State v. Wood

2021 Ohio 3759

Opinion

[Cite as State v. Wood, 2021-Ohio-3759.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-23 : v. : Trial Court Case Nos. 2020-CR-661 : STACEY WOOD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 22nd day of October, 2021.

IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

CARL J. BRYAN, Atty. Reg. No. 0086838, 120 West Second Street, #603, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Stacey Wood, appeals from her conviction in the Clark

County Court of Common Pleas after pleading guilty to aggravated possession of drugs.

In support of her appeal, Wood claims that her sentence should be vacated because the

trial court abused its discretion by permitting the State to address alleged factual

inaccuracies in the presentence investigation (“PSI”) report at the sentencing hearing and

by denying her an opportunity to rebut the State’s comments. For the reasons outlined

below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On November 30, 2020, a Clark County grand jury returned an indictment

charging Wood with one count of aggravated possession of drugs in violation of R.C.

2925.11(A), a felony of the third degree; and one count of possession of a fentanyl related

compound in violation of R.C. 2925.11(A), a felony of the fifth degree. The charges

arose after officers searched Wood’s purse during a traffic stop and found drug

paraphernalia, 3.69 grams of methamphetamine, and 0.31 grams of fentanyl.

{¶ 3} Following her indictment, Wood pled guilty to one count of aggravated

possession of drugs. In exchange for Wood’s guilty plea, the State agreed to dismiss

the charge for possession of a fentanyl related compound. The trial court accepted

Wood’s guilty plea, ordered a PSI report, and scheduled the matter for sentencing.

{¶ 4} At sentencing, the trial court afforded Wood and Wood’s counsel an

opportunity to make a statement before imposing a sentence. In doing so, Wood’s

counsel commented on Wood’s newfound motivation to address her longstanding

substance abuse problem and advocated for Wood to be sentenced to local incarceration -3-

and inpatient substance abuse treatment as opposed to prison. When Wood spoke at

the sentencing hearing, she admitted to having a history of substance abuse and told the

trial court that she would do whatever it took to complete a treatment program. The trial

court also heard from Wood’s sister, who expressed her belief that inpatient substance

abuse treatment would be in Wood’s best interest.

{¶ 5} Following these comments, the trial court permitted the State to speak on the

matter. The State advised the trial court that it had read the PSI report and noticed that

the version of events that Wood reported to the PSI examiner did not match the events

set forth in the police report. Specifically, the State said the following:

[Wood’s] version of the events does not match up with the officer’s

report exactly. Her version of the offense says that the officers grabbed

her purse out of the trunk and started searching it, which isn’t what

happened. * * * The officer asked [Wood] if they could search her purse.

She gave them consent to do that. They did not just start pulling a purse

out of a trunk. It was sitting on the front passenger seat where she had

been sitting.

You know, when they opened up the purse and they found a couple

of baggies that had pills, powder, a crystal-like substance, a pipe used for

smoking methamphetamine, syringes, [Wood] just said these things weren’t

hers. But it’s more than just like a small bag of drugs. It’s almost 4 grams

of meth in the one bag and then two other bags of drugs, another plastic

container of drugs and implements for using drugs.

So it’s clear that [Wood] has a problem and while, I think, she is -4-

saying here today that she wants to address it, I don’t know if she really took

responsibility for things. In the PSI, two weeks ago or a couple of weeks

ago after her plea, when she had the opportunity to really explain everything

that happened, her explanation was that it wasn’t hers, which I think we

probably all know isn’t true.

Inpatient treatment probably would be a good option for [Wood], but

I would ask that if the Court does do that, that if [Wood] were to violate by

not completing treatment or committing any new offenses, that at that point

the Court sentence her to 36 months, if the Court is going to go that route.

Sentencing Trans. (Apr. 6, 2021), p. 6-7.

{¶ 6} Wood did not object to the State’s comments or attempt to make a statement

in response. Following the State’s comments, and hearing no objection from Wood, the

trial court went over Wood’s criminal history and noted that Wood had multiple convictions

for breaking and entering, disorderly conduct, theft, unauthorized use of a motor vehicle,

possession of cocaine, possession of drug paraphernalia, loitering, and assault. The

trial court also noted that Wood had previously served time in prison. The trial court

additionally noted that the amount of methamphetamine Wood was carrying at the time

of the offense in question was greater than the bulk amount. The trial court further

considered that the State had dismissed the charge for possession of a fentanyl related

compound. Following these considerations, the trial court sentenced Wood to 30 months

in prison.

{¶ 7} Wood now appeals from her conviction, raising a single assignment of error

for review. -5-

Assignment of Error

{¶ 8} Under her sole assignment of error, Wood contends that the trial court

abused its discretion because the trial court allowed the State to address alleged factual

inaccuracies in the PSI report at the sentencing hearing and denied Wood an opportunity

to rebut the State’s comments. According to Wood, this warrants the vacation of her 30-

month prison sentence. We disagree.

{¶ 9} Although couched in other terms, Wood’s argument sounds in due process.

Under due process principles, a “ ‘defendant has a legitimate interest in the character of

the procedure which leads to the imposition of sentence even if he [or she] may have no

right to object to a particular result of the sentencing process.’ ” State v. Arnett, 88 Ohio

St.3d 208, 217-218, 724 N.E.2d 793 (2000), quoting Gardner v. Florida, 430 U.S. 349,

358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Therefore, “even a sentence within the limits

of a state’s sentencing laws may violate due process if the sentencing proceedings are

fundamentally unfair.” Id., citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252,

92 L.Ed. 1690 (1948) and Gardner at 358.

{¶ 10} In this case, the due process violation in question is based on R.C.

2951.03(B)(2), which gives a defendant the right to comment on his or her PSI report prior

to sentencing and affords the defendant an opportunity to dispute any alleged

inaccuracies in the PSI report. Specifically, R.C. 2951.03(B)(2) provides the following:

Prior to sentencing, the court shall permit the defendant and the

defendant's counsel to comment on the presentence investigation report

and, in its discretion, may permit the defendant and the defendant’s counsel -6-

to introduce testimony or other information that relates to any alleged factual

inaccuracy contained in the report.

{¶ 11} The foregoing statutory language indicates that R.C. 2951.03(B)(2) only

pertains to the defendant and the defendant’s counsel, as the statute does not indicate

whether and to what extent the State may comment on the PSI report at the sentencing

hearing. Wood argues that by omitting the State from the statute, the General Assembly

intended for only the defendant and the defendant’s counsel to have an opportunity to

address alleged factual inaccuracies in the PSI report. Wood, therefore, asserts that,

pursuant to R.C. 2951.03(B)(2), the trial court does not have discretion to permit the State

to address alleged factual inaccuracies in the PSI report. Based on this assertion, Wood

claims that the trial court in this case abused its discretion when it permitted the State to

comment on how her version of events recorded in the PSI report did not match the

version of events recorded in the police report.

{¶ 12} Upon reviewing R.C. 2951.03(B)(2), we find that there is nothing in the

statute supporting Wood’s claim that the State is prohibited from addressing alleged

factual inaccuracies in the PSI report. The State, in fact, must be afforded an opportunity

to speak at the sentencing hearing. See Crim.R. 32(A)(3). In State v. Tyree, 2d Dist.

Clark No. 2020-CA-26, 2021-Ohio-2217, we explained that a trial court may consider “an

array of information” when coming to a sentencing decision, and that it was not

inappropriate for the State to read certain evidence into the record at the sentencing

hearing in order to show that the defendant’s version of events recorded in the PSI report

was inaccurate. Id. at ¶ 4, and ¶ 6-9.

{¶ 13} Similar to Tyree, the State in this case used information from the police -7-

report to show that Wood’s version of events recorded in the PSI report was inaccurate.

In doing so, the State was simply attempting to show that Wood was being untruthful

about what happened, which tended to refute her claim that she wanted to take

responsibility for her actions. As in Tyree, we do not find that the State’s comments were

inappropriate, as “a trial court may rely on ‘a broad range of information’ at sentencing.”

State v. Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43, quoting State v.

Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d Dist.).

{¶ 14} Furthermore, although Wood’s version of events conflicted with the police

report (which was included in the PSI report), the record did not establish that the PSI

examiner inaccurately recorded Wood’s version of events when preparing the PSI report

for the trial court’s review. Therefore, when the State pointed out the differences

between Wood’s version of events and the version of events in the police report, the State

was not actually addressing a factual inaccuracy in the PSI report itself, but was simply

attempting to demonstrate that Wood was being untruthful when she reported her version

of events to the PSI examiner. See State v. Pena, 93 Ohio App.3d 367, 369, 638 N.E.2d

626 (6th Dist.) (finding that conflicting statements in a PSI report were not inaccuracies

since there was nothing in the record to demonstrate that the statements were

inaccurate). For all the foregoing reasons, Wood’s claim that the trial court abused its

discretion by allowing the State to comment on factual inaccuracies in the PSI report at

sentencing lacks merit.

{¶ 15} Wood’s claim that the trial court denied Wood an opportunity to rebut the

State’s comments about the PSI report also lacks merit, as there is nothing in the record

to support that claim. Pursuant to Crim.R. 32(A)(1) and (2), the trial court was simply -8-

required to afford Wood and her counsel an opportunity to speak in mitigation of

punishment at the sentencing hearing. The record establishes that the trial court

complied with that obligation. The record also establishes that after Wood and her

counsel made their statements at the sentencing hearing, they chose not to respond to

the State’s subsequent comments about the PSI report; they remained silent and did not

object or ask to respond. If Wood had a problem with the State’s comments, she could

have objected to them. Because Wood failed to object to the State’s comments about

the PSI report, any arguments related to that matter are therefore waived on appeal. See

State v. Richardson, 2d Dist. Montgomery No. 23879, 2013-Ohio-1374, ¶ 17.

{¶ 16} For the foregoing reasons, Wood’s sole assignment of error is overruled.

Conclusion

{¶ 17} Having overruled Wood’s assignment of error, the judgment of the trial court

is affirmed.

DONOVAN, J. and HALL, J., concur.

Copies sent to:

Ian A. Richardson Carl J. Bryan Hon. Douglas M. Rastatter