[Cite as State v. Colquhoun, 2017-Ohio-7929.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-9 : v. : Trial Court Case No. 2016-CR-433 : DUSTIN A. COLQUHOUN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 29th day of September, 2017.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant, Dustin A. Colquhoun, appeals from the trial court’s
decision to accept his plea of guilty on one count of aggravated possession of a controlled
substance, a third-degree felony under R.C. 2925.11(A) and (C)(1)(b). Presenting four
assignments of error, Colquhoun argues that his sentence constitutes cruel and unusual
punishment for purposes of the Eighth Amendment to the federal constitution and Article
I, Section 9 of the Ohio Constitution; that his sentence is contrary to the provisions of R.C.
5119.26 and R.C. Chapter 5120; and that his sentence is a violation of the Equal
Protection Clause of the federal constitution and Article I, Section 2 of the Ohio
Constitution. We find that Colquhoun’s arguments lack merit, and we therefore affirm
his conviction.
I. Facts and Procedural History
{¶ 2} A Greene County grand jury issued an indictment against Colquhoun on
August 19, 2016, charging him with possession of methamphetamine in a quantity equal
to or exceeding, but less than five times, the bulk amount. On October 6, 2016,
Colquhoun appeared before the trial court and pleaded guilty as charged. At his
sentencing hearing on December 29, 2016, the court sentenced him to serve a term of
imprisonment of 36 months, the maximum available penalty under R.C.
2929.14(A)(3)(b).1
{¶ 3} Appellant filed his notice of appeal on February 8, 2017, along with a motion
for appointment of counsel, a motion for preparation of a transcript at the State’s expense,
1 The sentence includes an optional term of post release control lasting up to three years. -3-
and a motion for leave to file a delayed appeal. We sustained Appellant’s motions in
decisions entered on March 15, 2017 and March 23, 2017.
II. Analysis
{¶ 4} For his first assignment of error, Colquhoun contends that:
THE TRIAL COURT SENTENCE TO 36 MONTHS IN PRISON WAS
CONTRARY TO LAW IN VIOLATION OF THE CRUEL AND UNUSUAL
PUNISHMENT CLAUSE OF THE 8TH AND 14TH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 9 OF THE
OHIO CONSTITUTION.
{¶ 5} Colquhoun posits that “a careful review of his prior criminal history * * * links
[virtually] all [of] his convictions to the abuse of alcohol or drugs.” Appellant’s Br. 12.
Suggesting “that he may be statutorily ineligible to obtain any adequate and appropriate
treatment for his * * * addictions [while] in prison” because of his record of recidivism, he
appears to argue that his incarceration in the absence of treatment constitutes cruel and
unusual punishment. See id. at 6-10 and 12-13. In its response, the State argues that
Colquhoun’s sentence does not violate the Eighth Amendment as a matter of law because
the term of imprisonment imposed by the trial court falls within the range specified in R.C.
2929.14(A)(3)(b).2 Appellee’s Br. 2-3.
{¶ 6} Eighth Amendment “violations are rare, and instances of cruel and unusual
punishment are limited to those [sanctions that], under the circumstances, would be
considered shocking to any reasonable person.” State v. Harding, 2d Dist. Montgomery
2 R.C. 2929.14(A)(3)(b) states that “[f]or a felony of the third degree that is not an offense [to which R.C. 2929.14(A)(3)(a)] applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” -4-
No. 20801, 2006-Ohio-481, ¶ 77, citing State v. Weitbrecht, 86 Ohio St.3d 368, 370, 715
N.E.2d 167 (1999). To violate the Eighth Amendment, a “punishment must be so greatly
disproportionate to [an] offense that it shocks the [community’s] sense of justice.” Id.,
citing Weitbrecht, 86 Ohio St.3d at 370.
{¶ 7} Because “we are bound to give substantial deference to the General
Assembly, which has established a specific range of punishment for every offense,” a
sentence “that falls within the terms of a valid statute [generally] cannot amount to * * *
cruel and unusual punishment.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,
888 N.E.2d 1073, ¶ 24; State v. Mayberry, 2014-Ohio-4706, 22 N.E.3d 222, ¶ 38 (2d
Dist.), citing Hairston, 2008-Ohio-2338, ¶ 21. This general rule applies equally to
sentences imposed on “persons with extensive health problems” inasmuch as the
“legislature did not see fit to provide for lesser sentences” for such persons. See State
v. O’Shannon, 44 Ohio App.3d 197, 198, 542 N.E.2d 693 (10th Dist. 1988).
{¶ 8} As the State observes, the thirty-six month term of imprisonment to which the
trial court sentenced Colquhoun is within the range set by R.C. 2929.14(A)(3)(b), meaning
that the sentence presumptively cannot amount to cruel and unusual punishment in
violation of the Eighth Amendment. The record before us, moreover, suggests no reason
for abandoning the general rule in this case. Consequently, Colquhoun’s first
assignment of error is overruled.
{¶ 9} For his second assignment of error, Colquhoun argues that:
CONTRARY TO LAW IN VIOLATION OF APPELLANT’S RIGHT(S)
UNDER R.C. § 5119.26 AS A PERSON DETAINED FOR MEDICAL -5-
PURPOSES TO RECEIVE ADEQUATE AND APPROPRIATE
TREATMENT[.]
{¶ 10} Referring to the possibility that he “may be ineligible” to receive medical
care for his addictions while incarcerated, Colquhoun “submits that the trial court’s
sentence [of] 36 months in prison, without the availability of statutorily authorized
adequate and appropriate drug and alcohol addiction treatment, is [a] clear violation of
Ohio law and should be vacated forthwith.” Appellant’s Br. 12-13. The State contends
to the contrary that not only has Colquhoun failed to establish that he is ineligible for all
potentially available treatment programs, but the provisions of R.C. 5119.26 do not apply
to him. Appellee’s Br. 3-4.
{¶ 11} The record of this matter is silent on the question of whether Colquhoun is
eligible for one or more treatment programs, although at the end of its judgment entry, the
trial court appended a request that “the warden * * * attempt to admit [Colquhoun] into the
OASIS [program] or [a] similar program as soon as practical.” Judgment Entry 4, Dec.
29, 2016. We gather from this request that the trial court, at least, believed that
Colquhoun would be eligible for the OASIS program or a comparable offering.
{¶ 12} Moreover, R.C. 5119.26 states in relevant part that “a person detained for
medical purposes” shall retain his right “to receive adequate and appropriate treatment.”
Regardless of the extent to which Colquhoun’s addiction to alcohol or drugs has
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[Cite as State v. Colquhoun, 2017-Ohio-7929.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-9 : v. : Trial Court Case No. 2016-CR-433 : DUSTIN A. COLQUHOUN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 29th day of September, 2017.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant, Dustin A. Colquhoun, appeals from the trial court’s
decision to accept his plea of guilty on one count of aggravated possession of a controlled
substance, a third-degree felony under R.C. 2925.11(A) and (C)(1)(b). Presenting four
assignments of error, Colquhoun argues that his sentence constitutes cruel and unusual
punishment for purposes of the Eighth Amendment to the federal constitution and Article
I, Section 9 of the Ohio Constitution; that his sentence is contrary to the provisions of R.C.
5119.26 and R.C. Chapter 5120; and that his sentence is a violation of the Equal
Protection Clause of the federal constitution and Article I, Section 2 of the Ohio
Constitution. We find that Colquhoun’s arguments lack merit, and we therefore affirm
his conviction.
I. Facts and Procedural History
{¶ 2} A Greene County grand jury issued an indictment against Colquhoun on
August 19, 2016, charging him with possession of methamphetamine in a quantity equal
to or exceeding, but less than five times, the bulk amount. On October 6, 2016,
Colquhoun appeared before the trial court and pleaded guilty as charged. At his
sentencing hearing on December 29, 2016, the court sentenced him to serve a term of
imprisonment of 36 months, the maximum available penalty under R.C.
2929.14(A)(3)(b).1
{¶ 3} Appellant filed his notice of appeal on February 8, 2017, along with a motion
for appointment of counsel, a motion for preparation of a transcript at the State’s expense,
1 The sentence includes an optional term of post release control lasting up to three years. -3-
and a motion for leave to file a delayed appeal. We sustained Appellant’s motions in
decisions entered on March 15, 2017 and March 23, 2017.
II. Analysis
{¶ 4} For his first assignment of error, Colquhoun contends that:
THE TRIAL COURT SENTENCE TO 36 MONTHS IN PRISON WAS
CONTRARY TO LAW IN VIOLATION OF THE CRUEL AND UNUSUAL
PUNISHMENT CLAUSE OF THE 8TH AND 14TH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 9 OF THE
OHIO CONSTITUTION.
{¶ 5} Colquhoun posits that “a careful review of his prior criminal history * * * links
[virtually] all [of] his convictions to the abuse of alcohol or drugs.” Appellant’s Br. 12.
Suggesting “that he may be statutorily ineligible to obtain any adequate and appropriate
treatment for his * * * addictions [while] in prison” because of his record of recidivism, he
appears to argue that his incarceration in the absence of treatment constitutes cruel and
unusual punishment. See id. at 6-10 and 12-13. In its response, the State argues that
Colquhoun’s sentence does not violate the Eighth Amendment as a matter of law because
the term of imprisonment imposed by the trial court falls within the range specified in R.C.
2929.14(A)(3)(b).2 Appellee’s Br. 2-3.
{¶ 6} Eighth Amendment “violations are rare, and instances of cruel and unusual
punishment are limited to those [sanctions that], under the circumstances, would be
considered shocking to any reasonable person.” State v. Harding, 2d Dist. Montgomery
2 R.C. 2929.14(A)(3)(b) states that “[f]or a felony of the third degree that is not an offense [to which R.C. 2929.14(A)(3)(a)] applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” -4-
No. 20801, 2006-Ohio-481, ¶ 77, citing State v. Weitbrecht, 86 Ohio St.3d 368, 370, 715
N.E.2d 167 (1999). To violate the Eighth Amendment, a “punishment must be so greatly
disproportionate to [an] offense that it shocks the [community’s] sense of justice.” Id.,
citing Weitbrecht, 86 Ohio St.3d at 370.
{¶ 7} Because “we are bound to give substantial deference to the General
Assembly, which has established a specific range of punishment for every offense,” a
sentence “that falls within the terms of a valid statute [generally] cannot amount to * * *
cruel and unusual punishment.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,
888 N.E.2d 1073, ¶ 24; State v. Mayberry, 2014-Ohio-4706, 22 N.E.3d 222, ¶ 38 (2d
Dist.), citing Hairston, 2008-Ohio-2338, ¶ 21. This general rule applies equally to
sentences imposed on “persons with extensive health problems” inasmuch as the
“legislature did not see fit to provide for lesser sentences” for such persons. See State
v. O’Shannon, 44 Ohio App.3d 197, 198, 542 N.E.2d 693 (10th Dist. 1988).
{¶ 8} As the State observes, the thirty-six month term of imprisonment to which the
trial court sentenced Colquhoun is within the range set by R.C. 2929.14(A)(3)(b), meaning
that the sentence presumptively cannot amount to cruel and unusual punishment in
violation of the Eighth Amendment. The record before us, moreover, suggests no reason
for abandoning the general rule in this case. Consequently, Colquhoun’s first
assignment of error is overruled.
{¶ 9} For his second assignment of error, Colquhoun argues that:
CONTRARY TO LAW IN VIOLATION OF APPELLANT’S RIGHT(S)
UNDER R.C. § 5119.26 AS A PERSON DETAINED FOR MEDICAL -5-
PURPOSES TO RECEIVE ADEQUATE AND APPROPRIATE
TREATMENT[.]
{¶ 10} Referring to the possibility that he “may be ineligible” to receive medical
care for his addictions while incarcerated, Colquhoun “submits that the trial court’s
sentence [of] 36 months in prison, without the availability of statutorily authorized
adequate and appropriate drug and alcohol addiction treatment, is [a] clear violation of
Ohio law and should be vacated forthwith.” Appellant’s Br. 12-13. The State contends
to the contrary that not only has Colquhoun failed to establish that he is ineligible for all
potentially available treatment programs, but the provisions of R.C. 5119.26 do not apply
to him. Appellee’s Br. 3-4.
{¶ 11} The record of this matter is silent on the question of whether Colquhoun is
eligible for one or more treatment programs, although at the end of its judgment entry, the
trial court appended a request that “the warden * * * attempt to admit [Colquhoun] into the
OASIS [program] or [a] similar program as soon as practical.” Judgment Entry 4, Dec.
29, 2016. We gather from this request that the trial court, at least, believed that
Colquhoun would be eligible for the OASIS program or a comparable offering.
{¶ 12} Moreover, R.C. 5119.26 states in relevant part that “a person detained for
medical purposes” shall retain his right “to receive adequate and appropriate treatment.”
Regardless of the extent to which Colquhoun’s addiction to alcohol or drugs has
contributed to his criminal proclivities, his present incarceration is not “for medical
purposes.” The statute’s use of the word “detained,” as opposed to the word
“imprisoned” or the word “incarcerated,” further suggests that it is applicable not to a
person in Colquhoun’s circumstances—i.e. a person sentenced to prison for the -6-
commission of a crime—but to a person subjected to involuntary confinement, on criminal
charges or otherwise, primarily as the result of being adjudicated mentally incompetent.3
Compare R.C. 5119.26 with R.C. 2945.401(A), 5119.01(A)(17)(a)(i)-(ii), and 5119.33.
{¶ 13} We find that the provisions of R.C. 5119.26 are inapplicable in this case.
Therefore, Colquhoun’s second assignment of error is overruled.
{¶ 14} For his third assignment of error, Colquhoun contends that:
CONTRARY TO LAW IN THAT THE PROVISIONS OF R.C. CHAPTER
5120 MAY RENDER APPELLANT STATUTORILY INELIGIBLE TO
RECEIVE NECESSARY MEDICAL DRUG TREATMENT WHILE
INCARCERATED IN THE OHIO PRISON SYSTEM.
{¶ 15} Colquhoun presents no argument expressly connected to this contention,
and it appears to be a restatement of the premise of his second assignment of error. See
Appellant’s Br. 12-13. As we determined when we considered the previous assignment,
Colquhoun has not shown that he is, in fact, ineligible for OASIS or a similar program of
addiction treatment, and the trial court’s judgment entry suggests that he is eligible to
participate in OASIS. On the record before us, then, Colquhoun’s third assignment of
error is overruled.
{¶ 16} For his fourth assignment of error, Colquhoun argues that:
CONTRARY TO LAW IN VIOLATION OF THE EQUAL PROTECTION
CLAUSE OF SECTION 2, ARTICLE 1 OF THE OHIO CONSTITUTION
3 R.C. Chapter 5119 is captioned “Department of Mental Health and Addiction Services.” -7-
AND THE UNITED STATES CONSTITUTION IN THAT THE MEDICAL
DRUG TREATMENT PRACTICALLY AVAILABLE IN THE OHIO PRISON
SYSTEM BEARS NO RATIONAL RELATIONSHIP TO THE LEGITIMATE
GOVERNMENT OBJECTIVE OF ADDRESSING RECIDIVISM FATHERED
BY AN ESCALATING OPIOID EPIDEMIC.
{¶ 17} Colquhoun provides no argument expressly elaborating on this argument,
though he notes that in another case—Montgomery County Court of Common Pleas Case
No. 2015 CR 03916—he was approved for entry into the STOP program, and on this
basis, opines that his sentence in the instant matter “constitute[s] an unnecessary burden
upon state resources.” Appellant’s Br. 13. Implicitly, Colquhoun argues that the cost of
his incarceration for 36 months could be avoided or at least reduced were he allowed to
enter the STOP program instead. He adds, similarly, that his placement in an addiction
treatment program instead of being imprisoned “may well [be] the best chance for society
to economically achieve a workable path way [sic] to bring an end to [his] drug and alcohol
crimes.” Id.
{¶ 18} Equal protection “analysis begins with the rebuttable presumption that
statutes are constitutional.” State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812
N.E.2d 963, ¶ 5, citing Adamsky v. Buckeye Local Sch. Dist., 73 Ohio St.3d 360, 361, 653
N.E.2d 212 (1995). We need not, however, “even reach the equal protection issue if all
offenders in a class are treated equally.” Id. at ¶ 6, citing Conley v. Shearer, 64 Ohio
St.3d 284, 290, 595 N.E.2d 862 (1992). Here, Colquhoun fails to indicate whether the
“medical drug treatment” program or programs to which he refers is the OASIS program,
the STOP program, or the whole panoply of treatment programs available in Ohio. -8-
Furthermore, he neither defines the “class” to which he would belong for purposes of
equal protection analysis, nor alleges that he has been subjected to differential or
discriminatory treatment with respect to any other person or persons. Accordingly, we
hold that Colquhoun’s argument on this point lacks merit, and we overrule his fourth
assignment of error.
III. Conclusion
{¶ 19} We find that Colquhoun’s assignments of error are unsupported by the
record and lack merit. Therefore, we affirm the trial court.
HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Nathaniel R. Luken Carlo C. McGinnis Hon. Michael A. Buckwalter