[Cite as State v. Ohler, 2022-Ohio-4066.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
STATE OF OHIO, CASE NO. 3-22-23 PLAINTIFF-APPELLEE,
v.
WENDY OHLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court Trial Court No. 22-CR-0026
Judgment Affirmed
Date of Decision: November 14, 2022
APPEARANCES:
Edwin M. Bibler for Appellant
Daniel J. Stanley for Appellee Case No. 3-22-23
WILLAMOWSKI, J.
{¶1} Defendant-appellant Wendy Ohler (“Ohler”) brings this appeal from
the judgment of the Common Pleas Court of Crawford County convicting her of one
count of aggravated possession of drugs and sentencing her to nine months in prison.
Ohler claims on appeal that 1) her plea was not knowingly, intelligently, and
voluntarily made and 2) the trial court should have imposed community control.
For the reasons set forth below, the judgment of the trial court is affirmed.
{¶2} On January 18, 2022, the Crawford County Grand Jury indicted Ohler
on one count of aggravated possession of drugs in violation of R.C. 2925.11(A),
(C)(1)(a), a felony of the fifth degree. Doc. 1. Ohler entered a plea of not guilty.
Doc. 5. Ohler was released from custody on the condition that she not possess or
use any drug of abuse and that she enter into drug treatment. Doc. 4. Later, the
terms of bond were altered to include weekly drug testing. Doc. 13. On April 6,
2022, Ohler changed her plea to guilty. Doc. 15. The trial court accepted the guilty
plea and entered a finding of guilt. Doc. 15. On April 11, 2022, the State filed a
motion to revoke Ohler’s bond on the grounds that she had been discharged from
her treatment program for abusing her medications and breaking her behavior
contract. Doc. 16. The trial court then revoked her bond. Doc. 17.
{¶3} On April 14, 2022, the trial court granted bond for a second time to
Ohler. Doc. 20. The new bond terms included weekly drug screens and required
Ohler to enter treatment at Day One. Doc. 20. On May 4, 2022, the State filed
-2- Case No. 3-22-23
another motion to revoke Ohler’s bond after she was terminated from her treatment
program for testing positive for methamphetamines. Doc. 21. The motion indicated
that Ohler had admitted to smoking methamphetamine at the treatment facility.
Doc. 21.
{¶4} The trial court held a sentencing hearing on May 11, 2022. Doc. 22.
At that time, the trial court sentenced Ohler to nine months in prison. Doc. 22.
Ohler appeals from this judgment and raises the following assignments of error on
appeal.
First Assignment of Error
[Ohler’s] plea was not made knowingly, intelligently, or voluntarily.
Second Assignment of Error
The trial court erred by sentencing [Ohler] to nine (9) months in prison when [Ohler] was amenable to community control sanctions and was seeking treatment for drug addiction.
Guilty Plea
{¶5} Ohler claims in her first assignment of error that her guilty plea was not
knowingly, intelligently, or voluntarily entered. “All guilty pleas must be made
knowingly, voluntarily, and intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-
14-17 and 4-14-18, 2015-Ohio-926, ¶ 9.
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
-3- Case No. 3-22-23
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
Crim.R. 11(C)(2). “In addition to these constitutional rights, the trial court must
determine that the defendant understands the nature of the charge, the maximum
penalty involved, and the effect of the plea.” State v. Montgomery, 148 Ohio St.3d
347, 2016-Ohio-5487, ¶ 41, 71 N.E.3d 180.
{¶6} Ohler argues that her plea was not knowingly, intelligently, or
voluntarily given because she entered her plea with the understanding that she
would have 60-90 days to complete treatment before being sentenced and she was
sentenced 35 days after entering her plea of guilty. At the change of plea hearing,
the following dialogue occurred.
The Court: * * * It looks like the parties have agreed to a plea agreement. It’s a little tricky. The parties are basically gonna [sic] agree to open sentencing. However, we’re gonna [sic] set this
-4- Case No. 3-22-23
for a sentencing date 60, 90 days down the road. The State is has [sic] basically indicated to the defense that assuming that the Defendant complies with all treatment, and has no positive drug screens, that they would then at that sentencing argue – not argue – recommend community control. In any event, that there’s a positive drug screen, any other type of bond violation, which would include missing court, or the Defendant is not completing her counseling, the State would have the right then to recommend whatever sentence they believe that’s appropriate, and that can include a prison sentence up to 12 months. Is that correct, counsel?
Ms. Higgins: That’s correct.
The Court: Is that your understancing?
Mr. Motter: Yes, Your Honor. For the record, Your Honor, my client has been involved with the Lighthouse Behavioral Health Solutions since March of this year. Her program is expected to go through March of 2023. And the program seems to be fairly strict in that they will not let her out without an employee or a healthcare worker with her during the time.
The Court: All right. Well, I think the plan here is that basically the State, I think, was planning on recommending prison in this case. But they will give the Defendant a chance to basically prove to the State that she’s doing well –
Mr. Motter: yes, sir.
The Court: -- and then obviously after her plea, if it is a community control violation, I think everybody understands that, you know, continued negative drug screens and continued treatment will be required.
So, Miss Ohler, do you understand what the agreement is here?
The Defendant: I do.
The Court: Basically it’s an open sentencing. As of now, the State – there’s no recommendation. But the State is verbally saying on
-5- Case No. 3-22-23
the record, has agreed now to put it on the record, that as long as you don’t test positive for drugs, obey all conditions of bond, make sure that you continue with your counseling, that they will recommend community control for you. And then at that day we’d address all the terms and conditions of community control.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Ohler, 2022-Ohio-4066.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
STATE OF OHIO, CASE NO. 3-22-23 PLAINTIFF-APPELLEE,
v.
WENDY OHLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court Trial Court No. 22-CR-0026
Judgment Affirmed
Date of Decision: November 14, 2022
APPEARANCES:
Edwin M. Bibler for Appellant
Daniel J. Stanley for Appellee Case No. 3-22-23
WILLAMOWSKI, J.
{¶1} Defendant-appellant Wendy Ohler (“Ohler”) brings this appeal from
the judgment of the Common Pleas Court of Crawford County convicting her of one
count of aggravated possession of drugs and sentencing her to nine months in prison.
Ohler claims on appeal that 1) her plea was not knowingly, intelligently, and
voluntarily made and 2) the trial court should have imposed community control.
For the reasons set forth below, the judgment of the trial court is affirmed.
{¶2} On January 18, 2022, the Crawford County Grand Jury indicted Ohler
on one count of aggravated possession of drugs in violation of R.C. 2925.11(A),
(C)(1)(a), a felony of the fifth degree. Doc. 1. Ohler entered a plea of not guilty.
Doc. 5. Ohler was released from custody on the condition that she not possess or
use any drug of abuse and that she enter into drug treatment. Doc. 4. Later, the
terms of bond were altered to include weekly drug testing. Doc. 13. On April 6,
2022, Ohler changed her plea to guilty. Doc. 15. The trial court accepted the guilty
plea and entered a finding of guilt. Doc. 15. On April 11, 2022, the State filed a
motion to revoke Ohler’s bond on the grounds that she had been discharged from
her treatment program for abusing her medications and breaking her behavior
contract. Doc. 16. The trial court then revoked her bond. Doc. 17.
{¶3} On April 14, 2022, the trial court granted bond for a second time to
Ohler. Doc. 20. The new bond terms included weekly drug screens and required
Ohler to enter treatment at Day One. Doc. 20. On May 4, 2022, the State filed
-2- Case No. 3-22-23
another motion to revoke Ohler’s bond after she was terminated from her treatment
program for testing positive for methamphetamines. Doc. 21. The motion indicated
that Ohler had admitted to smoking methamphetamine at the treatment facility.
Doc. 21.
{¶4} The trial court held a sentencing hearing on May 11, 2022. Doc. 22.
At that time, the trial court sentenced Ohler to nine months in prison. Doc. 22.
Ohler appeals from this judgment and raises the following assignments of error on
appeal.
First Assignment of Error
[Ohler’s] plea was not made knowingly, intelligently, or voluntarily.
Second Assignment of Error
The trial court erred by sentencing [Ohler] to nine (9) months in prison when [Ohler] was amenable to community control sanctions and was seeking treatment for drug addiction.
Guilty Plea
{¶5} Ohler claims in her first assignment of error that her guilty plea was not
knowingly, intelligently, or voluntarily entered. “All guilty pleas must be made
knowingly, voluntarily, and intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-
14-17 and 4-14-18, 2015-Ohio-926, ¶ 9.
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
-3- Case No. 3-22-23
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
Crim.R. 11(C)(2). “In addition to these constitutional rights, the trial court must
determine that the defendant understands the nature of the charge, the maximum
penalty involved, and the effect of the plea.” State v. Montgomery, 148 Ohio St.3d
347, 2016-Ohio-5487, ¶ 41, 71 N.E.3d 180.
{¶6} Ohler argues that her plea was not knowingly, intelligently, or
voluntarily given because she entered her plea with the understanding that she
would have 60-90 days to complete treatment before being sentenced and she was
sentenced 35 days after entering her plea of guilty. At the change of plea hearing,
the following dialogue occurred.
The Court: * * * It looks like the parties have agreed to a plea agreement. It’s a little tricky. The parties are basically gonna [sic] agree to open sentencing. However, we’re gonna [sic] set this
-4- Case No. 3-22-23
for a sentencing date 60, 90 days down the road. The State is has [sic] basically indicated to the defense that assuming that the Defendant complies with all treatment, and has no positive drug screens, that they would then at that sentencing argue – not argue – recommend community control. In any event, that there’s a positive drug screen, any other type of bond violation, which would include missing court, or the Defendant is not completing her counseling, the State would have the right then to recommend whatever sentence they believe that’s appropriate, and that can include a prison sentence up to 12 months. Is that correct, counsel?
Ms. Higgins: That’s correct.
The Court: Is that your understancing?
Mr. Motter: Yes, Your Honor. For the record, Your Honor, my client has been involved with the Lighthouse Behavioral Health Solutions since March of this year. Her program is expected to go through March of 2023. And the program seems to be fairly strict in that they will not let her out without an employee or a healthcare worker with her during the time.
The Court: All right. Well, I think the plan here is that basically the State, I think, was planning on recommending prison in this case. But they will give the Defendant a chance to basically prove to the State that she’s doing well –
Mr. Motter: yes, sir.
The Court: -- and then obviously after her plea, if it is a community control violation, I think everybody understands that, you know, continued negative drug screens and continued treatment will be required.
So, Miss Ohler, do you understand what the agreement is here?
The Defendant: I do.
The Court: Basically it’s an open sentencing. As of now, the State – there’s no recommendation. But the State is verbally saying on
-5- Case No. 3-22-23
the record, has agreed now to put it on the record, that as long as you don’t test positive for drugs, obey all conditions of bond, make sure that you continue with your counseling, that they will recommend community control for you. And then at that day we’d address all the terms and conditions of community control. Now, in the event that you would violate your bond in any way, test positive for a drug screen, or stop doing counseling, the State would be free to recommend a prison sentence from 6 to 12 months. Do you understand that?
The Defendant: Yes, sir.
Tr. 3-5. The trial court made it very clear that if she tested positive for drugs or
violated any other term of her bond, the State would ask for prison time. Ohler
stated that she understood the terms of the plea agreement. Ohler violated the terms
of her bond five days later. Ohler was then given a second chance to comply at a
new program. Twenty days after that, she had violated the terms of her bond and
admitted to using drugs while in the treatment facility. Ohler knew at the time she
entered her plea what the consequences would be if she violated the terms of the
agreement. She told the court she understood what was required of her and was
given multiple chances to succeed. Thus, she cannot now claim that she did not
know what would happen if she violated the agreement or that the State did not give
her the time to complete the treatment. Based upon Ohler’s own statements in
response to the trial court’s questions, the plea was knowingly, intelligently, and
voluntarily entered. The first assignment of error is overruled.
-6- Case No. 3-22-23
Sentence
{¶7} Ohler claims in her second assignment of error that the trial court erred
by sentencing her to prison rather than community control. Ohler argues that based
upon R.C. 2929.11 and 2929.12, community control was the appropriate sentence.
Our standard of review in this matter is whether the sentence was clearly and
convincingly contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, ¶ 10, 59 N.E.3d 1231 and R.C. 2953.08(G)(2). The Supreme Court of Ohio
has further limited the review of the sentence imposed by an appellate court by
holding that R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court
to modify or vacate a sentence based on its view that the sentence is not supported
by the record under R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, ¶ 39, 169 N.E.3d 649. A trial court has full discretion to impose
any sentence within the statutory range. State v. Johnson, 3d Dist. Allen No. 1-20-
49, 2021-Ohio-1768, 173 N.E.3d 94. When reviewing felony sentences that are
imposed solely after applying R.C. 2929.11 and R.C. 2929.12, this Court shall no
longer analyze whether those sentences are unsupported by the record. Our task is
simply to determine whether those sentences are contrary to law. State v. Criswell,
3d Dist. Marion No. 9-21-40, 2022-Ohio-2450, ¶ 13.
{¶8} This Court has no authority under R.C. 2953.08(G)(2) to reverse the
sentence on the grounds that the record does not support the trial court’s application
of R.C. 2929.11 and 2929.12. The trial court considered the statutory factors set
-7- Case No. 3-22-23
forth in R.C. 2929.12 and considered the overriding purposes of felony sentencing
set forth in R.C. 2929.11. The sentence imposed was within the statutory range of
sentences. Thus, the sentence imposed was not contrary to law. The second
assignment of error is overruled.
{¶9} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Common Pleas Court of Crawford County
is affirmed.
MILLER and SHAW, J.J., concur.
/hls
-8-