[Cite as State v. Rea, 2013-Ohio-3972.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2012-A-0044 - vs - :
DONNA M. REA, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 CR 511.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
Gregory A. Price, 137 South Main, Suite 300, Akron, OH 44308 (For Defendant- Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Donna M. Rea, appeals from her conviction on one count of
illegal assembly or possession of chemicals for the manufacture of drugs (“illegal
assembly”), in violation of R.C. 2925.041(A), a felony of the third degree. The charges
stem from the purchase of 284 pseudoephedrine tablets between April 13, 2011 and
October 23, 2011, and alleges they were purchased to manufacture
methamphetamine. {¶2} On December 15, 2011, the Ashtabula County Grand Jury indicted
appellant on two counts of illegal assembly; one count of prohibition against purchasing
pseudoephedrine in violation of R.C. 2925.55, a misdemeanor of the first degree; and
one count of possessing drug abuse instruments in violation of R.C. 2925.12, a
misdemeanor of the second degree. On May 25, 2012, appellant changed her plea
from not guilty to guilty in exchange for the state dropping all counts except the first
count of illegal assembly. Appellant was sentenced her to a 36-month prison term.
{¶3} Appellant timely appealed and raises the following assignments of error
for our review:
{¶4} “[1.] The trial courts committed reversible error when they found that a
third degree felony carries a presumption of prison.
{¶5} “[2.] Appellant received ineffective assistance of counsel when her trial
counsel failed to correct the trial court’s conclusion that a third degree felony carries a
presumption of prison.”
{¶6} The arguments under appellant’s third assignment of error have been fully
discussed in our opinion in case number 2012-A-0043. Therefore, we will not repeat it
here. It is without merit as decided.
{¶7} Under her first assignment of error, appellant argues that the trial court’s
presumption that a third degree felony carries a presumption of prison is reversible
error. We disagree.
{¶8} In reviewing a felony sentence, appellate courts must apply a two-step
approach:
2 {¶9} “First, they must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the
trial court’s decision shall be reviewed under an abuse-of-discretion standard.” State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4.
{¶10} “The first prong of the analysis instructs that ‘the appellate court must
ensure that the trial court has adhered to all applicable rules and statutes in imposing
the sentence. As a purely legal question, this is subject to review only to determine
whether it is clearly and convincingly contrary to law, the standard found in R.C.
2953.08(G).’” State v. Stewart, 11th Dist. Lake No. 2008-L-112, 2009-Ohio-921, ¶11,
quoting Kalish at ¶14.
{¶11} “If a reviewing court is satisfied that the sentence is not clearly and
convincingly contrary to law under the first prong, the court must then engage in the
second prong of the analysis, which requires an appellate court to determine whether
the trial court abused its discretion in selecting a sentence within the permissible
statutory range.” Id. at ¶14, citing Kalish at ¶17.
{¶12} R.C. 2925.041(C)(1) states as follows:
{¶13} “(C) Whoever violates this section is guilty of illegal assembly or
possession of chemicals for the manufacture of drugs. Except as otherwise provided in
this division, illegal assembly or possession of chemicals for the manufacture of drugs
is a felony of the third degree, and, except as otherwise provided in division (C)(1) or
(2) of this section, division (C) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender. * * * If the violation of
3 division (A) of this section is a felony of the third degree under this division and if the
chemical or chemicals assembled or possessed in violation of division (A) of this
section may be used to manufacture methamphetamine, there either is a presumption
for a prison term for the offense or the court shall impose a mandatory prison term on
the offender, determined as follows:
{¶14} “(1) Except as otherwise provided in this division, there is a presumption
for a prison term for the offense. * * * (Emphasis added.)
{¶15} None of the otherwise provided portions of the statute triggering a
mandatory sentence are applicable.
{¶16} Accordingly, illegal assembly or possession of chemicals for the
manufacture of methamphetamine is a felony of the third degree carrying a
presumption of prison. The prison term for a third degree felony conviction is a range
between one and five years. R.C. 2929.14(A)(3). Based on the foregoing, under the
first prong of the Kalish test, appellant’s sentence cannot be found to be clearly and
convincingly contrary to law because there is a presumption of a prison term in the
range of one to five years for appellant’s offenses, and she was sentenced to three
years.
{¶17} Additionally, the trial court stated that it considered the record, oral
statements, any victim impact statements and pre-sentence investigation reports, as
well as the principles and purposes of sentencing under R.C. 2929.11. The trial court,
likewise, considered the statements made by trial counsel, appellant herself, and the
statement of the Assistant Prosecutor. Given that the court gave substantial and
careful thought to the relevant statutory considerations, we cannot say that the
4 imposition of appellant’s sentence constitutes an abuse of discretion under the second
prong of Kalish. Appellant’s first assignment of error is without merit.
{¶18} Under her second assignment of error, appellant maintains that trial
counsel’s performance was constitutionally deficient for failure to object to the trial
court’s conclusion that a third degree felony carries a presumption of prison. Again, we
disagree.
{¶19} Ohio has adopted the analysis set forth in Strickland v. Washington, 466
U.S. 668 (1984), for determining whether counsel’s performance was so defective as to
require reversal of a conviction. See State v. Bradley, 42 Ohio St.3d 136, paragraph
two of the syllabus (1989). In a claim of ineffective assistance of counsel, the two-
pronged Strickland test places the burden on the defendant to prove that counsel’s
performance was deficient, and that the deficient performance prejudiced the defense.
Strickland at 687.
{¶20} “To show that a defendant has been prejudiced by counsel’s deficient
performance, the defendant must prove that there exists a reasonable probability that,
were it not for counsel’s errors, the result of the trial would have been different.”
Bradley at paragraph three of the syllabus.
{¶21} Appellant alleges that trial counsel was ineffective for failing to object to
the trial court’s conclusion that there is a presumption for a prison sentence. Based on
our disposition of appellant’s first assignment of error, counsel was not ineffective for
failing to object as there is a presumption for a prison term. Accordingly, appellant has
failed to show that trial counsel’s performance was deficient. Appellant’s second
assignment of error is without merit.
5 {¶22} For the reasons stated in this opinion, it is the judgment of this court that
the judgment of the Ashtabula County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with Concurring/Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with Concurring/Dissenting Opinion.
{¶23} As stated in my concurring/dissenting opinion in Case. No. 2012-A-0043, I
take exception with the fact that this case, Case No. 2012-A-0044, did not merge below
with Case No. 2012-A-0043. I further take exception with the fact that this court did not
later consolidate these cases for purposes of briefing and disposition. The charges in
both cases include illegal assembly or possession of chemicals for the manufacture of
drugs, all felonies of the third degree, all in violation of R.C. 2925.041(A), and all
alleged to have been purchased to manufacture methamphetamine. Thus, based on
the foregoing and on the facts at issue, I believe both cases should have merged
and/or been consolidated.
{¶24} I concur with the majority with respect to appellant’s second assignment of
error regarding ineffective assistance of counsel. Under a plain error analysis, the
representation of appellant’s counsel did not fall below the standard expected of a
licensed attorney in Ohio. See State v. Bradley, 42 Ohio St.3d 136, paragraph two of
the syllabus (1989); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
6 {¶25} However, I respectfully dissent regarding appellant’s sentence under her
first assignment of error, as the majority improperly applies State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, and the abuse of discretion standard, rather than clear and
convincing, in light of H.B. 86. In any event, under either standard, the trial court
committed error as the record shows that appellant, a non-violent offender, was
amenable to treatment and the judge used the wrong standard in sentencing in placing
on the record that appellant’s sentence carried with it a presumption of prison.
{¶26} Prior to 2006, Ohio sentencing law created presumptions that offenders be
given minimum, concurrent terms of incarceration. See former R.C. 2929.14(B),
2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome if
the court made specific factual findings regarding the nature of the offense and the
need to protect the public. This judicial fact-finding was later called into question by
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.
296 (2004), where the United States Supreme Court held that judicial fact-finding could
infringe upon a defendant’s Sixth Amendment right to a jury trial because it invaded the
fact-finding function of the jury.
{¶27} In 2006, the Ohio Supreme Court held that under Apprendi and Blakely,
Ohio’s sentencing statutes that required a judge to make factual findings in order to
increase a sentence beyond presumptive minimum or concurrent terms
unconstitutionally infringed on the jury’s function in violation of the Sixth Amendment.
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. As a result, the Court severed those
sections and held that courts have full discretion to sentence within the applicable
statutory range and to order sentences to be served consecutively. Id at ¶99-100.
7 {¶28} In applying Foster, the Ohio Supreme Court later held in 2008 that
appellate courts must apply a two-step procedure for review of a felony sentence.
Kalish, supra. In the first step, the Kalish Court held that appellate courts shall
examine the sentencing court’s compliance with “all applicable rules and statutes in
imposing the sentence” to determine whether the sentence is clearly and convincingly
contrary to law, the standard found in R.C. 2953.08(G). Id. at ¶26. If this first step is
satisfied, the Court held that the trial court’s decision shall be reviewed under an
abuse-of-discretion standard. Id.
{¶29} This writer notes that Kalish, an appeal from this court, State v. Kalish,
11th Dist. Lake No. 2006-L-093, 2007-Ohio-3850 (O’Toole, J., concurring in part,
dissenting in part) is a plurality opinion. Therefore, it is merely persuasive. See State
v. Azbill, 11th Dist. Lake No. 2007-L-092, 2008-Ohio-6875, citing State v. Bassett, 8th
Dist. Cuyahoga No. 90887, 2008-Ohio-5597, ¶24, fn.2. Although the plurality in Kalish
indicated that this court did not review the sentence to ensure that the trial court clearly
and convincingly complied with the pertinent laws, it nevertheless affirmed this court’s
judgment, albeit on different grounds.
{¶30} Thereafter, in 2009, the reasoning in Foster was partially called into
question by Oregon v. Ice, 555 U.S. 160 (2009), where the United States Supreme
Court held that a state could require judicial findings of fact to impose consecutive
rather than concurrent sentences without infringing on a defendant’s Sixth Amendment
rights. In 2010, the Ohio Supreme Court subsequently determined that Foster
remained valid after Ice and the judiciary was not required to make findings of fact prior
to imposing maximum or consecutive sentences in State v. Hodge, 128 Ohio St.3d 1,
8 2010-Ohio-6320. However, a trial court was still required to consider the sentencing
purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. See Foster,
supra, at ¶36-42.
{¶31} On September 30, 2011, Ohio’s sentencing statutes were revised
pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different,
requirement of judicial fact-finding under H.B. 86, containing many amendments to
criminal sentencing provisions. For example, H.B. 86 revived the language provided in
former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4), requiring a trial court to
make specific findings when imposing consecutive sentences. In addition, H.B. 86
reduced the maximum prison term for many third-degree felonies from five years to 36
months. As a result, we no longer apply the two-step analysis contained in the 2008
Kalish case to defendants sentenced after H.B. 86’s enactment. Rather, we apply R.C.
2953.08(G) and the clear and convincing standard to determine whether the sentence
is contrary to law. See e.g. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-
1891, ¶10; State v. Drobny, 8th Dist. Cuyahoga No. 98404, 2013-Ohio-937, ¶5, fn.2;
State v. Kinstle, 3rd Dist. Allen No. 1-11-45, 2012-Ohio-5952, ¶47; State v. Cochran,
10th Dist. Franklin No. 11AP-408, 2012-Ohio-5899, ¶52.
{¶32} In reviewing a felony sentence, R.C. 2953.08(G) provides:
{¶33} “(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
{¶34} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
9 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:
{¶35} “(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;
{¶36} “(b) That the sentence is otherwise contrary to law.”
{¶37} The Eighth District recently stated in Venes, supra, at ¶20-21:
{¶38} “It is important to understand that the ‘clear and convincing’ standard
applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it
clear that ‘(t)he appellate court’s standard for review is not whether the sentencing
court abused its discretion.’ As a practical consideration, this means that appellate
courts are prohibited from substituting their judgment for that of the trial judge.
{¶39} “It is also important to understand that the clear and convincing standard
used by R.C. 2953.08(G)(2) is written in the negative. It 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.”
{¶40} Although trial courts have full discretion to impose any term of
imprisonment within the statutory range, they must consider the sentencing purposes in
R.C. 2929.11 and the guidelines contained in R.C. 2929.12.
10 {¶41} H.B. 86 amended R.C. 2929.11, which now states:
{¶42} “(A) A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of felony
sentencing are to protect the public from future crime by the offender and others and to
punish the offender using the minimum sanctions that the court determines accomplish
those purposes without imposing an unnecessary burden on state or local government
resources. To achieve those purposes, the sentencing court shall consider the need
for incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the
public, or both.”
{¶43} “However, there is still no ‘mandate’ for the sentencing court to engage in
any factual findings under R.C. 2929.11 or R.C. 2929.12.” State v. Jones, 12th Dist.
No. Butler CA2012-03-049, 2013-Ohio-150, ¶49, citing State v. Rose, 12th Dist. No.
Butler CA2011-11-214, 2012-Ohio-5607, ¶78; State v. Putnam, 11th Dist. Lake No.
2012-L-026, 2012-Ohio-4891, ¶9. “Rather, the trial court still has discretion to
determine whether the sentence satisfies the overriding purpose of Ohio’s sentencing
structure.” Jones at ¶49; See R.C. 2929.12 (which provides a nonexhaustive list of
factors a trial court must consider when determining the seriousness of the offense and
the likelihood that the offender will commit future offenses.)
{¶44} In this case, appellant was sentenced after H.B. 86 was enacted. Thus,
H.B. 86 applies here. Therefore, this court should review the trial court’s sentence
under H.B. 86 to determine if it is clearly and convincingly contrary to law. See Venes,
11 supra, at ¶10; Kinstle, supra, at ¶47; Cochran, supra, at ¶52. Thus, in light of H.B. 86, I
believe my colleagues improperly apply Kalish, an outdated plurality opinion.
{¶45} In light of R.C. 2929.11, in both cases at bar, the trial courts improperly
presumed that appellant needed to be placed in prison per the presumption, clearly an
erroneous application of law and contrary to its stated intent as there was no legislative
presumption. The courts then placed the burden on appellant to disprove or overcome
the presumption so that she may be placed in the available bed at the treatment facility.
Thus, this writer believes the trial courts applied the wrong law and, under the
majority’s viewpoint, abused their discretion, see e.g. State v. Ferranto, 112 Ohio St.
667, 676-678 (1925), because there is no compelling argument or reason in the record
that appellant was not amenable to treatment. In fact, pursuant to the Recommended
Case Plan, treatment was recommended and a bed was available. In addition, not only
did the trial courts abuse their discretion, they also failed to follow the mandate under
H.B. 86.
{¶46} “[I]n determining whether to impose a prison term as a sanction for a
felony of the third degree or a felony drug offense that is a violation of a provision of
Chapter 2925 of the Revised Code * * * the sentencing court shall comply with the
purposes and principles of sentencing under section 2929.11 of the Revised Code and
with section 2929.12 of the Revised Code.” R.C. 2929.13(C). As stated, “The
overriding purposes of felony sentencing are to protect the public from future crime by
the offender and others and to punish the offender using the minimum sanctions that
the court determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources.” R.C. 2929.11(A). A presumption of
12 prison does not appear until the trial court addresses sentencing for first or second
degree felonies. See R.C. 2929.13(D).
{¶47} The statute’s objective and intent is to keep dangerous criminals off the
street, while balancing Ohio’s financial deficits and an already overcrowded prison
system. The cost of not merging sentences and sentencing someone, like appellant, to
a longer sentence has a significant effect on our prison system and to the pocketbooks
of taxpayers and is contrary to the purposes espoused in H.B. 86. R.C. 2929.11.
Ohio’s prison population has ballooned in the past decade and it currently costs over
$23,000 per year to house an inmate in Ohio. The legislature has given us the tools,
as well as a mandate, to address these issues in passing H.B. 86.
{¶48} In the instant matter, the Recommended Case Plan listed appellant’s
“criminal history” and “level of need” as being “low.” It was recommended that she
“would benefit from placement in the NEOCAP facility followed by intensive supervision
with the Adult Probation Department.” Although rehabilitation was recommended and a
facility was available to treat appellant, the courts below failed to follow the “principles
and purposes” of R.C. 2929.11, which, as stated, now provides under H.B. 86 that:
“[t]he overriding purposes of felony sentencing are to protect the public from future
crime by the offender and others and to punish the offender using the minimum
sanctions that the court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources.” R.C. 2929.11(A).
(Emphasis added.)
13 {¶49} The very essence of H.B. 86 centers around the fact that treatment should
be available and given to low level offenders in a case such as this. The record is clear
and the evidence is unrebutted as to the disposition required.
{¶50} For the foregoing reasons, I concur in part and dissent in part.