[Cite as State v. Lee, 2016-Ohio-41.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case Nos. 26621 and 26622 Plaintiff-Appellee : : Trial Court Case Nos. 2014-CR-2466 v. : and 2014-CR-3179 : ALLYSHA G. LEE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 8th day of December , 2016.
MATHIAS H. HECK, JR., by CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
CHARLYN BOHLAND, Atty. Reg. No. 0088080, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Allysha Lee appeals from her conviction and sentence -2-
for Harrassment by an Inmate and Assault on a Local Corrections Officer. She argues
that the trial court erred in sentencing because the terms of her community control
sanctions are not reasonably related to the statutory purposes of sentencing. She further
argues that trial counsel was ineffective for failing to object to the terms of the sanctions.
{¶ 2} We conclude that the terms in the community control sanctions to which Lee
takes exception are reasonably related to the purpose of sentencing. Consequently, the
trial court did not err by imposing those sanctions, and trial counsel was not ineffective
for having failed to object to them. Accordingly, the judgment of the trial court is Affirmed.
I. Background of the Offenses
{¶ 3} In March 2014, Lee was committed to the Department of Youth Services
following an adjudication that she committed an act that, had she been an adult, would
have constituted a sexual offense. She was placed in a juvenile detention facility, and
was enrolled in a sex offender program.
{¶ 4} On July 16, 2014, police were dispatched to the facility upon a report of
harassment. It was determined that Lee had attempted to harm herself, and staff had
been required to restrain Lee in order to forcibly remove a metal screw from her mouth.
Once the screw was removed, Lee spit blood upon the hand of one of the employees.
{¶ 5} On September 11, 2014, police were again dispatched to the facility. It was
determined again that Lee had threatened to harm herself, and that she tried to bite her
own wrist. Staff intervened, during which time Lee bit one staff member on the leg, and
scratched another staff member on the arm. -3-
II. The Course of Proceedings
{¶ 6} Lee, who was eighteen at the time of the offenses, was indicted in case
number 2014 CR 2466 on one count of Harassment by an Inmate (Bodily Substances),
in violation of R.C. 2921.38(A). Thereafter, in case number 2014-CR-3179, she was
indicted on two counts of Assault (Local Corrections Officer) in violation of R.C.
2903.13(A) and (C)(2)(b). She pled guilty to all charges.
{¶ 7} At the sentencing hearing the trial court sentenced Lee to community control
sanctions for a period not to exceed five years. The termination entry sets forth the
following sanctions:
1. Defendant’s compliance with the General Conditions of this court for
probationers;
2. A term of intensive probation supervision with a sex offender specialist
for a period not to exceed five (5) years;
3. A requirement that the offender receive mental health counseling and/or
treatment in a community health agency or through private insurance;
4. A requirement that the offender obtains and maintains verifiable
employment or attend school on a full time basis and provide verification
of enrollment and attendance;
5. A requirement that the offender have no association with anyone under
18 (not to apply to time served in DYS);
6. A requirement that the offender verifies all medications and takes all
medications as prescribed; -4-
7. A requirement that the offender abides by any and all conditions ordered
by [the Juvenile Court] (including sex offender treatment and sex
treatment and sex offender sanctions/conditions);
8. A requirement that the offender sign necessary releases of information;
9. A requirement that the offender not be in any building, structure, room,
vehicle or place when you know or have reasonable cause to know that
illegal drugs, stolen property or any firearms are present;
10. A requirement that the offender be placed on “No Breaks” status.
{¶ 8} Lee appealed in both cases. Her appeals are consolidated for review.
III. Because There Is Evidence in the Record that Lee’s Offenses Were
Committed as Part of a Plan to Gain Access to Child Sex Offense Victims,
the Terms of her Community Control Sanctions Relating to Sex Offense
Treatment and Monitoring Are Not an Abuse of Discretion
{¶ 9} Lee asserts the following two assignments of error:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ORDERED COMMUNITY CONTROL SANCTIONS THAT WERE NOT
RELATED TO LEE’S CONVICTION, IN VIOLATION OF R.C. 2929.15.
LEE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, AS
GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE U.S. CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO
CONSTITUTION. -5-
{¶ 10} Lee contends that the trial court abused its discretion in ordering community
control sanctions that are not related to her conviction. Specifically, she objects to the
requirement that she undergo probation supervision by a sex offender specialist, and that
she abide by the terms of the juvenile court regarding sex offender treatment, sanctions,
and conditions. Lee further contends that she was deprived of the effective assistance
of counsel because her attorney failed to object to those sanctions.
{¶ 11} This court has held that when deciding what conditions should accompany
a community control sanction, courts must consider how to achieve, in the unique
circumstances of the case, the purposes and principles of sentencing, which are to protect
the public, to punish the offender, and to impose sanctions that are designed for
rehabilitation, with a goal to changing the defendant’s behavior. State v. Bowser, 186
Ohio App. 3d 162, 2010-Ohio-951, 926 N.E. 2d 714, ¶ 12-13. (2d Dist.). Other appellate
courts have established factors to consider when imposing community control sanctions,
including whether the condition imposed, “(1) is reasonably related to rehabilitating the
offender, (2) has some relationship to the crime of which the offender was convicted, and
(3) relates to conduct which is criminal or reasonably related to future criminality and
serves the statutory ends of probation.” State v. Oates, 2013-Ohio-2609, 993 N.E. 2d 846
(3d Dist.); State v. Fuller, 2015-Ohio-523, 27 N.E. 3d 574 (8th Dist.).
{¶ 12} Pursuant to R.C. 2929.17 and R.C. 2929.18, the trial court has a broad
range of discretion to determine appropriate sanctions that are related to rehabilitation.
The trial court is not confined to the evidence that relates solely to the offense for which
the defendant is convicted. Bowser, supra, at ¶ 15. The trial court may consider the
pre-sentence investigation report, as well as “mere allegations of crimes for which the -6-
offender is never prosecuted.” Id. at ¶ 15. “Generally, abuse of discretion occurs when
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[Cite as State v. Lee, 2016-Ohio-41.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case Nos. 26621 and 26622 Plaintiff-Appellee : : Trial Court Case Nos. 2014-CR-2466 v. : and 2014-CR-3179 : ALLYSHA G. LEE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 8th day of December , 2016.
MATHIAS H. HECK, JR., by CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
CHARLYN BOHLAND, Atty. Reg. No. 0088080, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Allysha Lee appeals from her conviction and sentence -2-
for Harrassment by an Inmate and Assault on a Local Corrections Officer. She argues
that the trial court erred in sentencing because the terms of her community control
sanctions are not reasonably related to the statutory purposes of sentencing. She further
argues that trial counsel was ineffective for failing to object to the terms of the sanctions.
{¶ 2} We conclude that the terms in the community control sanctions to which Lee
takes exception are reasonably related to the purpose of sentencing. Consequently, the
trial court did not err by imposing those sanctions, and trial counsel was not ineffective
for having failed to object to them. Accordingly, the judgment of the trial court is Affirmed.
I. Background of the Offenses
{¶ 3} In March 2014, Lee was committed to the Department of Youth Services
following an adjudication that she committed an act that, had she been an adult, would
have constituted a sexual offense. She was placed in a juvenile detention facility, and
was enrolled in a sex offender program.
{¶ 4} On July 16, 2014, police were dispatched to the facility upon a report of
harassment. It was determined that Lee had attempted to harm herself, and staff had
been required to restrain Lee in order to forcibly remove a metal screw from her mouth.
Once the screw was removed, Lee spit blood upon the hand of one of the employees.
{¶ 5} On September 11, 2014, police were again dispatched to the facility. It was
determined again that Lee had threatened to harm herself, and that she tried to bite her
own wrist. Staff intervened, during which time Lee bit one staff member on the leg, and
scratched another staff member on the arm. -3-
II. The Course of Proceedings
{¶ 6} Lee, who was eighteen at the time of the offenses, was indicted in case
number 2014 CR 2466 on one count of Harassment by an Inmate (Bodily Substances),
in violation of R.C. 2921.38(A). Thereafter, in case number 2014-CR-3179, she was
indicted on two counts of Assault (Local Corrections Officer) in violation of R.C.
2903.13(A) and (C)(2)(b). She pled guilty to all charges.
{¶ 7} At the sentencing hearing the trial court sentenced Lee to community control
sanctions for a period not to exceed five years. The termination entry sets forth the
following sanctions:
1. Defendant’s compliance with the General Conditions of this court for
probationers;
2. A term of intensive probation supervision with a sex offender specialist
for a period not to exceed five (5) years;
3. A requirement that the offender receive mental health counseling and/or
treatment in a community health agency or through private insurance;
4. A requirement that the offender obtains and maintains verifiable
employment or attend school on a full time basis and provide verification
of enrollment and attendance;
5. A requirement that the offender have no association with anyone under
18 (not to apply to time served in DYS);
6. A requirement that the offender verifies all medications and takes all
medications as prescribed; -4-
7. A requirement that the offender abides by any and all conditions ordered
by [the Juvenile Court] (including sex offender treatment and sex
treatment and sex offender sanctions/conditions);
8. A requirement that the offender sign necessary releases of information;
9. A requirement that the offender not be in any building, structure, room,
vehicle or place when you know or have reasonable cause to know that
illegal drugs, stolen property or any firearms are present;
10. A requirement that the offender be placed on “No Breaks” status.
{¶ 8} Lee appealed in both cases. Her appeals are consolidated for review.
III. Because There Is Evidence in the Record that Lee’s Offenses Were
Committed as Part of a Plan to Gain Access to Child Sex Offense Victims,
the Terms of her Community Control Sanctions Relating to Sex Offense
Treatment and Monitoring Are Not an Abuse of Discretion
{¶ 9} Lee asserts the following two assignments of error:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ORDERED COMMUNITY CONTROL SANCTIONS THAT WERE NOT
RELATED TO LEE’S CONVICTION, IN VIOLATION OF R.C. 2929.15.
LEE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, AS
GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE U.S. CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO
CONSTITUTION. -5-
{¶ 10} Lee contends that the trial court abused its discretion in ordering community
control sanctions that are not related to her conviction. Specifically, she objects to the
requirement that she undergo probation supervision by a sex offender specialist, and that
she abide by the terms of the juvenile court regarding sex offender treatment, sanctions,
and conditions. Lee further contends that she was deprived of the effective assistance
of counsel because her attorney failed to object to those sanctions.
{¶ 11} This court has held that when deciding what conditions should accompany
a community control sanction, courts must consider how to achieve, in the unique
circumstances of the case, the purposes and principles of sentencing, which are to protect
the public, to punish the offender, and to impose sanctions that are designed for
rehabilitation, with a goal to changing the defendant’s behavior. State v. Bowser, 186
Ohio App. 3d 162, 2010-Ohio-951, 926 N.E. 2d 714, ¶ 12-13. (2d Dist.). Other appellate
courts have established factors to consider when imposing community control sanctions,
including whether the condition imposed, “(1) is reasonably related to rehabilitating the
offender, (2) has some relationship to the crime of which the offender was convicted, and
(3) relates to conduct which is criminal or reasonably related to future criminality and
serves the statutory ends of probation.” State v. Oates, 2013-Ohio-2609, 993 N.E. 2d 846
(3d Dist.); State v. Fuller, 2015-Ohio-523, 27 N.E. 3d 574 (8th Dist.).
{¶ 12} Pursuant to R.C. 2929.17 and R.C. 2929.18, the trial court has a broad
range of discretion to determine appropriate sanctions that are related to rehabilitation.
The trial court is not confined to the evidence that relates solely to the offense for which
the defendant is convicted. Bowser, supra, at ¶ 15. The trial court may consider the
pre-sentence investigation report, as well as “mere allegations of crimes for which the -6-
offender is never prosecuted.” Id. at ¶ 15. “Generally, abuse of discretion occurs when
a decision is grossly unsound, unreasonable, illegal or unsupported by the evidence.”
State v. Nichols, 195 Ohio App. 3d 323, 2011-Ohio-4671, 959 N.E. 2d 1082, ¶ 16
(2d Dist.). A decision is unreasonable if there is no sound reasoning process that would
support that decision. State v. Jones, 2d Dist. Montgomery No. 25315 & 25316, 2013-
Ohio-1925, ¶ 32.
{¶ 13} In this case, the State admits that the offenses of which Lee was convicted
do not constitute sex offenses, and that there is no evidence that those offenses were
sexual in nature. However, there is a connection between the offenses and the
sanctions imposed. The presentence investigation report contains information that Lee
committed the offenses while attempting to harm herself. According to the staff at the
juvenile facility, Lee’s attempts at self-harm were made with the goal to be sent to a
hospital where she could be around children, in violation of court orders. The staff
information indicates that Lee attempts these type of self-harm incidents on a regular
basis in an attempt to manipulate the system in order to gain access to children she could
victimize. Furthermore, the PSI report indicates that Lee admitted to her peers that she
has committed sex offenses against children. The PSI report indicates that Lee’s mother
is concerned about her daughter being around children. The PSI indicates that Lee has
been the victim of numerous sexual offenses, and that she has been diagnosed with
Pedophilia Disorder.
{¶ 14} Given that Lee was in a juvenile facility due to a sexual offense, and that
she admitted to victimizing other children, it is reasonable that part of her rehabilitation
plan should include sexual offender treatment. Furthermore, we conclude that this -7-
record contains evidence indicating that the offenses that are the subject of this appeal
were committed as part of a plan to gain access to children in order to sexually victimize
them. Therefore, we conclude that the trial court could reasonably find that the
underlying facts of these offenses indicate that they were committed while attempting to
commit sexual misconduct.
{¶ 15} We find that the trial court’s decision to impose the contested conditions
was reasonable – they appear to be designed to address Lee’s criminal behavior and to
rehabilitate her. We find no abuse of discretion.
{¶ 16} We further conclude, given our finding that the trial court did not abuse its
discretion in this regard, that trial counsel was not ineffective for failing to object to the
contested provisions.
{¶ 17} Both of Lee’s assignments of error are overruled.
IV. Conclusion
{¶ 18} Both of Lee’s assignments of error having been overruled, the judgment of
the trial court is Affirmed.
HALL, J., and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck Christina E. Mahy Charlyn Bohland Hon. Richard Skelton for Hon. Frances E. McGee