[Cite as State v. Colquhoun, 2017-Ohio-7929.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2017-CA-9
                                                     :
 v.                                                  :   Trial Court Case No. 2016-CR-433
                                                     :
 DUSTIN A. COLQUHOUN                                 :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                                OPINION

                         Rendered on the 29th day of September, 2017.

                                                ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419
    Attorney for Defendant-Appellant

                                                .............




TUCKER, J.
                                                                                            -2-




         {¶ 1} Defendant-appellant, Dustin A. Colquhoun, appeals from the trial court’s

decision to accept his plea of guilty on one count of aggravated possession of a controlled

substance, a third-degree felony under R.C. 2925.11(A) and (C)(1)(b). Presenting four

assignments of error, Colquhoun argues that his sentence constitutes cruel and unusual

punishment for purposes of the Eighth Amendment to the federal constitution and Article

I, Section 9 of the Ohio Constitution; that his sentence is contrary to the provisions of R.C.

5119.26 and R.C. Chapter 5120; and that his sentence is a violation of the Equal

Protection Clause of the federal constitution and Article I, Section 2 of the Ohio

Constitution. We find that Colquhoun’s arguments lack merit, and we therefore affirm

his conviction.

                              I. Facts and Procedural History

         {¶ 2} A Greene County grand jury issued an indictment against Colquhoun on

August 19, 2016, charging him with possession of methamphetamine in a quantity equal

to or exceeding, but less than five times, the bulk amount.           On October 6, 2016,

Colquhoun appeared before the trial court and pleaded guilty as charged.                At his

sentencing hearing on December 29, 2016, the court sentenced him to serve a term of

imprisonment      of   36   months,    the   maximum     available   penalty    under    R.C.

2929.14(A)(3)(b).1

         {¶ 3} Appellant filed his notice of appeal on February 8, 2017, along with a motion

for appointment of counsel, a motion for preparation of a transcript at the State’s expense,



1   The sentence includes an optional term of post release control lasting up to three years.
                                                                                           -3-


and a motion for leave to file a delayed appeal. We sustained Appellant’s motions in

decisions entered on March 15, 2017 and March 23, 2017.

                                        II. Analysis

       {¶ 4} For his first assignment of error, Colquhoun contends that:

              THE TRIAL COURT SENTENCE TO 36 MONTHS IN PRISON WAS

       CONTRARY TO LAW IN VIOLATION OF THE CRUEL AND UNUSUAL

       PUNISHMENT CLAUSE OF THE 8TH AND 14TH AMENDMENTS TO THE

       UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 9 OF THE

       OHIO CONSTITUTION.

       {¶ 5} Colquhoun posits that “a careful review of his prior criminal history * * * links

[virtually] all [of] his convictions to the abuse of alcohol or drugs.” Appellant’s Br. 12.

Suggesting “that he may be statutorily ineligible to obtain any adequate and appropriate

treatment for his * * * addictions [while] in prison” because of his record of recidivism, he

appears to argue that his incarceration in the absence of treatment constitutes cruel and

unusual punishment. See id. at 6-10 and 12-13. In its response, the State argues that

Colquhoun’s sentence does not violate the Eighth Amendment as a matter of law because

the term of imprisonment imposed by the trial court falls within the range specified in R.C.

2929.14(A)(3)(b).2 Appellee’s Br. 2-3.

       {¶ 6} Eighth Amendment “violations are rare, and instances of cruel and unusual

punishment are limited to those [sanctions that], under the circumstances, would be

considered shocking to any reasonable person.” State v. Harding, 2d Dist. Montgomery


2 R.C. 2929.14(A)(3)(b) states that “[f]or a felony of the third degree that is not an offense
[to which R.C. 2929.14(A)(3)(a)] applies, the prison term shall be nine, twelve, eighteen,
twenty-four, thirty, or thirty-six months.”
                                                                                        -4-

No. 20801, 2006-Ohio-481, ¶ 77, citing State v. Weitbrecht, 86 Ohio St.3d 368, 370, 715

N.E.2d 167 (1999). To violate the Eighth Amendment, a “punishment must be so greatly

disproportionate to [an] offense that it shocks the [community’s] sense of justice.” Id.,

citing Weitbrecht, 86 Ohio St.3d at 370.

      {¶ 7} Because “we are bound to give substantial deference to the General

Assembly, which has established a specific range of punishment for every offense,” a

sentence “that falls within the terms of a valid statute [generally] cannot amount to * * *

cruel and unusual punishment.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,

888 N.E.2d 1073, ¶ 24; State v. Mayberry, 2014-Ohio-4706, 22 N.E.3d 222, ¶ 38 (2d

Dist.), citing Hairston, 2008-Ohio-2338, ¶ 21.     This general rule applies equally to

sentences imposed on “persons with extensive health problems” inasmuch as the

“legislature did not see fit to provide for lesser sentences” for such persons. See State

v. O’Shannon, 44 Ohio App.3d 197, 198, 542 N.E.2d 693 (10th Dist. 1988).

      {¶ 8} As the State observes, the thirty-six month term of imprisonment to which the

trial court sentenced Colquhoun is within the range set by R.C. 2929.14(A)(3)(b), meaning

that the sentence presumptively cannot amount to cruel and unusual punishment in

violation of the Eighth Amendment. The record before us, moreover, suggests no reason

for abandoning the general rule in this case.           Consequently, Colquhoun’s first

assignment of error is overruled.

      {¶ 9} For his second assignment of error, Colquhoun argues that:

             THE TRIAL COURT SENTENCE TO 36 MONTHS IN PRISON WAS

      CONTRARY TO LAW IN VIOLATION OF APPELLANT’S RIGHT(S)

      UNDER R.C. § 5119.26 AS A PERSON DETAINED FOR MEDICAL
                                                                                          -5-


       PURPOSES        TO     RECEIVE       ADEQUATE        AND     APPROPRIATE

       TREATMENT[.]

       {¶ 10} Referring to the possibility that he “may be ineligible” to receive medical

care for his addictions while incarcerated, Colquhoun “submits that the trial court’s

sentence [of] 36 months in prison, without the availability of statutorily authorized

adequate and appropriate drug and alcohol addiction treatment, is [a] clear violation of

Ohio law and should be vacated forthwith.” Appellant’s Br. 12-13. The State contends

to the contrary that not only has Colquhoun failed to establish that he is ineligible for all

potentially available treatment programs, but the provisions of R.C. 5119.26 do not apply

to him. Appellee’s Br. 3-4.

       {¶ 11} The record of this matter is silent on the question of whether Colquhoun is

eligible for one or more treatment programs, although at the end of its judgment entry, the

trial court appended a request that “the warden * * * attempt to admit [Colquhoun] into the

OASIS [program] or [a] similar program as soon as practical.” Judgment Entry 4, Dec.

29, 2016.    We gather from this request that the trial court, at least, believed that

Colquhoun would be eligible for the OASIS program or a comparable offering.

       {¶ 12} Moreover, R.C. 5119.26 states in relevant part that “a person detained for

medical purposes” shall retain his right “to receive adequate and appropriate treatment.”

Regardless of the extent to which Colquhoun’s addiction to alcohol or drugs has

contributed to his criminal proclivities, his present incarceration is not “for medical

purposes.”    The statute’s use of the word “detained,” as opposed to the word

“imprisoned” or the word “incarcerated,” further suggests that it is applicable not to a

person in Colquhoun’s circumstances—i.e. a person sentenced to prison for the
                                                                                       -6-


commission of a crime—but to a person subjected to involuntary confinement, on criminal

charges or otherwise, primarily as the result of being adjudicated mentally incompetent.3

Compare R.C. 5119.26 with R.C. 2945.401(A), 5119.01(A)(17)(a)(i)-(ii), and 5119.33.

        {¶ 13} We find that the provisions of R.C. 5119.26 are inapplicable in this case.

Therefore, Colquhoun’s second assignment of error is overruled.

        {¶ 14} For his third assignment of error, Colquhoun contends that:

               THE TRIAL COURT SENTENCE TO 36 MONTHS IN PRISON WAS

        CONTRARY TO LAW IN THAT THE PROVISIONS OF R.C. CHAPTER

        5120 MAY RENDER APPELLANT STATUTORILY INELIGIBLE TO

        RECEIVE       NECESSARY      MEDICAL     DRUG      TREATMENT         WHILE

        INCARCERATED IN THE OHIO PRISON SYSTEM.

        {¶ 15} Colquhoun presents no argument expressly connected to this contention,

and it appears to be a restatement of the premise of his second assignment of error. See

Appellant’s Br. 12-13. As we determined when we considered the previous assignment,

Colquhoun has not shown that he is, in fact, ineligible for OASIS or a similar program of

addiction treatment, and the trial court’s judgment entry suggests that he is eligible to

participate in OASIS. On the record before us, then, Colquhoun’s third assignment of

error is overruled.

        {¶ 16} For his fourth assignment of error, Colquhoun argues that:

               THE TRIAL COURT SENTENCE TO 36 MONTHS IN PRISON WAS

        CONTRARY TO LAW IN VIOLATION OF THE EQUAL PROTECTION

        CLAUSE OF SECTION 2, ARTICLE 1 OF THE OHIO CONSTITUTION


3   R.C. Chapter 5119 is captioned “Department of Mental Health and Addiction Services.”
                                                                                        -7-


      AND THE UNITED STATES CONSTITUTION IN THAT THE MEDICAL

      DRUG TREATMENT PRACTICALLY AVAILABLE IN THE OHIO PRISON

      SYSTEM BEARS NO RATIONAL RELATIONSHIP TO THE LEGITIMATE

      GOVERNMENT OBJECTIVE OF ADDRESSING RECIDIVISM FATHERED

      BY AN ESCALATING OPIOID EPIDEMIC.

      {¶ 17} Colquhoun provides no argument expressly elaborating on this argument,

though he notes that in another case—Montgomery County Court of Common Pleas Case

No. 2015 CR 03916—he was approved for entry into the STOP program, and on this

basis, opines that his sentence in the instant matter “constitute[s] an unnecessary burden

upon state resources.” Appellant’s Br. 13. Implicitly, Colquhoun argues that the cost of

his incarceration for 36 months could be avoided or at least reduced were he allowed to

enter the STOP program instead. He adds, similarly, that his placement in an addiction

treatment program instead of being imprisoned “may well [be] the best chance for society

to economically achieve a workable path way [sic] to bring an end to [his] drug and alcohol

crimes.” Id.

      {¶ 18} Equal protection “analysis begins with the rebuttable presumption that

statutes are constitutional.” State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812

N.E.2d 963, ¶ 5, citing Adamsky v. Buckeye Local Sch. Dist., 73 Ohio St.3d 360, 361, 653

N.E.2d 212 (1995). We need not, however, “even reach the equal protection issue if all

offenders in a class are treated equally.” Id. at ¶ 6, citing Conley v. Shearer, 64 Ohio

St.3d 284, 290, 595 N.E.2d 862 (1992). Here, Colquhoun fails to indicate whether the

“medical drug treatment” program or programs to which he refers is the OASIS program,

the STOP program, or the whole panoply of treatment programs available in Ohio.
                                                                                   -8-


Furthermore, he neither defines the “class” to which he would belong for purposes of

equal protection analysis, nor alleges that he has been subjected to differential or

discriminatory treatment with respect to any other person or persons. Accordingly, we

hold that Colquhoun’s argument on this point lacks merit, and we overrule his fourth

assignment of error.

                                     III. Conclusion

      {¶ 19} We find that Colquhoun’s assignments of error are unsupported by the

record and lack merit. Therefore, we affirm the trial court.



                                     .............



HALL, P.J. and WELBAUM, J., concur.



Copies mailed to:

Nathaniel R. Luken
Carlo C. McGinnis
Hon. Michael A. Buckwalter
