[Cite as State v. Musser, 2019-Ohio-5271.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2019-CA-8
                                                   :
 v.                                                :   Trial Court Case Nos. 2019-CR-145
                                                   :
 JUSTIN R. MUSSER                                  :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 20th day of December, 2019.

                                              ...........

JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, Appellate Division, Safety Building, 301 West Main Street,
Troy, Ohio 45373
       Attorney for Plaintiff-Appellee

GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215
    Attorney for Defendant-Appellant

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




DONOVAN, J.
                                                                                       -2-




       {¶ 1} Defendant-appellant Justin R. Musser appeals his conviction and sentence

in Miami C.P. No. 19-CR-145, for one count of aggravated possession of drugs

(methamphetamine), in violation of R.C. 2925.11(A)(C)(1)(b), a felony of the third degree.

Musser filed a timely notice of appeal with this Court on July 1, 2019.

       {¶ 2} In a previous case, Miami C.P. No. 18-CR-528, Musser was indicted for one

count of possession of heroin, in violation of R.C. 2925.11(A)(C)(6)(b), a felony of the

fourth degree. On January 7, 2019, Musser pled guilty as charged and was granted

intervention in lieu of conviction (ILC). On February 27, 2019, Musser’s ILC was revoked

and he was placed on community control sanctions.

       {¶ 3} In Case No. 19-CR-145, Musser pled guilty to one count of aggravated

possession of drugs (methamphetamine); on June 14, 2019, the trial court sentenced

Musser to 30 months in prison. On the same day, the trial court revoked Musser’s

community control in Case No. 18-CR-528 and sentenced him to 12 months in prison, to

be served concurrently to the sentence imposed in Case No. 19-CR-145.

       {¶ 4} Musser now appeals from the trial court’s judgment in Case No. 19-CR-145.

       {¶ 5} Musser’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED IN NOT OVERRIDING THE PRESUMPTION

       OF A PRISON TERM.

       {¶ 6} Musser contends that the trial court erred when it failed to override the

presumption of a prison term pursuant to R.C. 2929.13(D)(2) and sentenced him to 30

months for aggravated possession of drugs. (The trial court also ordered Musser to

serve a concurrent sentence of 12 months in prison for violating his community control in
                                                                                          -3-


Case No. 2018-CR-528, which he has not appealed.)

       {¶ 7} As this Court has previously noted:

       “The trial court has full discretion to impose any sentence within the

       authorized statutory range, and the court is not required to make any

       findings or give its reasons for imposing maximum or more than minimum

       sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

       However, in exercising its discretion, a trial court must consider the statutory

       policies that apply to every felony offense, including those set out in R.C.

       2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-

       Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

       St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.

       {¶ 8} R.C. 2929.11 requires trial courts to be guided by the overriding purposes of

felony sentencing. Those purposes 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). The court must “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.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender's conduct and its impact upon the victim, and consistent with sentences imposed
                                                                                            -4-


for similar crimes committed by similar offenders.”

       {¶ 9} R.C. 2929.12(B) sets forth nine factors indicating that an offender's conduct

is more serious than conduct normally constituting the offense. These factors include

whether the physical or mental injury to the victim was exacerbated because of the

physical or mental condition of the victim; serious physical, psychological, or economic

harm suffered by the victim as a result of the offense; whether the offender's relationship

with the victim facilitated the offense; and whether the offender committed the offense for

hire or as a part of an organized criminal activity.

       {¶ 10} R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct

is less serious than conduct normally constituting the offense, including whether the victim

induced or facilitated the offense, whether the offender acted under strong provocation,

whether, in committing the offense, the offender did not cause or expect to cause physical

harm to any person or property, and the existence of substantial grounds to mitigate the

offender's conduct, although the grounds are not enough to constitute a defense. R.C.

2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the

offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the

sentencing court to consider the offender's military service record.

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

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

1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), 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) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.
                                                                                -5-


{¶ 12} At Musser’s sentencing hearing, the trial court stated the following:

       Trial Court: * * * The court has considered the pre-sentence

investigation report as well as the letter from [Miami Valley Recovery

Council] and the assessment they did. The court has to consider three

principles in sentencing and that is to protect the public from future crime;

punish you for the offense committed; and promote effective rehabilitation.

The court finds in this case that you are 34 years old; you’ve demonstrated

that you cannot let go of the drugs; that you know you’re an addict; you’re

a daily meth user; for the most part you’re unemployed; you go to your

parents whenever it’s convenient on the weekends to help them out or just

to get some extra money; your juvenile record also includes drugs; you told

the PSI writer, and I quote, my crime has been a huge smack in the face

and [I] hope, with the chance, I could move forward and make better

decisions in my life. The court doesn’t believe that, and I don’t know how

this case could be a huge smack in the face, because you have given your

history, and your ex-girlfriend overdosed; your brother died of an overdose.

How did those events not wake you up? And if those two events didn’t

wake you up, then [on] November 12, 2018, you overdosed and you were

hospitalized and you were in ICU because you had vomited and it was in

your lungs.

       ***

       This case, you were providing drugs; you know of two people who

have already died; you could have died; and now you have more drugs;
                                                                                  -6-


you’re affecting others. That is what the principles of sentencing is[sic]

about; protecting the public; protecting other people from getting drugs.

So, after the overdose that you had and you get a charge, you get granted

ILC in December. You went to drug court and you were positive at drug

court. You didn’t complete any of your ordered treatment; your ILC was

terminated in February; and you were ordered to complete in-patient

treatment; don’t tell me you didn’t know about it. You had a warrant on that

case, and you were being arrested on a warrant when this offense occurred.

The problem is, it just wasn’t the drugs, you then were resisting; you refused

to take your hands out of your pockets; and then you were with a female

hiding in the bathroom who had several warrants for her. So, you have no

real stable income; you have no stable living environment; and you’re

hanging out with those people who are doing drugs as well, always in the

criminal system.

       ***

       On a felony of the third degree, it’s presumed prison would be

imposed unless you satisfy the conditions under [R.C.] 2929.13(D)(2).

This requires the court to find that recidivism is less likely than the factors

that recidivism is more likely and community control would not demean the

seriousness of the offense due to the less serious factors outweighing the

serious ones. The court cannot agree that community control would work

in your case at all. You had that case in November where you violated

your terms of ILC; it was revoked; you did nothing to help yourself; you had
                                                                                        -7-


       a warrant out for that case; and you violated community control, which is,

       again, why you’re here today. Based on all I’ve indicated, on this charge

       you will serve a sentence of 30 months.

              ***

              * * * On the community violation, the court will impose the 12 months;

       terminate the community control and that will run concurrent with the

       sentence you just received.

(Emphasis added.) Sentencing Tr. 11-14.

       {¶ 13} In the instant case, Musser was convicted of aggravated possession of

drugs (methamphetamine), in violation of R.C. 2925.11(A)(C)(1)(b), which states in

pertinent part:

       (A) No person shall knowingly obtain, possess, or use a controlled

       substance or a controlled substance analog.

       ***

       (C) Whoever violates division (A) of this section is guilty of one of the

       following:

       ***

       (1) If the drug involved in the violation is a compound, mixture, preparation,

       or substance included in schedule I or II, with the exception of marihuana,

       cocaine, L.S.D., heroin, any fentanyl-related compound, hashish, and any

       controlled substance analog, whoever violates division (A) of this section is

       guilty of aggravated possession of drugs. The penalty for the offense shall

       be determined as follows:
                                                                                         -8-


      ***

      (b) If the amount of the drug involved equals or exceeds the bulk amount

      but is less than five times the bulk amount, aggravated possession of drugs

      is a felony of the third degree, and there is a presumption for a prison term

      for the offense.

      {¶ 14} Musser concedes that his felony drug possession offense carried a

presumption of a prison term. Under R.C. 2929.13(D)(1):

      any felony drug offense that is a violation of any provision of Chapter 2925

      * * * of the Revised Code for which a presumption in favor of a prison term

      is specified as being applicable, * * * it is presumed that a prison term is

      necessary in order to comply with the purposes and principles of sentencing

      under section 2929.11 of the Revised Code.

      {¶ 15} However, under certain circumstances, a trial court may depart from that

presumption.   As stated by the trial court during Musser’s sentencing hearing, R.C.

2929.13(D)(2) provides an exception to the presumption of prison as follows:

      [T]he sentencing court may impose a community control sanction or a

      combination of community control sanctions instead of a prison term on an

      offender * * * for a felony drug offense that is a violation of any provision of

      Chapter 2925., 3719., or 4729. of the Revised Code for which a

      presumption in favor of a prison term is specified as being applicable if it

      makes both of the following findings:

      (a) A community control sanction or a combination of community control

      sanctions would adequately punish the offender and protect the public from
                                                                                      -9-


      future crime, because the applicable factors under section 2929.12 of the

      Revised Code indicating a lesser likelihood of recidivism outweigh the

      applicable factors under that section indicating a greater likelihood of

      recidivism.

      (b) A community control sanction or a combination of community control

      sanctions would not demean the seriousness of the offense, because one

      or more factors under section 2929.12 of the Revised Code that indicate

      that the offender's conduct was less serious than conduct normally

      constituting the offense are applicable, and they outweigh the applicable

      factors under that section that indicate that the offender's conduct was more

      serious than conduct normally constituting the offense.

A trial court must make both of the above findings in order to overcome the presumption

of a prison sentence. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph

one of the syllabus.

      {¶ 16} Relying on R.C. 2929.13(D)(2), Musser argues the trial court failed to state

sufficient findings on the record to warrant the imposition of a prison term on his

aggravated drug possession conviction.      However, the finding requirements of R.C.

2929.13(D)(2) are only implicated where the court concludes that the presumption of

prison has been rebutted by the relevant seriousness and recidivism factors of R.C.

2929.12. See State v. Murnahan, 2d Dist. Champaign No. 2018-CA-6, 2018-Ohio-4762,

¶ 12, 13.

      {¶ 17} Based upon the trial court’s findings quoted above, we conclude the

presumption in favor of a prison term was not rebutted.         The court found that a
                                                                                        -10-


community-control sanction would not adequately punish Musser and protect the public

from future crime because the applicable factors indicating a lesser likelihood of

recidivism did not outweigh the applicable factors indicating a greater likelihood of

recidivism. The court also found that a community-control sanction would demean the

seriousness of the offense because one or more of the factors indicating that Musser's

conduct was less serious than the conduct normally constituting the offense were either

not applicable or did not outweigh the applicable more-serious-conduct factors. Lastly,

we note that the transcript of the sentencing hearing and the judgment entry establish

that the trial court considered the purposes and principles of sentencing in R.C. 2929.11

and the seriousness and recidivism factors in R.C. 2929.12. Simply put, based upon

Musser’s criminal history, his repeated noncompliance with ILC and community control

sanctions, and his PSI, the trial court’s decision to sentence Musser to a presumed prison

sentence of 30 months was not contrary to law.

      {¶ 18} Given the record before us, we cannot conclude that Musser's 30-month

prison sentence is contrary to law or that there is clear and convincing evidence that the

record does not support the sentence.1 No one disputes that a 30-month prison term is

within the statutory range, and the trial court “expressly state[ed] that it had considered

the purposes and principles of sentencing set forth in R.C. 2929.11, as well as the factors

in R.C. 2929.12.” State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32 (2d Dist.).

      {¶ 19} Musser’s sole assignment of error is overruled.

      {¶ 20} The judgment of the trial court is affirmed.



1 Again, we note that the concurrent 12 month sentence in Case No. 2018-CR-528
imposed by the trial court is not the subject of this appeal.
                                               -11-


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




WELBAUM, P.J. and FROELICH, J., concur.



Copies sent to:

Janna L. Parker
Glenda A. Smith
Hon. Stacy M. Wall
