officers eventually caught him, they discovered syringes in his

pockets.

{¶ 3} Meanwhile, Clark remained in the vehicle and was taken into custody.

Officers discovered drug paraphernalia in a purse located on the passenger side of the

vehicle. Clark admitted that she used methamphetamine, and officers discovered a small

quantity of methamphetamine in a baggie in her purse. Clark was charged with one count

of aggravated possession of drugs and released on bond.1

{¶ 4} In violation of one of her bond conditions, Clark had multiple telephone

conversations with Rose, who was being held in jail, about Clark’s retrieving something

that Rose had buried in the field while he was fleeing. The conversations were recorded,

and police quickly figured out that what Rose had buried was drugs. A canine search of

the field in late January 2020, in the area where Rose had fled, led to the discovery of a

bag containing 83.9 grams of methamphetamine. Clark was charged in a second case

1 Champaign C.P. No. 2020-CR-13. -3-

with one count of attempted aggravated possession of drugs, one count of attempted

aggravated trafficking in drugs, and one count of tampering with evidence.2

{¶ 5} Clark pleaded guilty to the charge in the first case, aggravated possession of

drugs in violation of R.C. 2925.11(A), a fifth-degree felony. In the second case, she

pleaded guilty to attempted aggravated possession of drugs in violation of R.C.

2929.11(A), a third-degree felony, and the other two counts were dismissed. The trial

court sentenced Clark to eight months in prison for the offense in the first case and 36

months in prison, the maximum, for the offense in the second case, and it ordered that

the sentences be served consecutively. The court also ordered Clark to pay a fine, court

costs, and the cost of her court-appointed-counsel’s legal fees and expenses.

{¶ 6} Clark appeals.

II. Analysis

{¶ 7} Clark raises four assignments of error. The first assignment of error

challenges the order to pay her court-appointed-counsel’s fees and expenses. The

remaining three assignments of error challenge her prison sentence.

A. Court-appointed-counsel fees

{¶ 8} The first assignment of error alleges:

The trial court erred as a matter of law in imposing appointed counsel fees

on Appellant without making an express finding at the sentencing hearing

concerning her ability to pay counsel fees.

{¶ 9} Pursuant to R.C. 2941.51(D), the trial court ordered Clark to pay the county

the cost of her appointed-counsel’s legal fees and expenses. The court found that

2 Champaign C.P. No. 2020-CR-54. -4-

“Defendant is employable and in good health” (Sentencing Tr. 29), but it did not explicitly

find that Clark had the ability to pay. Clark argues that we have held that, before ordering

a defendant to pay these fees and expenses under R.C. 2941.51(D), a court must make

explicit findings about the defendant’s ability to pay. She is correct, we have so held.

See State v. Taylor, 2018-Ohio-2858, 117 N.E.3d 887, ¶ 21 (2d Dist.). But on appeal of

our decision, the Ohio Supreme Court reversed. In an opinion issued after Clark filed her

brief in this case, the Supreme Court disagreed with us and held that “a trial court in a

criminal case may assess court-appointed-counsel fees against a defendant without

making specific findings on the record to justify the fee assessment.” State v. Taylor, Ohio

Slip Opinion 2020-Ohio-6786, __ N.E.2d __, ¶ 2.

{¶ 10} Therefore, the trial court did not err in ordering Clark to pay her appointed-

counsel fees and expenses.

{¶ 11} The first assignment of error is overruled.

B. The prison sentence

{¶ 12} The second, third, and fourth assignments of error challenge Clark’s prison

sentence as being not supported by the record:

The trial court’s decision to impose prison sentences in both cases,

instead of terms of community-control sanctions, is clearly and convincingly

unsupported by the record.

The trial court’s decision to impose a maximum prison term for

Appellant’s conviction for attempted aggravated possession of drugs, as a

felony of the third degree, is clearly and convincingly unsupported by the

record. -5-

The trial court’s findings in support of its decision to impose

consecutive sentences are clearly and convincingly unsupported by the

record.

{¶ 13} R.C. 2953.08(G)(2) sets forth the standard that we use in reviewing a felony

sentence: an appellate court may increase, reduce, or modify a sentence, or it may vacate

the sentence and remand for resentencing, only if it clearly and convincingly finds either

that (1) the record does not support the sentencing court’s findings under certain

enumerated statutory sections, or (2) the sentence is otherwise contrary to law. “A

sentence is contrary to law when it does not fall within the statutory range for the offense

or if the trial court fails to consider the purposes and principles of felony sentencing set

forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.” (Citation

omitted.) State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.).

{¶ 14} Clark concedes that her sentence was within the statutory range. Her

arguments in these assignments of error focus on the trial court’s findings.

{¶ 15} The court made numerous findings, based on the presentence investigation

report, statements of counsel, Clark’s statements, and the court’s interaction with her. As

an initial matter, the court found that Clark had violated several conditions of the bond

that it had set in the first case. She had telephone contact with her co-defendant not just

once but 15 times. She was caught tampering with a urine screen and then refused to

submit to a new one. And, of course, Clark collaborated with Rose to commit the criminal

offense for which she was convicted in the second case.

{¶ 16} Turning to the sentencing statutes, the court stated that it had considered

and applied the purposes and principles of sentencing in R.C. 2929.11 and that it had -6-

considered the seriousness and recidivism factors in R.C. 2929.12. The court found that

Clark had conspired with her co-defendant to secure concealed evidence of drug

possession while she was on bond for a drug-possession offense involving the same co-

defendant. She made 15 unauthorized contacts with her co-defendant in the attempt to

secure the methamphetamine hidden in the field. In sum, the court found that Clark had,

as the court put it, engaged in “criminogenic behaviors and attitudes that champion the

destruction of evidence, conspiracy to possess a large amount of drugs and evasion of

personal responsibility for her criminal conduct.” The court further found that Clark had a

criminal history, that she had not responded favorably to sanctions previously imposed,

that she had a demonstrated pattern of drug or alcohol abuse that was related to the

offense, and that she refused treatment, having failed to complete two different residential

drug-treatment programs. The court found further that Clark showed no genuine remorse

for the offenses and that she continued to avoid taking responsibility for her conduct.

Imposing a prison term

{¶ 17} Clark contends in the second assignment of error that the court’s decision

to impose a prison sentence, rather than community control, was unsupported by the

record. She argues that she had no previous felony convictions and points out that she

admitted that she had a drug problem and indicated a willingness to seek treatment. She

also points out that she is the mother of four children, three of whom were minors at the

time of sentencing.

{¶ 18} The trial court determined that the offense of attempted aggravated

possession of drugs carried a presumption for a prison term under R.C. 2929.13(D)(1)

and that the presumption had not been rebutted in favor of community control under R.C. -7-

2929.13(D)(2). The court found that community control would not adequately punish

Clark and protect the public from future crime, because the recidivism factors in R.C.

2929.12 showed a greater likelihood to commit future crimes. Further, the court found

that community control would demean the seriousness of her offenses because the

seriousness factors in R.C. 2929.12 showed that Clark’s conduct was of the more serious

kind.

{¶ 19} The record supported the trial court’s findings. The court did not err by

imposing a prison terms instead of community control.

{¶ 20} The second assignment of error is overruled.

Imposing the maximum prison term

{¶ 21} In the third assignment of error, Clark contends that the trial court’s decision

to impose the maximum prison term for attempted aggravated possession of drugs was

{¶ 22} “A trial court is not required to make any particular findings to justify

maximum prison sentences.” State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 75 (2d

Dist.), citing State v. Whitt, 2d Dist. Clark No. 2014-CA-125, 2016-Ohio-843, ¶ 8. We note

too that, in clarifying how an appellate court is to review a felony sentence under R.C.

2953.08(G)(2), the Ohio Supreme Court has ruled that R.C. 2953.08(G)(2)(a) “does not

provide a basis for an appellate court to modify or vacate a sentence if it concludes that

the record does not support the sentence under R.C. 2929.11 and R.C. 2929.12 because

* * * R.C. 2929.11 and R.C. 2929.12 are not among the statutes listed in the provision.”

State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __ N.E.3d __, ¶ 31. Therefore “an

appellate court may not modify or vacate a felony sentence based upon a finding by clear -8-

and convincing evidence that the record does not support the trial court’s ‘findings’ under

R.C. 2929.11 and R.C. 2929.12.” State v. Burks, 2d Dist. Clark No. 2019-CA-70, 2021-

Ohio-224, ¶ 7, citing Jones. Moreover, “* * * R.C. 2953.08(G)(2)(b) does not provide a

mechanism for an appellate court to modify or vacate a felony sentence based upon a

finding that the sentence is ‘contrary to law’ because it clearly and convincingly is not

supported by the record under R.C. 2929.11 and R.C. 2929.12.” Id. at ¶ 8, citing Jones at

¶ 32-39.

{¶ 23} Here, the record shows that the trial court considered R.C. 2929.11 and

2929.12. More than that, the record shows that the court explicitly considered each of the

relevant factors in R.C. 2929.12 and made findings that were well-supported by the

record. We find no basis on which to disturb the trial court’s decision to impose the

maximum prison term.

{¶ 24} The third assignment of error is overruled.

Imposing consecutive sentences

{¶ 25} Finally, in the fourth assignment of error, Clark argues that the trial court’s

findings supporting its decision to impose consecutive sentences are unsupported by the

{¶ 26} R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if

it determines that: (1) consecutive service is necessary to protect the public from future

crime or to punish the offender; (2) consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public;

and (3) one of three statutory findings is satisfied, one of which is that the offender

committed one or more of the offenses while she was awaiting trial or sentencing, was on -9-

community control, or was under post-release control for a prior offense. R.C.

2929.14(C)(4)(a).

{¶ 27} R.C. 2953.08(G)(2) provides that, “where a trial court properly makes the

findings mandated by R.C. 2929.14(C)(4), an appellate court may not reverse the trial

court’s imposition of consecutive sentences unless it first clearly and convincingly finds

that the record does not support the trial court’s findings.” State v. Withrow, 2016-Ohio-

2884, 64 N.E.3d 553, ¶ 38 (2d Dist.). “It is a very deferential standard of review[.]” Id.

{¶ 28} The trial court here made the findings mandated by R.C. 2929.14(C)(4), and

we do not clearly and convincingly find that the record failed to support them.

{¶ 29} The fourth assignment of error is overruled.

III. Conclusion

{¶ 30} We have overruled all of the assignments of error presented. The trial

court’s judgments are affirmed.

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Jane A. Napier Michael J. Scarpelli Hon. Nick A. Selvaggio