[Cite as State v. Scott, 2018-Ohio-1116.]



                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO                                     :

        Plaintiff-Appellee,                       :     CASE NO. CA2017-07-100

                                                  :             OPINION
    - vs -                                                       3/26/2018
                                                  :

BETHANY A. SCOTT,                                 :

        Defendant-Appellant.                      :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CR2017-02-0263



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Charles M. Conliff, P. O. Box 18424, Fairfield, OH 45018-0424, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Bethany A. Scott, appeals from the decision of the

Butler County Court of Common Pleas sentencing her to serve six years in prison after she

pled guilty to single counts of robbery and aggravated possession of drugs. For the reasons

outlined below, we affirm.

        {¶ 2} On March 22, 2017, the Butler County Grand Jury returned a four-count

indictment charging Scott with, among other offenses, robbery and aggravated possession
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of drugs, both second-degree felonies. The charges also included specifications for the

forfeiture of an airsoft pistol and several thousand dollars in cash. According to the bill of

particulars, the charges arose after Scott robbed a Butler County pharmacy of

approximately 2,000 Oxycodone tablets on the evening of January 30, 2017. It was alleged

that during the robbery Scott displayed what appeared to be a handgun – a weapon that

was in actuality an airsoft pistol – and ordered the store clerk to "[g]ive me all the Percocets

and no one will get hurt."1 The following day, Scott was arrested after she was found in

possession of 854 Oxycodone tablets and several thousand dollars in cash. It is undisputed

that at the time of her arrest Scott was several months pregnant.2

        {¶ 3} On May 11, 2017, Scott entered into a plea agreement, wherein she agreed

to plead guilty to robbery, a second-degree felony, and aggravated possession of drugs, a

third-degree felony, in exchange for dismissal of the remaining charges against her. After

conducting the necessary Crim.R. 11 plea colloquy, the trial court accepted Scott's guilty

plea and confirmed with Scott that she understood that a prison term was presumed

necessary in her case given the nature of the charges against her. After being so notified,

Scott's trial counsel acknowledged that Scott understood both charges carried a

presumption of prison that "is very difficult to overcome."

        {¶ 4} On June 15, 2017, the parties reconvened for purposes of sentencing and

Scott's trial counsel notified the trial court in mitigation that representatives from the MonDay

Community Correctional Institution ("MonDay program"), one of several community based

correctional facilities ("CBCF") presently operating in the state, had spoken with Scott earlier

that morning about a potential referral to that facility, but that he was "not sure that any kind


1. While often manufactured to closely resemble the appearance of a real firearm, an airsoft pistol is a replica
weapon that is more colloquially referred to as a BB gun.

2. The record indicates Scott gave birth to her youngest child while being held in the Butler County jail awaiting
trial on the charges subject to this appeal.
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of report or recommendation was prepared on that basis." Never moving the trial court for

a continuance, Scott's trial counsel then informed the trial court that he believed Scott was

"amenable to available community control sanctions," but understood "that there is a

presumption of prison time and [Scott] understands that going in."

       {¶ 5} Following mitigation, and after Scott herself addressed the trial court and

apologized for her actions, the trial court again noted that the charges she pled guilty to

carried a presumption of prison. Thereafter, explicitly stating that it had considered the

purposes and principles of sentencing as found in R.C. 2929.11 and the seriousness and

recidivism factors listed in R.C. 2929.12, the trial court found Scott was not amenable to

community control sanctions and sentenced her to serve six years in prison. The trial court

then ordered Scott to pay $6,400 in restitution, as well as to forfeit the airsoft pistol she used

in the robbery and several thousand dollars in cash. The trial court further notified Scott

that she would be subject to a mandatory three-year term of postrelease control upon her

release from prison.

       {¶ 6} Scott now appeals from the trial court's decision sentencing her to serve six

years in prison, raising the following single assignment of error for review.

       {¶ 7} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY

IMPOSING A PRISON SENTENCE.

       {¶ 8} Scott argues the trial court erred by sentencing her to serve six years in prison

rather than merely imposing community control sanctions. In support of this claim, Scott

argues she was "denied the opportunity to demonstrate that she was, in fact, amenable to

an available community control sanction." Specifically, Scott argues that because her

assessment for the MonDay program had not been completed prior to her sentencing

hearing, the trial court erred by failing to sua sponte continue the sentencing hearing in

order to obtain a "definitive determination" as to whether she had "been accepted or

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rejected" into the MonDay program "or to have referred her for an assessment to an

alternative CBCF program," such as that offered by the River City Correctional Center

("River City program").3 We disagree.

        {¶ 9} As with all felony sentences, we review this sentence under the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, ¶ 1. Pursuant to that statute, an appellate court may modify or vacate a sentence

only if, by clear and convincing evidence, "the record does not support the trial court's

findings under relevant statutes or that the sentence is otherwise contrary to law." State v.

Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence is not

clearly and convincingly contrary to law where the trial court "considers the principles and

purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes

postrelease control, and sentences the defendant within the permissible statutory range."

State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. Thus, this court

may "increase, reduce, or otherwise modify a sentence only when it clearly and convincingly

finds that the sentence is (1) contrary to law or (2) unsupported by the record." State v.

Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1.

        {¶ 10} After a thorough review of the record, we find Scott's six-year prison sentence

was neither clearly and convincingly contrary to law nor unsupported by the record. The

record makes clear the trial court considered the purposes and principles of sentencing as

found in R.C. 2929.11, as well as the seriousness and recidivism factors listed in R.C.

2929.12. The record also makes clear the trial court sentenced Scott within the permissible

statutory range for both charges that she pled guilty to, namely, robbery and aggravated



3. According to its website, the MonDay program is a CBCF "that provides a secure treatment environment
for probationable felony offenders." Similarly, the website for the River City program states that it is a CBCF
that serves as "a local alternative to prison with the primary purpose of rehabilitation for non-violent, felony
offenders."
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                                                                         Butler CA2017-07-100

possession of drugs, one a second-degree felony and the other a third-degree felony. See

R.C. 2929.14(A)(2) and (3) (providing that for a second-degree felony the prison term shall

be between two and eight years, whereas a prison term for a third-degree felony shall be

between nine to thirty-six months). As the record firmly establishes, Scott pled guilty to

robbing a Butler County pharmacy of approximately 2,000 Oxycodone tablets while

displaying what appeared to be a handgun and ordered the clerk to "[g]ive me all the

Percocets and no one will get hurt." The serious nature of these offenses, coupled with the

fact that, as the trial court found, the clerk suffered serious psychological harm, supports

the trial court's sentencing decision.

       {¶ 11} Scott nevertheless argues the trial court erred by not sua sponte continuing

her sentencing hearing to obtain a "definitive determination" as to whether she had "been

accepted or rejected" into the MonDay program "or to have referred her for an assessment

to an alternative CBCF program," such as the River City program. The trial court, however,

even without receiving a definitive determination regarding whether Scott would be

accepted into any CBCF program, determined that Scott was not amenable to community

control sanctions, of which placement in a CBCF program would be a component. State v.

Hall, 2d Dist. Greene No. 99 CA 94, 2000 Ohio App. LEXIS 328, *4 (Feb. 4, 2000). We find

no error in the trial court's decision. Again, as the record firmly establishes, Scott pled guilty

to robbing a Butler County pharmacy of approximately 2,000 Oxycodone tablets while

displaying what appeared to be a handgun and ordered the clerk to "[g]ive me all the

Percocets and no one will get hurt." The serious nature of these offenses, along with the

serious psychological harm suffered by the clerk, supports this decision.

       {¶ 12} In light of the foregoing, we find the trial court did not err by failing to sua

sponte continue Scott's sentencing hearing in order to obtain a "definitive determination" as

to whether she had "been accepted or rejected" into the MonDay program (or any other

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CBCF program) as Scott now suggests. In further support of this decision, we note that

Scott provided neither this court nor the trial court with any evidence indicating she actually

was or would have been accepted into any of the various CBCF programs presently

operating within the state.    Scott, therefore, has demonstrated no resulting prejudice.

Accordingly, finding no error in the trial court's decision sentencing Scott to serve six years

in prison, nor any resulting prejudice, Scott's single assignment of error is overruled.

       {¶ 13} Judgment affirmed.


       HENDRICKSON and M. POWELL, JJ., concur.




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