[Cite as State v. Baker, 2019-Ohio-4004.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     SANDUSKY COUNTY


State of Ohio                                    Court of Appeals No. S-18-050

        Appellee                                 Trial Court No. 18 CR 160

v.

Clarrisa M. Baker                                DECISION AND JUDGMENT

        Appellant                                Decided: September 30, 2019

                                            *****

        Timothy Braun, Sandusky County Prosecuting Attorney, and
        Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

        Danielle C. Kulik, for appellant.

                                            *****

        SINGER, J.

        {¶ 1} Appellant, Clarissa Baker, appeals from the November 26, 2018 judgment of

the Sandusky County Court of Common Pleas convicting her of tampering with evidence,

a violation of R.C. 2921.12(A)(1)(B), following acceptance of her guilty plea and
sentencing her to 24 months of imprisonment. For the reasons which follow, we affirm.

On appeal, appellant asserted the following assignments of error:

              1. IT IS AN ABUSE OF DISCRETION TO SENTENCE A

       DEFENDANT PURELY ON AN ACQUITTED CHARGE.

              2. THE SENTENCE IMPOSED WAS CONTRARY TO THE

       PURPOSES OF FELONY SENTENCING.

       {¶ 2} Appellant was indicted in a multiple-count indictment alleging one count of

violating R.C. 2921.12(A)(1)(B), tampering with evidence, a third-degree felony, and

one count of violating R.C. 2925.03(A)(1)(C)(1)(A), trafficking, a fourth-degree felony.

These two charges arose out of two separate incidents that occurred on February 2

and 22, 2018. On February 2, 2018, appellant hid evidence of drug usage after her

boyfriend overdosed on drugs at a Walmart parking lot. On February 22, 2018, appellant

sold 0.13 grams of Fentanyl. Appellant pled guilty to tampering with evidence and the

remaining charge was dismissed. Appellant was sentenced to a 24-month term of

imprisonment.

       {¶ 3} In her first assignment of error, appellant argues the trial court erred when it

considered evidence regarding the acquitted charge in sentencing appellant. However,

appellant was not acquitted of the second count. Rather, she entered a plea to the first

count in exchange for dismissal of the second count. In her second assignment of error,

appellant asserts that the sentence was imposed without consideration of the principles




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and purposes of sentencing because the court imposed more than the minimum sentence

for a first-time offender. We address both assignments of error together.

       {¶ 4} Our standard of review in this case is limited by R.C. 2953.08(G)(2)(b) to

whether the sentence is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 22-23. We cannot find a sentence is clearly and

convincingly contrary to law if the record indicates the trial court considered the purposes

and principles of sentencing, R.C. 2929.11, and the seriousness and recidivism factors,

R.C. 2929.12, and imposes a sentence within the statutory range. State v. Rubalcava, 6th

Dist. Lucas No. L-16-1070, 2016-Ohio-8171, ¶ 10. The court has discretion to impose

any sentence within the statutory range and is not required to give findings or reasons

before imposing the sentence, whether the maximum or more than the minimum sentence

allowed under law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, ¶ 11, abrogated on other grounds by State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 10; State v. Elmore, 6th Dist. Wood No. WD-17-033,

2018-Ohio-1003, ¶ 9.

       {¶ 5} A trial court can consider, with regard to sentencing, the facts relating to an

offense which was dismissed or of which the defendant was acquitted so long as these

facts are not the sole basis for the sentence. State v. Pippin, 6th Dist. Lucas No.

L-18-1023, 2019-Ohio-1387, ¶ 13-14; State v. Waxler, 6th Dist. Lucas No. L-11-1101,

2012-Ohio-3619, ¶ 10, citing State v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991).




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       {¶ 6} In this case, the court could have sentenced appellant to a definite prison

term of “nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” R.C.

2929.14(A)(1)(b). The trial court sentenced appellant to 24 months after reviewing the

“very thorough” presentence investigation report, consideration of the facts relating to the

offense as presented by the state and appellant, and noting appellant’s prior participation

in several treatment programs. However, the court also considered the fact that appellant

had been charged with trafficking in heroin about three weeks after her friend had

overdosed on heroin and she had destroyed the evidence of his drug use. The court also

noted that in the presentence investigation appellant acknowledged that she had been

using and selling Fentanyl in the county for quite some time. The court found these facts

were relevant to the issue of the sentence necessary to protect the public from future

crime by appellant and to punish her for her bad conduct. The fact that appellant was

currently participating in rehabilitative services was considered by the trial court but was

outweighed by the fact that the court believed a prison term was necessary to alter

appellant’s future behavior and protect the public.

       {¶ 7} We find that the court considered the principles of sentencing and the

seriousness and recidivism factors as it exercised its discretion in evaluating the facts of

this case. While the court considered the facts relating to appellant’s dismissed charge of

trafficking, the court also considered the additional facts regarding her tampering charge

and her own admissions regarding her long-term involvement in illegal drug trafficking.




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Therefore, we find the sentence was not contrary to law. Appellant’s first and second

assignments of error are not well-taken.

       {¶ 8} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Sandusky

County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this

appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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