State v. Pitts

2024 Ohio 987

Opinion

[Cite as State v. Pitts, 2024-Ohio-987.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : Case Nos. CT2023-0050 : CT2023-0043 MARCUS A. PITTS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0130

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

DATE OF JUDGMENT ENTRY: March 15, 2024

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RONALD L. WELCH CHRIS BRIGDON MUSKINGUM CO. PROSECUTOR 8138 Somerset Road JOHN CONNOR DEVER Thornville, OH 43076 27 North Fifth St., P.O. Box 189 Zanesville, OH 43702 [Cite as State v. Pitts, 2024-Ohio-987.]

Delaney, P.J.

{¶1} Appellant Marcus A. Pitts appeals from the May 1, 2023 Entry of the

Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

{¶2} The instant appeal is consolidated from two case numbers: 5th District

Morgan Nos. CT2023-0050 and CT2023-0043.

FACTS AND PROCEDURAL HISTORY

{¶3} The following facts are adduced from appellee’s statement at the change-

of-plea and sentencing hearing on April 27, 2023.

{¶4} The Zanesville Police Department received numerous complaints about

drug trafficking at an address on Luck Avenue. Sgt. Wilhite made contact with a

confidential informant (C.I.) who provided information about drug trafficking on three

dates. On February 6, police effectuated a traffic stop and found narcotics determined to

have come from the Luck Avenue address.

{¶5} On February 14, 2023, Probation Officer Matt Cook of the Morgan County

Common Pleas Court went to the Luck Avenue address. Appellant was Cook’s

probationer and on judicial release arising from a felonious assault case in Morgan

County. As a condition of his release, appellant and his residence were subject to search

at any time by members of the Morgan County Court of Common Pleas Probation

Department.

{¶6} When Cook arrived, there were numerous people in the backyard of the

residence. Appellant arrived and they went inside. Cook began his search in appellant’s

bedroom, which contained a small refrigerator. In the freezer compartment, Cook found [Cite as State v. Pitts, 2024-Ohio-987.]

a makeup bag containing a large amount of U.S. currency and Suboxone strips. Cook

stated he does not have a prescription for Suboxone.

{¶7} Cook continued to search and found a black nylon cinch bag on the floor.

As he started to open it, appellant became very nervous and attempted to back out of the

room. Inside the bag was a gallon-sized Ziploc bag containing a crystalline substance

that appeared to be methamphetamine.

{¶8} Appellant was detained. Cook contacted the Zanesville Police Department

and a search warrant was sought and obtained. Upon execution of the search warrant,

police found $2,478 in U.S. currency in the makeup bag.

{¶9} In the bedroom, police found a purse on the bed containing the Ohio I.D. of

Tiffany Bagley, along with numerous documents in the names of Tiffany Bagley,

appellant, and Timothy Bagley. On top of a shoe rack was an orange and white leather

backpack containing two semi-automatic handguns with loaded magazines and a large

amount of crystal substance residue throughout the bag.

{¶10} In the basement was a kitchen-style island shelf with a bathroom vanity

mirror. On the mirror were writings identified by police as indicators of Real Riders gang

activity. The kitchen island was obviously being used to break down large quantities pf

methamphetamine and prepare them for distribution because there was crystal residue

all over the top of the island.

{¶11} Two sets of digital scales were inside the kitchen vanity. One set had a

plastic drinking cup containing a small amount of crystal substance. The other set of

scales had a metal bowl with residue. Also in the kitchen were a large amount of crystal

residue as well as gallon zip-style plastic bags containing crystal residue. [Cite as State v. Pitts, 2024-Ohio-987.]

{¶12} On the front of the island was a box of plastic sandwich bags. The bags

were the same brand and style as the bag containing the substance found in appellant’s

bedroom. There were numerous vinyl gloves in the same area, along with a Taco Bell

nametag stating “Tiffany, Assistant Manager.”

{¶13} Found in the trash between the washer and dryer was packaging that, in

the detective’s experience, appeared to be “kilo pound level packaging” typically found in

large-scale distribution of methamphetamine. T. 18.

{¶14} The substance was collected and weighed, yielding more than 300 grams

of methamphetamine.

{¶15} Appellant was charged by indictment with one count of aggravated drug

trafficking pursuant to R.C. 2925.03(A)(2) and (C)(1)(f), a felony of the first degree [Count

I]; one count of aggravated drug possession pursuant to R.C. 2925.11(A) and (C)(1)(c),

a felony of the first degree [Count II]; and two counts of having weapons while under

disability pursuant to R.C. 2923.13(A)(2) and (B), felonies of the third degree [Counts III

and IV]. Count I was accompanied by a major drug offender specification (“M.D.O.”)

pursuant to R.C. 2941.1410(A) and a specification for forfeiture of money in a drug case

pursuant to R.C. 2941.1417(A). Count II is accompanied by a firearm specification

pursuant to R.C. 2941.141(A) and a M.D.O. specification pursuant to R.C. 2941.1410(A).

Counts III and IV are accompanied by firearm specifications pursuant to R.C.

2941.141(A).

{¶16} Appellant entered pleas of not guilty.

{¶17} On April 27, 2023, appellant came before the trial court and changed his

pleas of not guilty to ones of guilty to Counts II and III, both as amended. The guilty plea [Cite as State v. Pitts, 2024-Ohio-987.]

to Count II includes the M.D.O. specification but not the firearm specification. In exchange

for the guilty pleas, appellee agreed to dismiss Counts I, IV, and the firearm

specifications.1 Appellant agreed to forfeit the firearms seized in the investigation.

Appellee agreed to make no sentencing recommendation at the change-of-plea hearing,

but both parties reserved the right to argue for the sentence they felt was appropriate at

sentencing.

{¶18} The trial court accepted appellant’s guilty pleas and found him guilty.

Appellant waived preparation of a pre-sentence investigation and asked to be sentenced

immediately.

{¶19} The trial court inquired about appellant’s criminal history and was told that

he was presently on judicial release for a felonious assault in Morgan County. In addition

to that offense, appellant had prior convictions for possession of methamphetamine and

heroin; domestic violence; multiple thefts; and multiple convictions for violation of a

protection order.

{¶20} The trial court imposed a stated mandatory minimum prison term of 11

years, a mandatory fine of $10,000, and an indefinite prison term of 16½ years upon

Count II, and a stated prison term of 36 months upon Count III. The sentencing Entry of

the trial court dated May 1, 2023 states the following regarding consecutive sentences:

* * * *.

Provided however the terms of incarceration imposed herein

shall be served mandatory consecutive to one another for an

1 No mention is made of the cash forfeiture specification which accompanied Count I in the indictment. [Cite as State v. Pitts, 2024-Ohio-987.]

aggregate prison term of a minimum fourteen (14) years of which

eleven (11) years are mandatory to a maximum indefinite nineteen

and one half (19½) years. Should Morgan County Common Pleas

Court terminate Judicial Release and reimpose the balance of

the sentence in case number 16CR0031, the sentence imposed

herein shall be served consecutively. (Emphasis added).

{¶21} Appellant now appeals from the trial court’s May 1, 2023 Entry of conviction

and sentence.

{¶22} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶23} “I. DID THE TRIAL COURT ERR WHEN SENTENCING THE APPELLANT

TO THE MAXIMUM ALLOWABLE UNDER R.C. 2901.05, IN CONTRAVENTION OF

STATUTE[?]”

{¶24} “II. WAS THE CONSECUTIVE SENTENCE ASSOCIATED WITH

MUSKINGUM COUNTY CASE ORDERED TO RUN CONSECUTIVE WITH ANY

FUTURE SENTENCE IMPOSED BY MORGAN COUNTY UNLAWFUL [sic

throughout][?]”

ANALYSIS

I., II.

{¶25} Appellant’s two assignments of error are related and will be considered

together. He challenges the trial court’s sentence, alleging the record does not support [Cite as State v. Pitts, 2024-Ohio-987.]

the maximum sentence and the trial court was not authorized to impose a sentence

consecutive to a prospective future prison term imposed by a different court.

{¶26} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to

review the entire trial court record, including any oral or written statements and

presentence investigation reports. R.C. 2953.08(F)(1) through (4). We review felony

sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. R.C. 2953.08(G)(2) provides we

may either increase, reduce, modify, or vacate a sentence and remand for resentencing

where we clearly and convincingly find that either the record does not support the

sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or

2929.20(I), or the sentence is otherwise contrary to law. See, also, State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28.

Maximum sentence

{¶27} A trial court's imposition of a maximum prison term for a felony conviction is

not contrary to law if the sentence is within the statutory range for the offense, and the

court considers both the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. State v.

Carbaugh, 5th Dist. No. CT2022-0050, 2023-Ohio-1269, 213 N.E.3d 180, ¶ 26, internal

citations omitted. “[N]either R.C. 2929.11 nor 2929.12 require [the] court to make any

specific factual findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649, ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,

951 N.E.2d 381, ¶ 31, and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

{¶28} In State v. Bryant, the Court clarified, [Cite as State v. Pitts, 2024-Ohio-987.]

The narrow holding in Jones [163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649] is that R.C. 2953.08(G)(2) does not allow 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. See Jones at ¶ 31, 39. Nothing about that holding should

be construed as prohibiting appellate review of a sentence when the

claim is that the sentence was improperly imposed based on

impermissible considerations—i.e., considerations that fall outside

those that are contained in R.C. 2929.11 and 2929.12. Indeed, in

Jones, this court made clear that R.C. 2953.08(G)(2)(b) permits

appellate courts to reverse or modify sentencing decisions that are

“‘otherwise contrary to law.’” Jones at ¶ 32, quoting R.C.

2953.08(G)(2)(b). This court also recognized that “otherwise contrary

to law” means “‘in violation of statute or legal regulations at a given

time.’” Id. at ¶ 34 quoting Black's Law Dictionary 328 (6th Ed.1990).

Accordingly, when a trial court imposes a sentence based on factors

or considerations that are extraneous to those that are permitted by

R.C. 2929.11 and 2929.12, that sentence is contrary to law. Claims

that raise these types of issues are therefore reviewable.

State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198

N.E.3d 68, ¶ 22.

{¶29} In the instant case, on the record at the sentencing hearing, the trial court

stated, “Based upon the facts and circumstances of this case, your record, aggravated [Cite as State v. Pitts, 2024-Ohio-987.]

possession of drugs, methamphetamine, I’m imposing the minimum prison term of 11

years and the indefinite maximum of 16½ with the mandatory fine of $10,000. And prison

term is mandatory.” T. 28.

{¶30} Appellant waived preparation of a P.S.I. He committed the instant offenses

while on judicial release from a felonious assault conviction in Morgan County and his

criminal history includes numerous felony convictions, including possession of

methamphetamine and heroin. When the trial court asked appellant if he wanted to make

a statement, appellant replied that “this was a young man’s game” and when he got out

of prison he would be in his fifties. T. 23-24. He also claimed he could not find a legitimate

job as a convicted felon. The trial court told appellant this excuse was silly and that he

poisoned the community with his drug trafficking operation. The trial court asked appellant

why he had firearms, and appellant admitted because drug dealers get robbed. T. 26.

Appellant told the trial court he served 18 months out of three years on his Morgan County

conviction. The trial court expressed disbelief that appellant, apparently a bright

individual, chose to engage in drug sales while on judicial release, and described the facts

of the case as “striking.” T. 27-28.

{¶31} Appellant argues generally that the instant case does not represent the

worst form of the offenses charged and that the trial court didn’t address whether he was

likely to commit future crimes. We can easily discern from the record, though, that the

trial court considered the sentencing factors in R.C. 2929.11 and R.C. 2929.12. More

importantly, appellant fails to point to any factors or considerations extraneous to those

permitted by R.C. 2929.11 and 2929.12, that would establish the sentence is contrary to

law. [Cite as State v. Pitts, 2024-Ohio-987.]

{¶32} We conclude that the trial court did not commit error when it sentenced

appellant to the maximum sentences. Upon review, we find that the trial court's

sentencing on the charges complies with applicable rules and sentencing statutes. While

appellant may disagree with the weight given to these factors by the trial judge, his

sentence was within the applicable statutory range and therefore, we have no basis for

concluding that it is contrary to law. Appellant has not demonstrated that the trial court

imposed the sentence based on impermissible considerations—i.e., considerations that

fall outside those that are contained in R.C. 2929.11 and 2929.12. Carbaugh, supra,

2023-Ohio-1269, 213 N.E.3d 180, ¶ 29 (5th Dist.).

{¶33} Appellant’s first assignment of error is overruled.

Consecutive to future Morgan County prison term

{¶34} In his second assignment of error, appellant argues the trial court was not

authorized to order his sentence to be served consecutive to any future sentence imposed

by the Morgan County Court of Common Pleas, and we agree.

{¶35} R.C. 2929.14(C)(4) addresses consecutive sentences and provides:

(4) If multiple prison terms are imposed on an offender for

convictions of multiple offenses, the court may require the offender

to serve the prison terms consecutively if the court finds that the

consecutive service is necessary to protect the public from future

crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and

to the danger the offender poses to the public, and if the court also

finds any of the following: [Cite as State v. Pitts, 2024-Ohio-987.]

(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.

{¶36} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no obligation to

state reasons to support its findings, nor must it recite certain talismanic words or phrases

in order to be considered to have complied. State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, syllabus.

{¶37} In the instant case, there is no dispute that the trial court made the required

findings to impose consecutive sentences relating to Counts II, III, and the M.D.O.

specification. [Cite as State v. Pitts, 2024-Ohio-987.]

{¶38} Appellant argues, though, and appellee concedes, no authority permits the

trial court to order the sentence to be served consecutively with any prospective prison

term re-imposed by Morgan County in the felonious assault case for which appellant was

on judicial release. Appellee points out the trial court may have attempted to sentence

appellant pursuant to R.C. 2929.14(C)(1)(e), but that section applies only to offenses

involving fentanyl-related compounds.

{¶39} Because there is no authority for the trial court to order the instant sentence

to be served consecutively with a future potential term imposed by the Morgan County

Court of Common Pleas, we sustain appellant’s second assignment of error, vacate only

the portion of the sentence referring to Morgan County, and remand for resentencing.

CONCLUSION

{¶40} The judgment of the Muskingum County Court of Common Pleas is affirmed

in part, reversed in part, and remanded for resentencing in accord with this opinion.

By: Delaney, P.J.,

Gwin, J. and

Wise, J., concur.