[Cite as State v. Drummond, 2024-Ohio-81.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case Nos. 22CA11 : 23CA2 v. : : DECISION AND CHRISTOPHER DRUMMOND, : JUDGMENT ENTRY : Defendant-Appellant. : RELEASED 1/8/2024 _____________________________________________________________ APPEARANCES:
Christopher Pagan, Repper-Pagan Law, Ltd., Middletown, Ohio, for Appellant.
Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Assistant Gallia County Prosecuting Attorney, Gallipolis, Ohio, for Appellee. _____________________________________________________________
Smith, P.J.
{¶1} Christopher Drummond, Appellant, appeals from the judgment of the
Gallia County Court of Common Pleas revoking his community control in two
cases and sentencing him to consecutive terms of imprisonment. On appeal,
Drummond contends: 1) that his underlying conviction for failure to appear was
unconstitutional because he received ineffective assistance of counsel; 2) that the
trial court erred by imposing consecutive sentences; and 3) that it is unlawful to
deny his appellate counsel a copy of his presentence investigation report to
investigate, research, and present issues for appeal. As explained further below, Gallia App. Nos. 22CA11 and 23CA2 2
because Drummond was not granted leave to appeal his underlying conviction for
failure to appear, his first assignment of error which challenges the validity of that
conviction, has been stricken from his appellate brief. Thus, we do not consider it.
Further, because we have found no merit to his second and third assignments of
error, they are both overruled and the judgment of the trial court is affirmed.
FACTS
{¶2} On January 16, 2020, Drummond was indicted for grand theft of a
motor vehicle, a fourth-degree felony in violation of R.C. 2913.02(A)(1). While
the case was pending, he failed to appear for a scheduled hearing. As a result, he
was charged with failure to appear, a fourth-degree felony in violation of R.C.
2937.99(A). He ultimately entered into a plea agreement with the State which
required him to plead guilty to both charges in exchange for a recommended
sentence of 24 months of community control. At the original sentencing hearing,
the trial court imposed the agreed-upon sentence of community control and it also
reserved 18 month prison terms on each of the offenses. The trial court informed
Drummond that if he violated his community control, the reserved prison terms
would be imposed consecutively for an aggregate prison sentence of 36 months.
The trial court also went on to make consecutive sentence findings, which it
included in the sentencing entry. Gallia App. Nos. 22CA11 and 23CA2 3
{¶3} Drummond subsequently violated his community control by failing to
report to the probation department, missing or refusing drug screens, and
absconding from supervision all together. A revocation hearing was held on July
5, 2022. Drummond admitted to the charged violations and the matter was
scheduled for sentencing on July 26, 2022, at which time the trial court sentenced
Drummond to the reserved 18-month prison terms in each underlying case. The
trial court ordered these terms to be served consecutively for an aggregate prison
term of 36 months.
{¶4} Drummond immediately appealed from the judgment revoking his
community control and sentencing him to prison on the underlying grand theft of a
motor vehicle case. However, he failed to file an appeal from the judgment entry
that revoked his community control in the underlying failure to appear case. He
later moved this Court to permit him to file a delayed appeal from the revocation of
community control related to his failure to appear conviction, which we granted.
His motion for delayed appeal appears to have also sought leave to appeal from his
underlying conviction for failure to appear. After further briefing, we denied leave
to appeal the underlying conviction. These matters are now before us, having been
consolidated for purposes of appeal.
ASSIGNMENTS OF ERROR
I. DRUMMOND’S FTA CONVICTION WAS UNCONSTITUTIONAL BECAUSE HE RECEIVED Gallia App. Nos. 22CA11 and 23CA2 4
INEFFECTIVE ASSISTANCE OF COUNSEL [IAC] AT THE PLEA HEARING.
II. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.
III. IT IS UNLAWFUL TO DENY APPELLANT [SIC] COUNSEL A COPY OF DRUMMOND’S PSI TO INVESTIGATE, RESEARCH, AND PRESENT ISSUES FOR APPEAL.
ASSIGNMENT OF ERROR I
{¶5} In his first assignment of error, Drummond contends that his
underlying conviction for failure to appear was unconstitutional because he
received ineffective assistance of counsel at the plea hearing. Drummond sets
forth the following “Issue presented for review”:
1. Counsel’s performance at the plea hearing was unreasonable because the Pretrial Release Order lacked a personal recognizance release condition and FTA liability required violation of a recognizance condition. And Drummond was prejudiced because there is a reasonable probability he would have proceeded to trial when the Pretrial Release Order lacked a recognizance condition to violate.
The State responds by arguing that “the majority of Appellant’s argument is rooted
in a misunderstanding of the actual bond form in this case controlling the failure to
appeal conviction.” The State argues that contrary to Drummond’s assertions,
“[t]he record is clear as to the issuance of an own recognizance bond and
Appellant’s subsequent failure to appear.” Gallia App. Nos. 22CA11 and 23CA2 5
{¶6} However, because Drummond’s argument challenges his underlying
conviction for failure to appear and because we have administratively denied
Drummond’s motion for leave to file a delayed appeal from his underlying
convictions and sentences, Drummond’s first assignment of error must be stricken
from his brief. Accordingly, we will not address it.
ASSIGNMENT OF ERROR II
{¶7} In his second assignment of error, Drummond contends that the trial
court erred by imposing consecutive sentences. He raises several arguments in
support of this assignment of error, which will be set forth in more detail below.
The State, on the other hand, argues that the imposition of consecutive sentences
was appropriate in this case and that the trial court made the required findings for
imposing consecutive sentences. The State notes that Drummond not only
absconded from supervision for over a year, but that he also failed to comply with
required programming, failed to report to the probation department, and refused
urine screens.
Standard of Review
{¶8} “When reviewing felony sentences appellate courts must apply the
standard of review set forth in R.C. 2953.08(G)(2).” State v. Johnson, 4th Dist.
Adams No. 19CA1082, 2019-Ohio-3479, ¶ 7, citing State v. Marcum, 146 Ohio Gallia App. Nos. 22CA11 and 23CA2 6
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 7. R.C. 2953.08(G)(2) states as
follows:
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶9} “Clear and convincing evidence is ‘that measure or degree of proof
which * * * will produce in the mind of the trier of facts a firm belief or conviction
as to the facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123
Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
This Court has explained as follows regarding the review of felony sentences:
“ ‘[R.C. 2953.08(G)(2)] does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court's findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.’ ” Gallia App. Nos. 22CA11 and 23CA2 7
State v. Spangler, 4th Dist. Athens No. 21CA17, 2023-Ohio-2003, ¶ 17, quoting
State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-4458, ¶ 8, in turn
quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992
N.E.2d 453, ¶ 20-21.
Consecutive Sentences
{¶10} There is a statutory presumption in favor of concurrent sentences
pursuant to R.C. 2929.41(A). In order to justify the imposition of consecutive
terms of imprisonment, “a trial court must make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its
sentencing entry, but the court has no obligation to state reasons to support its
findings.” State v. Blair, 4th Dist. Athens No. 18CA24, 2019-Ohio-2768, ¶ 52,
citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
syllabus. This Court explained as follows in State v. Cottrill regarding the findings
required to support the imposition of consecutive sentences:
“Under the tripartite procedure set forth in R.C. 2929.14(C)(4), prior to imposing consecutive sentences a trial court must find that: (1) consecutive sentences are 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) that one of three circumstances specified in the statute applies.”
State v. Cottrill, 4th Dist. Ross No. 20CA3704, 2020-Ohio-7033, ¶ 14, quoting
State v. Baker, 4th Dist. Athens No. 13CA18, 2014-Ohio-1967, ¶ 35-36. Gallia App. Nos. 22CA11 and 23CA2 8
{¶11} Further, as we explained in Cottrill, the three circumstances are as
“(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
Cottrill at ¶ 14, quoting R.C. 2929.14(C)(4)(a)-(c).
Any findings required by the applicable statutory sentencing provisions and made
by the sentencing court, such as those contained in R.C. 2929.14(C)(4)(c), must
still be supported by the record. State v. Gray, 4th Dist. Scioto No. 18CA3857,
2019-Ohio-5317, ¶ 21.
{¶12} In State v. Gwynne, -- Ohio St.3d --, 2022-Ohio-4607, -- N.E.3d --, ¶
1-2 (“Gwynne IV”), a majority of the Court held that “the findings required by R.C.
2929.14(C)(4) to impose consecutive prison sentences on an offender ‘must be
made in consideration of the aggregate term to be imposed.’ ” State v. Gwynne, -- Gallia App. Nos. 22CA11 and 23CA2 9
Ohio St.3d --, 2023-Ohio-3851, -- N.E.3d --, ¶ 2 (“Gwynne V”), citing Gwynne IV,
supra. Additionally, in Gwynne IV, the Court concluded that
appellate review of consecutive sentences did not require appellate courts to defer to the sentencing court’s findings; rather, this court explained that “appellate courts * * * review the record de novo and decide whether the record clearly and convincingly does not support the consecutive-sentence findings.”
Gwynne V at ¶ 2, quoting Gwynne IV at ¶ 1.
However, the Supreme Court of Ohio has since departed from its prior reasoning in
Gwynne IV and has now clearly held as follows:
The plain language of R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s consecutive-sentence findings, and the trial court’s findings must be upheld unless those findings are clearly and convincingly not supported by the record.
Gwynne V at ¶ 5.
{¶13} Thus, the Court has now clearly affirmed that an appellate court’s
application of a de novo standard of review to consecutive-sentence findings “is
contrary to the plain language of R.C. 2953.08(G)(2).” Gwynne V at ¶ 16. This is
because “[d]e novo review of a trial court’s consecutive-sentence findings is
simply incongruous with the deference that the legislature stated an appellate court
must give those statutory findings in the statutory language of R.C.
2953.08(G)(2).” Id. Gallia App. Nos. 22CA11 and 23CA2 10
Imposition of Consecutive Sentences Following Revocation of Community Control
{¶14} In State v. Marcum, 4th Dist. Hocking No. 19CA7, 2020-Ohio-3962,
¶ 9, we explained that under appropriate circumstances, such as when a prison term
is not required, R.C. 2929.15 permits a court to impose community control
sanctions as a sentence for a felony offense. We further noted that trial courts have
three options “ ‘for punishing offenders who violate community control sanctions.’
” Id., quoting State v. McPherson, 142 Ohio App.3d 274, 278, 755 N.E.2d 426
(4th Dist. 2001) and R.C. 2929.15(B)(1)(a)-(c). The first option is to “lengthen the
term of the community control sanction[.]” Id. The second option is to “impose a
more restrictive community control sanction[.]” Id. The third option is to “impose
a prison term on the offender[.]” Id.
{¶15} In Marcum, we observed that trial courts are “not 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.” Marcum at ¶ 10, citing State v. Dusek, 4th Dist. Hocking No.
18CA18, 2019-Ohio-3477, ¶ 4 (the trial court imposed concurrent community
control sanctions but notified appellant that violating those sanctions could result
in consecutive prison terms). As we observed in Marcum, “[t]his is primarily
because ‘ “* * * when the defendant violates community control, the court imposes
an appropriate sanction for that misconduct, but not for the original or underlying Gallia App. Nos. 22CA11 and 23CA2 11
crime.” ’ ” Marcum at fn. 1, quoting State v. Hart, 4th Dist. Athens No. 13CA8,
2014-Ohio-3733, ¶ 23, in turn quoting State v. Beverly, 4th Dist. Ross No.
01CA2603, 2002-Ohio-118, *3.
Legal Analysis
{¶16} Drummond now essentially contends on appeal that the trial court
improperly imposed consecutive sentences at his original sentencing hearing
instead of at the sentencing hearing that followed the revocation of his community
control. Drummond argues that such a determination by the trial court at the
original sentencing hearing constituted an unlawful predetermination of what his
sentence would be if he violated his community control. This argument seems to
be based upon the fact that prison terms imposed for a violation of community
control should be designed to punish the violation and not underlying criminal
offense. See Marcum, supra, at fn.1.
{¶17} Drummond raises additional arguments related to the trial court’s
imposition of consecutive sentences. Drummond argues that the trial court
purported to impose consecutive prison terms in the event of a future community
control violation while sentencing him at his original sentencing hearing and as a
result, that the trial court’s consecutive sentence analysis was obscured at the
sentencing hearing that took place after the community control revocation. More
specifically, Drummond argues that it cannot be discerned from the record whether Gallia App. Nos. 22CA11 and 23CA2 12
the trial court believed it had the discretion regarding whether or not to impose
consecutive sentences at the time when community control was violated, or
whether it believed it had already imposed consecutive sentences when it originally
sentenced Drummond for his underlying felony convictions.
{¶18} Drummond also argues that the trial court made incomplete
consecutive sentence findings during the revocation hearing. More specifically, he
claims that the trial court added an “awaiting trial” finding in the sentencing order
that it did not make orally at the sentencing hearing. Finally, Drummond argues
that the record fails to support the trial court’s findings that a 36-month aggregate
prison term for the failure to appear and motor vehicle theft convictions were
proportionate to the seriousness of his conduct. Drummond’s argument, in part, is
based upon his claim that this conviction for failure to appear was invalid.
{¶19} A review of the record before us reveals that after Drummond
admitted to violating the terms of his community control, the trial court chose
option three, which was to impose previously reserved prison terms upon
Drummond for the community control violations. The record further reveals that
at the original sentencing hearing in 2021, the trial court not only notified
Drummond that he could be sentenced to consecutive prison terms in the event he
violated his community control, the trial court all but promised him that he would
be sentenced to consecutive prison terms for a violation of his community control. Gallia App. Nos. 22CA11 and 23CA2 13
A review of the original sentencing hearing transcript reveals that this was due, in
part, to the fact that Drummond’s plea agreement included a sentencing
recommendation from the State, which incorporated Drummond’s agreement that
he would be sentenced to consecutive prison terms in the event of a violation of his
community control. Despite these facts, we conclude that it is clear after reviewing
the community control violation sentencing transcript that the trial court believed it
had discretion in determining how the violations should be punished.
{¶20} Although the trial court did make consecutive findings when it
originally sentenced Drummond on his underlying felony offenses, it is clear from
the record that the trial court only imposed terms of community control at that
time. In fact, this case is procedurally very similar to what occurred in State v.
Marcum, supra. In Marcum, the trial court sentenced the appellant to terms of
community control, but informed him that if he violated the terms of community
control, the reserved prison terms would be ordered to be served consecutively.
Marcum at ¶ 4. A similar situation was examined in State v. Howard, 162 Ohio
St.3d 314, 2020-Ohio-3195, 165 N.E.3d 1088. Howard was originally sentenced
to terms of community control but was notified during the original sentencing
hearing that consecutive prison terms would be imposed in the event of a violation.
Howard at ¶ 5. Despite the fact that consecutive, reserved prison terms appear to
have been “predetermined” in a sense at the original sentencing hearing, the Gallia App. Nos. 22CA11 and 23CA2 14
Supreme Court of Ohio in Howard found that the trial court had provided the
appellant with “proper notice at his original sentencing hearing of the specific
prison terms he could face if he were to violate his community-control conditions.”
Id. at ¶ 15. Further, the Court found no error with respect to the fact that the trial
court ultimately “imposed the exact prison terms that it had provided Howard
notice of at his initial sentencing hearing.” Id. at ¶ 22. The Court found that even
though the exact prison terms were imposed, “the court performed more than an
administrative function at the revocation hearing and did not merely impose a
predetermined sentence.” Id. at ¶ 25, citing State v. Jackson, 150 Ohio St.3d 362,
2016-Ohio-8127, 81 N.E.3d 1237, ¶ 13.
{¶21} Here, it is also clear that the trial court performed more than an
administrative function of simply imposing predetermined consecutive sentences.
The hearing transcripts from the revocation hearing indicate that the trial court
engaged Drummond in conversation regarding its ability to impose consecutive
sentences, but it notified him that there were alternatives, such as extending
community control or imposing more restrictions. The court also ordered an
updated presentence investigation report and reminded Drummond prior to the
sentencing hearing that he needed “to continue to be compliant.” Unfortunately,
between the initial hearing when Drummond entered admissions to the violations Gallia App. Nos. 22CA11 and 23CA2 15
and the sentencing hearing, Drummond had positive drug screens for
methamphetamines on three separate dates.
{¶22} The Howard Court acknowledged that making consecutive sentence
findings at an original sentencing hearing while simultaneously imposing terms of
community control was inconsistent, but ultimately reasoned as follows:
[A] finding during the initial sentencing hearing that consecutive sentences were necessary to punish Howard or to protect the public from future crime would be inconsistent with the court's determination that a community-control sentence would not demean the seriousness of Howard's offenses. But even if the court had made the consecutive-sentences findings at Howard's initial sentencing hearing, R.C. 2929.14(C)(4) becomes relevant when “multiple prison terms are imposed.” (Emphasis added.)
Howard at ¶ 26-27.
Thus, although the Howard Court ultimately reversed the appellate decision and
remanded it, the only reason it did so was because the trial court only made two of
the three necessary consecutive sentence findings at the community control
revocation sentencing hearing. Id. at ¶ 27. The Court apparently found no harm
with the fact that there was consecutive sentencing language included at the
original sentencing stage when Howard was initially sentenced to community
control.
{¶23} Based upon the foregoing reasoning, we conclude that even though
the trial court appears to have promised Drummond that consecutive prison terms Gallia App. Nos. 22CA11 and 23CA2 16
would be imposed in the event of a community control violation and even though
the trial court made consecutive sentence findings at the time it originally
sentenced Drummond to community control, such errors were harmless as long as
the trial court made the necessary findings at the time it actually imposed
consecutive sentences for the community control violations, which it did. We find
no merit to Drummond’s argument that the trial court made incomplete
consecutive sentence findings at the revocation hearing and then added an
“awaiting-trial” finding to the revocation judgment entry.
{¶24} A review of the sentencing hearing transcript from the sentencing
hearing that took place after community control was revoked reveals that the trial
court made the necessary findings to support the imposition of consecutive
sentences. The trial court found that consecutive sentences were necessary to
protect the public from future crime and that they were not disproportionate to the
seriousness of the offender’s conduct. The trial court also found that “the
offender’s history of criminal conduct demonstrates a consecutive sentence is
necessary to protect the public from future crime.” Elsewhere during the hearing,
in discussing the seriousness and recidivism factors, the trial court found that
Drummond “was on bond in 20CR18 when he committed 20CR208.” In our view,
this finding is equivalent to finding that Drummond committed one of the offenses
while he was awaiting trial or sentencing. The trial court further found that Gallia App. Nos. 22CA11 and 23CA2 17
Drummond had served a prior prison term, had not responded favorably to
sanctions—hence the community control violations— and that he had
demonstrated “a pattern of substance abuse and a refusal to remain in treatment.”
{¶25} In light of the foregoing, we conclude that the trial court made the
necessary findings to impose consecutive sentences and that the findings were
made orally on the record during the sentencing hearing and then properly
incorporated into the sentencing entry. Further, we cannot clearly and
convincingly conclude that the findings were not supported by the record.
Moreover, we conclude that the record clearly and convincingly supports the
imposition of the aggregate sentence that was imposed, and we find that the
aggregate sentence is necessary, proportionate and arises from sufficiently
aggravated circumstances to overcome the statutory presumption for the imposition
of concurrent sentences.
{¶26} Again, Drummond primarily bases his argument that the consecutive
sentence findings were not supported by the record upon the premise that his
underlying conviction for failure to appear was invalid. However, his argument
challenging the validity of that conviction has been stricken from his appellate
brief. Thus, that conviction stands for purposes of this appeal. As set forth above,
and in light of the facts before us, we find no merit to Drummond’s argument that
the trial court’s consecutive sentences were not supported by the record. Gallia App. Nos. 22CA11 and 23CA2 18
Accordingly, we find no merit in any of the arguments raised under Drummond’s
second assignment of error and it is therefore overruled.
ASSIGNMENT OF ERROR III
{¶27} In his third assignment of error, Drummond contends that it is
unlawful to deny his appellate counsel a copy of his presentence investigation
report (hereinafter “PSI”) to investigate, research, and present issues for appeal.
He argues that his appellate counsel was entitled to obtain a copy of the PSI for
purposes of appeal under both R.C. 2951.03(D)(1) and R.C. 2953.08 and that
Gallia County’s policy allowing him to view the PSI in person, but denying him a
copy of the PSI, is contrary to law. He alternatively argues that if this Court rejects
his statutory claims that his appellate counsel is entitled to a copy of the PSI, that
the denial of his request for a copy of the PSI is unconstitutional under the Ohio
Equal Protection clause in that it creates a classification between defense counsel
and the trial court, probation officers, Ohio Department of Rehabilitations and
Corrections staff, law enforcement, and treatment providers, who are all entitled to
copies of the PSI under R.C. 2951.03(A)(2)-(3). He argues that such a
classification is “over-inclusive, irrational, and thereby unconstitutional.”
{¶28} The State responds by arguing that although defense counsel and
appellate counsel are entitled to review the PSI prior to sentencing and for
purposes of appeal, appellate counsel’s argument that he is entitled to a copy of the Gallia App. Nos. 22CA11 and 23CA2 19
PSI is not supported by the law. The State further directs our attention to the fact
that appellate counsel here was not denied access to the PSI and it also references
the fact that Gallia County’s practices and procedures governing counsel’s access
to the PSI were consistent with “state-wide practices and the Ohio Revised Code.”
The State further argues there was no constitutional error in Gallia County’s
handling of the matter.
{¶29} Drummond asserts that in order to inspect the PSI in person in Gallia
County, his counsel would have had to travel two and one-half hours each way,
resulting in a five hour round trip. He further asserts that Gallia County limits
appellate representation by appointed counsel to a total of 20 hours and that
making the trip to view the PSI in person would have taken up one-fourth of the
time allotted for his case. As a result, it appears that counsel elected not to devote
the time needed for travel and instead decided to forego review of the PSI when his
request for a copy was denied.
{¶30} PSIs are addressed in both Crim.R. 32.2 and R.C. 2951.03. Crim.R.
32.2 provides as follows:
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 Gallia App. Nos. 22CA11 and 23CA2 20
misdemeanor cases the court may order a presentence investigation before granting probation.
Likewise, R.C. 2951.03(A)(1) provides, in pertinent part, that “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.”
{¶31} R.C. 2951.03 permits access to these reports only in certain
circumstances. For example, R.C. 2951.03(B)(1) states that “the court, at a
reasonable time before imposing sentence, shall permit the defendant or the
defendant’s counsel to read the report.” R.C. 2951.03 further provides in section
(B)(2) as follows:
Prior 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.
{¶32} R.C. 2951.03(D)(1) addresses when a defendant and/or his counsel
may seek access to the PSI, the contents of which is “confidential information” and
“not a public record.” For example, R.C. 2951.03(D)(1) states as follows:
The court, an appellate court, authorized probation officers, investigators, and court personnel, the defendant, the defendant's counsel, the prosecutor who is handling the prosecution of the case against the defendant, and authorized personnel of an institution to which the defendant is committed may inspect, receive copies of, retain copies of, and use a Gallia App. Nos. 22CA11 and 23CA2 21
presentence investigation report or a written or oral summary of a presentence investigation 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.
However, R.C. 2951.03(D)(2) further provides that
Immediately following the imposition of sentence upon the defendant, the defendant or the defendant's counsel and the prosecutor shall return to the court all copies of a presentence investigation report and of any written summary of a presentence investigation report or part of a presentence investigation report that the court made available to the defendant or the defendant's counsel and to the prosecutor pursuant to this section.
{¶33} In 2014, the Supreme Court of Ohio agreed to address a certified
conflict on the question of “ ‘[w]hether, pursuant to R.C. 2951.03, newly-
appointed appellate counsel is entitled to obtain a copy of the defendant’s
presentence investigation report.’ ” State v. Johnson, 138 Ohio St.3d 282, 2014-
Ohio-770, 6 N.E.3d 38, ¶ 1 (hereinafter “Johnson”), quoting State v. Johnson, 135
Ohio St.3d 1411, 2013-Ohio-1622, 986 N.E.2d 28.1
{¶34} In accepting the case, the Court stated that “the issue is whether
appellate counsel who was not trial counsel may obtain a copy of the presentence
investigation report for purposes of representing Johnson on appeal.” Johnson at ¶
7. The Court first determined that the term “ ‘defendant’s counsel’ as used in R.C.
1 The Twelfth District certified the conflict between State v. Johnson, 12th Dist. Butler No. CA2011-11-212, 2014- Ohio-3776 and State v. Jordan, 4th Dist. Scioto No. 03CA2878, 2004-Ohio-2111. Gallia App. Nos. 22CA11 and 23CA2 22
2951.03(D)(1) [encompassed] both a defendant’s trial counsel and a defendant’s
appellate counsel.” Johnson at ¶ 2. The Court ultimately answered the certified
question in the affirmative, but only ordered on remand that the defendant’s
appellate counsel be provided “access to the report subject to similar restrictions as
contained in R.C. 2951.03 and 2953.08(F)(1) and any further directives of the
appellate court.” Id. at ¶ 2, 15. The Court’s full holding stated as follows:
Because of concerns for due process and the right to effective assistance of counsel on an appeal, and because the term “defendant's counsel” as used in R.C. 2951.03(D)(1) includes both a defendant's trial counsel and a defendant's appellate counsel, we answer the certified question in the affirmative and permit newly appointed appellate counsel to have access to a presentence investigation report upon a proper showing therefor, subject to similar restrictions as contained in R.C. 2951.03 and 2953.08(F)(1) and any further directives of the appellate court.
Id. at ¶ 14.
{¶35} Relying on Johnson, this Court recently determined in State v.
Jackson, 4th Dist. Gallia No. 22CA8, --Ohio--, that “[u]nder the relevant statutes
and Johnson, access to the PSI is very limited.” Jackson at ¶ 45. We further
determined that “Johnson permits appellate counsel to have access to a defendant’s
PSI, but does not permit unlimited access[]” and that “[t]his court may not enlarge
the Johnson holding.” Id. We ultimately held in Jackson “that R.C. 2951.03 does
not permit appellant to retain a copy of the presentence investigation report.” Id. Gallia App. Nos. 22CA11 and 23CA2 23
{¶36} Jackson was represented on appeal by the same counsel who
represents Drummond on appeal. Further, the arguments regarding appellate
counsel’s access to the PSI report in Jackson are identical to the arguments raised
sub judice and both cases originate from Gallia County. Thus, both involve the
same court’s practices and policies with respect to appellate counsel’s access to the
PSI report. As this Court expressed in Jackson, “we certainly understand and
appreciate appellate counsel’s frustration,” but “as an intermediate appellate court
we are obligated to follow Supreme Court of Ohio decisions.” Jackson at ¶ 45.
Accordingly, based upon the Supreme Court of Ohio’s holding in Johnson as well
as this Court’s recent reasoning in Jackson, the statutory claims raised in
Drummond’s third assignment of error are overruled.
{¶37} Further, with respect to Drummond’s alternative claims which assert
constitutional and equal protection violations, the Supreme Court of Ohio has
explained that
the question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court. See State v. Woodards (1966), 6 Ohio St.2d 14, 215 N.E.2d 568 [35 O.O.2d 8]. This rule applies both to appellant’s claim that the statute is unconstitutionally vague on its face and to his claim that the trial court interpreted the statute in such a way as to render the statute unconstitutionally vague. Both claims were apparent but yet not made at the trial court level.
State v. Awan, 22 Ohio St.3d 120, 122-123, 489 N.E.2d 277 (1986). Gallia App. Nos. 22CA11 and 23CA2 24
Because Drummond’s trial counsel was mandated to return the copy of the PSI at
trial and because R.C. 2951.03(D)(2) did not require other personnel/departments
who had a copy of the PSI to return it, this challenge could have been raised at
trial, but it was not. See State v. Stutes, 4th Dist. Gallia Nos. 22CA6, 22CA7,
2023-Ohio-4582, ¶ 45. Because Drummond’s constitutional challenge to R.C.
2951.03 could have been raised at the trial court level, but was not, we decline to
address it for the first time on appeal.
{¶38} Having stricken Drummond’s first assignment of error, and having
found no merit to Drummond’s second and third assignments of error, the
judgment of the trial court is affirmed.
JUDGMENT AFFIRMED. Gallia App. Nos. 22CA11 and 23CA2 25
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. 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 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 the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J., & Hess, J., Concur in Judgment and Opinion.
For the Court, _____________________________ Jason P. Smith Presiding 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.