State v. Stickney

2023 Ohio 1914

• Court: Ohio Court of Appeals
• Decided: June 9, 2023
• Docket: 2022-CA-20
• Status: Published

Opinion

[Cite as State v. Stickney, 2023-Ohio-1914.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2022-CA-20 : v. : Trial Court Case Nos. 2022 CR 082; : 2022 CR 199 ALLYSSA ANN STICKNEY : : (Criminal Appeal from Common Pleas Appellant : Court) :

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OPINION

Rendered on June 9, 2023

SAMANTHA B. WHETHERHOLT, Attorney for Appellee

COLIN P. COCHRAN, Attorney for Appellant

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WELBAUM, P.J.

{¶ 1} Appellant, Allyssa Ann Stickney, appeals from her judgment of conviction in

in the Champaign County Court of Common Pleas after she pled guilty to multiple counts

of endangering children and possession of drugs. Specifically, Stickney claims that the

trial court erred by imposing consecutive prison sentences for her offenses. For the -2-

reasons outlined below, we disagree with Stickney’s claim and will affirm the judgments

of the trial court.

Facts and Course of Proceedings

{¶ 2} On May 2, 2022, a Champaign County grand jury returned an indictment in

Champaign C.P. No. 2022 CR 082 charging Stickney with one second-degree-felony

count of aggravated possession of drugs (Clonazolam) and three first-degree-

misdemeanor counts of endangering children. Stickney pled not guilty to the indicted

charges and was released on a personal recognizance bond. The conditions of

Stickney’s bond required her to be a law-abiding citizen; not to obtain, possess, or use

illegal drugs; and to submit to court-supplied urine screens.

{¶ 3} On August 8, 2022, Stickney attended a final pretrial conference and

submitted to a urine screen that showed she tested positive for cocaine. After testing

positive for cocaine, Stickney admitted to violating her bond. The trial court thereafter

found Stickney guilty of the admitted bond violation, continued her bond, and advised her

that the bond violation would be considered at sentencing if she were convicted.

{¶ 4} At the same final pretrial conference, Stickney and the State advised the trial

court that they had reached a plea agreement whereby Stickney would plead guilty to one

count of endangering children and to an amended third-degree-felony count of

aggravated possession of drugs. In exchange, the State agreed to dismiss the

remaining charges against Stickney. The State also agreed to recommend that the trial

court impose community control sanctions on the condition that Stickney’s presentence -3-

investigation (“PSI”) did not reveal any additional criminal history that was unknown to the

State and as along as Stickney did not violate her bond or get charged with any additional

offense(s) before sentencing. After being advised of the plea agreement, the trial court

conducted a plea colloquy and accepted Stickney’s guilty plea to aggravated possession

of drugs and endangering children. The trial court also ordered a PSI and scheduled a

sentencing hearing, which was continued to September 23, 2022.

{¶ 5} Three days before Stickney’s sentencing hearing, the State filed a notice of

bond violation claiming that Stickney had tested positive for cannabinoid, amphetamines,

and cocaine on August 31, 2022. The State alleged in the notice that the drug use in

question was discovered after police officers responded to Stickney’s residence on the

report of a break-in. The State also alleged that the officers reported that when they had

arrived at Stickney’s residence, Stickney had been screaming and claiming that someone

inside the walls of her residence was trying to molest her children; the police took Stickney

to the hospital due to her altered mental state, and the medical records from that visit

established that Stickney’s urine had tested positive for the aforementioned drugs. In

addition to filing a notice of bond violation for this incident, the State filed a bill of

information in Champaign C.P. No. 2022 CR 199 charging Stickney with one fifth-degree-

felony count of possession of cocaine and two first-degree-misdemeanor counts of

endangering children.

{¶ 6} On September 23, 2022, Stickney appeared at court and admitted to the

alleged bond violation. Thereafter, the trial court found Stickney guilty of the bond

violation and once again advised her that the violation would be considered at sentencing. -4-

The trial court also reminded the parties that the State was no longer bound to its

recommendation of community control sanctions in Case No. 2022 CR 082.

{¶ 7} At the same hearing, Stickney waived her right to an indictment in Case No.

2022 CR 199 and pled guilty to all three counts set forth in the bill of information. In

exchange for Stickney’s guilty pleas, the State agreed to recommend that Stickney’s

sentence be served concurrently with the sentence imposed in Case No. 2022 CR 082.

After Stickney entered her guilty plea in Case No. 2022 CR 199, the trial court sentenced

her for both cases.

{¶ 8} For Case No. 2022 CR 082, the trial court imposed a 24-month prison term

for aggravated possession of drugs and a concurrent six-month jail term for endangering

children, for an aggregate term of 24 months in prison. For Case No. 2022 CR 199, the

trial court imposed a 12-month prison term for possession of cocaine and concurrent six-

month jail terms for each of the two endangering children counts, for an aggregate term

of 12 months in prison. The trial court thereafter ordered that the 12-month prison term

in Case No. 2022 CR 199 be served consecutively to the 24-month prison term in Case

No. 2022 CR 082, for a total aggregate term of 36 months in prison.

{¶ 9} Stickney now appeals, challenging her 36-month prison sentence.

Assignment of Error

{¶ 10} Under her sole assignment of error, Stickney contends that the trial court

erred by imposing consecutive prison sentences. Specifically, Stickney claims that the

trial court’s order for her to serve her 12-month prison term in Case No. 2022 CR 199

consecutively to her 24-month prison term in Case No. 2022 CR 082 was contrary to law -5-

because the required consecutive-sentence findings made by the trial court under R.C.

2929.14(C)(4) were unsupported by the record. We disagree.

{¶ 11} When reviewing felony sentences, appellate courts must apply the standard

of review set forth in R.C. 2953.08(G). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may increase, reduce,

or modify a sentence, or it may vacate the sentence and remand for resentencing, only if

it clearly and convincingly finds either: (1) the record does not support the sentencing

court’s findings under certain enumerated statutes (including R.C. 2929.14(C)(4), which

concerns the imposition of consecutive sentences); or (2) the sentence is otherwise

contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).

{¶ 12} Under R.C. 2929.14(C)(4), a trial court may impose consecutive sentences

if it finds that: (1) consecutive service is 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) one or more of the following three findings are satisfied:

(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 -6-

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.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 13} “[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Therefore, “[t]he first

step in consecutive-sentence review is to ensure that the consecutive-sentence findings

under R.C. 2929.14(C)(4) have been made[.]” State v. Gwynne, Ohio Slip Opinion No.

2022-Ohio-4607, __ N.E.3d __, ¶ 25. “If the trial court fails to make these findings, and

that issue is properly raised on appeal, then [we] must hold that the order of consecutive

sentences is contrary to law and either modify the sentence or vacate it and remand the

case for resentencing.” Id.

{¶ 14} If the R.C. 2929.14(C)(4) consecutive-sentence findings have been made,

we must then determine whether the record clearly and convincingly supports those

findings. Id. at ¶ 26. Our review of the record and findings is de novo with the ultimate

inquiry being whether we clearly and convincingly find that the evidence in the record

does not support the consecutive-sentence findings that the trial court made. Id. at ¶ 27. -7-

“When reviewing the record under the clear-and-convincing standard, the first core

requirement is that there be some evidentiary support in the record for the consecutive-

sentence findings that the trial court made.” Id. at ¶ 28. “If after reviewing the applicable

aspects of the record and what, if any, evidence it contains, [we find] that there is no

evidence in the record to support the consecutive sentence findings, then [we] must

reverse the order of consecutive sentences.” Id.

{¶ 15} “The second requirement is that whatever evidentiary basis there is, that it

be adequate to fully support the trial court’s consecutive-sentence findings.” Id. at ¶ 29.

Accordingly, this court must “focus on both the quantity and quality of the evidence in the

record that either supports or contradicts the consecutive-sentence findings.” Id. This

court “may not, for example, presume that because the record contains some evidence

relevant to and not inconsistent with the consecutive-sentence findings, that this evidence

is enough to fully support the findings.” Id. “R.C. 2953.08(G)(2) explicitly rejects this

type of deference to a trial court’s consecutive-sentence findings.” Id. Instead, this

court is “authorized to substitute its judgment for the trial court’s judgment if [we have] a

firm conviction or belief, after reviewing the entire record, that the evidence does not

support the specific findings made by the trial court to impose consecutive sentences,

which includes the number of consecutive terms and the aggregate sentence that results.”

Id.

{¶ 16} In this case, Stickney does not dispute that the trial court made all the

required consecutive-sentence findings under R.C. 2929.14(C)(4) and incorporated those

findings into the judgment entry. Stickney instead claims that the imposition of -8-

consecutive sentences is contrary to law because two of the trial court’s three

consecutive-sentence findings were unsupported by the record. Specifically, Stickney

takes issue with the trial court’s finding: (1) consecutive service is necessary to protect

the public from future crime or to punish the offender; and (2) consecutive sentences are

not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public. Because there is no dispute that Stickney committed the

offenses in Case No. 2022 CR 199 while she was awaiting sentencing in Case No. 2022

CR 082, Stickney does not challenge the trial court’s third finding, i.e., that she committed

one or more of the multiple offenses while she was awaiting trial or sentencing.

{¶ 17} We will first address the trial court’s finding that consecutive sentences were

not disproportionate to the seriousness of Stickney’s conduct and the danger she posed

to the public. The PSI established that Stickney’s charges for aggravated possession of

drugs and endangering children in Case No. 2022 CR 082 stemmed from the police being

called to Stickney’s residence on June 17, 2021, after Stickney’s stepmother found

Stickney sitting on her back porch unconscious. When an officer arrived at the scene,

Stickney regained consciousness after the officer violently shook the chair in which she

was sitting. After regaining consciousness, Stickney reported to the officer that she had

consumed “a lot” of alcohol and took “a little” Xanax, for which she had no prescription.

PSI, p. 3. The record also indicated that Stickney had access to a baggie of pills that

contained 93 whole tablets and 10 partial tablets of Xanax, i.e., Clonazolam.

{¶ 18} The PSI established that, at the time of the June 17th incident, Stickney

lived with her three children, who were only two years old, 16 months old, and eight weeks -9-

old. The PSI also established that Stickney’s neighbor reported taking Stickney’s

children to her apartment and calling Stickney’s stepmother for help on the day in question

because Stickney was trying leave her residence with the children and almost dropped

the 8-week-old baby on the cement.

{¶ 19} After Stickney was indicted and placed on bond for the June 17th incident,

Stickney tested positive for cocaine immediately prior to her pretrial conference on August

8, 2022, and admitted to violating her bond. Despite that infraction, the trial court

continued Stickney’s bond, which Stickney violated again on August 31, 2022. The

August 31st bond violation stemmed from police discovering Stickney in a drug-induced

state while responding to the report of a break-in at her residence. The police narrative

indicated that when the officers arrived at Stickney’s residence, they observed Stickney

screaming and saying that someone was coming through her walls and ceilings and

molesting her children. The officers also observed blood throughout Stickney’s

residence, on Stickney’s hands, and on Stickney’s children. When asked about the

blood, Stickney advised the officers that it was her blood and she later advised medics

that she had hurt her hand “stabbing the wall, where people were coming in.” State’s

Exhibits 1 and 2. The record also indicated that Stickney refused treatment from the

medics, became agitated, and continued screaming and seeing individuals who were not

present; 19 pills were found on the floor in Stickney’s residence, and the pills had marks

on them as if they had been chewed.

{¶ 20} The officers reported that they transported Stickney to Urbana Mercy

Hospital due to her altered mental state and that they later obtained a warrant for her -10-

medical records there. The medical records indicated that on the day of the incident,

Stickney’s urine tested positive for cannabinoid, amphetamines, and cocaine. A few

weeks after that incident, Stickney admitted to law enforcement that she had used

cocaine on August 31st and claimed that the cocaine had contained a drug that she did

not normally use, i.e., methamphetamine. Stickney was thereafter charged in Case No.

2022 CR 199 for possession of cocaine and endangering children.

{¶ 21} Based on the foregoing information, we cannot say that the trial court’s

finding that consecutive sentences were not disproportionate to the seriousness of

Stickney’s conduct and the danger she posed to the public was clearly and convincingly

unsupported by the record. Stickney’s conduct was severe because she continued to

engage in the illegal use of drugs around her children even after she was indicted for that

conduct and placed on bond. Stickney’s conduct was also severe because her use of

illegal drugs put her three young children at risk of physical harm on multiple occasions.

In Case No. 2022 CR 082, Stickney almost dropped her 8-week-old baby and later lost

consciousness while she was supposed to be caring for her children. In Case No. 2022

CR 199, Stickney became so hysterical that she dangerously wielded a knife around her

children and left pills lying around for her children to access and possibly chew.

Stickney’s conduct was especially concerning because all of her children were at ages

where they relied on her for everything.

{¶ 22} At the sentencing hearing, Stickney’s stepmother reported that, as a result

of the aforementioned incidents, Stickney’s children have ongoing night terrors, scream

about monsters, and become frightened when they are left in a room by themselves. -11-

Therefore, Stickney’s conduct was also severe because it had caused her children to

suffer mental and emotional harm. For all the foregoing reasons, we find that the severity

of Stickney’s conduct and the danger she posed to the public, which included her children,

was on par with the consecutive sentences imposed by the trial court.

{¶ 23} We now turn to the trial court’s finding that consecutive service was

necessary to protect the public from future crime or to punish Stickney. Upon review, we

cannot say that this finding was clearly and convincingly unsupported by the record either;

after initially being indicted for possessing drugs and endangering her children, Stickney

engaged in the same type of conduct again and violated her bond twice due to drug use.

This demonstrated a pattern of drug abuse that suggested the likelihood of future offenses

from which the public needed protection.

{¶ 24} In addition, Stickney had a history of not taking her mental health and

substance abuse treatment seriously. At the sentencing hearing, Stickney expressed a

desire to follow through with her mental health and substance abuse treatment and

reported that, in the last two weeks, she had obtained a psychiatrist, entered

rehabilitation, and begun intensive outpatient treatment and group meetings. However,

before those two weeks, Stickney had been deceptive with a treatment provider and had

not been getting some of her medication refilled. Specifically, the PSI indicated that

Stickney was not forthcoming about the extent of her drug use when she was first

evaluated at TCN Behavioral Health. In addition, when Stickney pled guilty to the

charges in Case No. 2022 CR 199, she advised the trial court that she was no longer

taking Wellbutrin for her depression and anxiety because she had not gone back to the -12-

doctor to get her prescription refilled. When the trial court asked Stickney why she did

not go back to the doctor, Stickney responded “at the time it wasn’t really important to

me.” Tr. (Sept. 7, 2022), p. 13.

{¶ 25} The PSI also indicated that Stickney had not completed the “Substance

Use” chart in the PSI packet and had downplayed her history of substance use during her

PSI examination. When the PSI examiner asked Stickney about her history of substance

use, Stickney claimed that she had tried Xanax only once and denied using any other

substances. The PSI examiner, however, reported that Stickney thereafter let it slip that

she had also smoked marijuana when she was 13 years old. When the PSI examiner

asked Stickney about her testing positive for cocaine on August 8, 2022, Stickney blamed

her ex-boyfriend for the positive test result and declined to say anything further on the

matter.

{¶ 26} The PSI also indicated that Stickney was not truthful during the PSI

examination when she told the PSI examiner that she had never received any substance

abuse treatment. Stickney’s stepmother had advised officers that Stickney’s drug

problem “ha[d] been an ongoing battle” and that Stickney “ha[d] been through rehab 5

times.” PSI, p. 4. Stickney’s stepmother also advised officers that the last time Stickney

had been in rehab “she just talked her way through it.” Id.

{¶ 27} The facts that Stickney had not been forthcoming with the PSI examiner

and the treatment provider at TCN about her drug use and that Stickney had violated her

bond twice due to drug use suggested that Stickney did not take her substance abuse

issues seriously and would likely reoffend. Although Stickney’s decision to start mental -13-

health and substance abuse treatment a few weeks before sentencing was a step in the

right direction, it did not outweigh all the factors suggesting that she had a high likelihood

of reoffending. Therefore, for all the foregoing reasons, we cannot say that the trial

court’s finding that consecutive service was necessary to protect the public from future

crime or to punish Stickney was clearly and convincingly unsupported by the record.

{¶ 28} After reviewing the entire record de novo and weighing the quality and

quantity of the evidence, we do not clearly and convincingly find that the evidence in the

record did not support the consecutive-sentence findings at issue. Indeed, there was

ample evidentiary support for the trial court to find that consecutive service was necessary

to protect the public from future crime or to punish Stickney, and that consecutive

sentences were not disproportionate to the seriousness of Stickney’s conduct and to the

danger she posed to the public. Accordingly, the trial court’s decision to impose

consecutive sentences was not contrary to law.

{¶ 29} Stickney’s sole assignment of error is overruled.

Conclusion

{¶ 30} Having overruled Stickney’s assignment of error, the judgments of the trial

court are affirmed.

TUCKER, J. and EPLEY, J., concur. -14-