[Cite as State v. Campbell, 2020-Ohio-3146.]




                         IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                 ROSS COUNTY

STATE OF OHIO,                 :
                               :         Case No. 19CA3683
     Plaintiff-Appellee,       :
                               :
vs.                            :
                               :         DECISION AND JUDGMENT
                               :         ENTRY
CHASSIDY CAMPBELL,             :
                               :
     Defendant-Appellant.      :
__________________________________________________________________

                                          APPEARANCES:

Jeffrey Marks, Ross County Prosecutor, Chillicothe, Ohio, for Appellee.

Chase B. Bunstine, Chillicothe, Ohio, for Appellant.
__________________________________________________________________


Smith, P.J.

        {¶1} This is an appeal from a Ross County Court of Common Pleas

judgment entry that sentenced Appellant, Chassidy Campbell, to an aggregate

twenty-four-month prison sentence for aggravated possession of drugs, in violation

of R.C. 2925.11, and receiving stolen property, in violation of R.C. 2913.51. After

reviewing the facts of the case and the law, we overrule Appellant’s assignment of

error and affirm the trial court’s sentencing entry.
Ross App. No. 19CA3683                                                                    2


                           PROCEDURAL HISTORY

      {¶2} On January 15, 2019, the State charged Appellant with receiving stolen

property, a fourth-degree felony, and aggravated possession of drugs, a fifth-degree

felony. At her arraignment, she pled not guilty.

      {¶3} On April 22, 2019, the trial court held a hearing to consider a plea

agreement in which the State recommended a sentence of eight months in prison.

During a colloquy with the trial court, Appellant indicated that she understood all

the consequences of her plea, including that the court was not bound to accept the

State’s recommended sentence, and that the court could impose between six and

eighteen months of prison time for the receiving stolen property charge, and

between six and twelve months of prison time for the aggravated possession of

drugs charge. The trial court accepted Appellant’s guilty plea, finding that she

made a knowing, voluntary, and intelligent decision. The trial court expressed a

desire to proceed directly to sentencing. However, Appellant sought a delay in

sentencing purportedly to arrange care for her disabled child. The trial court

agreed and postponed sentencing until May 13, 2019 at 9:15 a.m. on the condition

that Appellant would take weekly random drug tests until the 13th. The trial court

also told Appellant that if she tested positive for drugs or if she failed to appear on

the 13th, “all bets are off.” The court added, “you may go to prison for the full

freight on this case.” Appellant stated that she understood. The trial court then
Ross App. No. 19CA3683                                                                3


ordered Appellant to be released on her own recognizance, but that she must first

go to the probation department to be drug tested.

      {¶4} Appellant was not present when the trial court convened for her

sentencing hearing at 9:15 on May 13th. Appellant’s counsel informed the court

that Appellant stated she had been delayed by a car accident that occurred in front

of her. The court noted that Appellant had failed to comply with her pretrial

supervision but gave Appellant a few minutes to appear, stating that if she did not

appear the court would issue an arrest warrant. At 9:29 a.m., the trial court

recessed.

      {¶5} At 9:31 a.m., the court went back on the record with Appellant present

in the courtroom. The trial court expressed its concern that Appellant was late and

stated that Appellant had failed to comply with the pre-sentencing requirements

through the probation department. The court then ordered the probation

department to drug test Appellant “right now.” However, Appellant did not go to

the probation department. Instead, she left the court and did not return. The court

issued an entry finding that Appellant failed to appear for her sentencing hearing

and issued a warrant for her arrest. Appellant was arrested on May 23, 2019.

      {¶6} On May 24, 2019, the court held a hearing to sentence Appellant. At

the hearing, the court recounted that at the May 13th hearing Appellant was
Ross App. No. 19CA3683                                                               4


ordered to be drug tested, but instead she fled the courthouse and was later arrested

by the Marshal Service on the 23rd pursuant to an arrest warrant.

      {¶7} The trial court asked the State if it had any comments. The State

alleged that Appellant was “dishonest” with the Marshals by attempting to

“mislead” them about her identity.

      {¶8} The trial court then asked Appellant if she had any comments.

Appellant said that she “got really scared and ran” when the court mentioned a

possible thirty-month sentence. She apologized for her behavior and claimed to be

compliant with the drug testing. The trial court noted that Appellant tested positive

for methamphetamine, MDMA, and THC. Appellant admitted to making poor

choices.

      {¶9} The court then proceeded with sentencing. The trial court stated that it

had considered “[Presentence Investigation], the statements of [Appellant] and

counsel, and I’m making my decision primarily based upon the overriding

principals and purposes of felony sentencing. I’ve considered all the relevant and

seriousness and recidivism factors. I find that the offender is not amenable to

community control and that a prison term is consistent with the purposes and

principals of felony sentencing.” The court then sentenced Appellant to eighteen

months for receiving stolen property and six months for aggravated possession of

drugs with the sentences to be served consecutively to each other, for an aggregate
Ross App. No. 19CA3683                                                                   5


sentence of twenty-four months in prison. The court found that “consecutive

sentences are necessary to protect the public and punish the offender, that they are

not disproportionate and that I find that in this case the harm is so great or unusual

that a single term does not adequately reflect the seriousness of Appellant’s

conduct.” It is from this sentencing entry that Appellant appeals, asserting a single

assignment of error.

                          ASSIGNMENT OF ERROR

      “APPELLANT ASSERTS THAT THE RECORD DOES NOT
      SUPPORT THE TRIAL COURT’S FINDINGS FOR APPELLANT’S
      SENTENCE.”

      {¶10} Appellant argues that her sentence is not supported by the record.

Appellant argues that a plea was negotiated with the State, which included a

recommended eight-month sentence. Appellant admits that she made “some poor

choices” in between her plea agreement and sentencing because she became

“scared and panicked” from the prospect of additional time. Nevertheless, she

argues that those poor choices do not warrant sixteen more months than were

negotiated in the plea agreement. Therefore, she asks this court to vacate her

sentence and remand her case for resentencing, or to reduce her sentence.

      {¶11} In response, the State argues that the trial court made the requisite

findings to support Appellant’s twenty-four-month sentence. The State argues that

the only indication that Appellant would receive less than twenty-four months was
Ross App. No. 19CA3683                                                               6


the plea agreement, which reflected a recommended eight-month sentence.

However, the State argues, after the plea agreement was reached Appellant tested

positive for methamphetamine prior to her sentencing. The State also cites

Appellant’s flight from the courtroom after the trial court had ordered her to take a

drug test. Therefore, the State argues Appellant’s sentence is supported by the

record.

                                 THE LAW

      1. Appealing a Felony Sentence.

      {¶12} R.C. 2953.08(G) provides that a defendant may appeal a felony

sentence under certain circumstances. Under R.C. 2953.08(G)(2), a reviewing

court may vacate or modify a felony sentence only under two circumstances: “it

determines by clear and convincing evidence that the record does not support the

trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 1. “Clear and convincing evidence is that measure or degree of

proof * * * which will produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” Id. at ¶ 22, citing Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

      {¶13} Here we are concerned only with the first prong of Marcum, i.e.

whether the trial court’s sentencing findings are supported in the record. A
Ross App. No. 19CA3683                                                                  7


reviewing court may increase, reduce, or modify a sentence if “the record does not

support the sentencing court’s findings under” the following provisions (if

applicable): R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), R.C.

2929.20(I). State v. Lechner, 4th Dist. Highland No. 19CA3, 2019-Ohio-4071,

¶ 50, 51, citing Marcum at ¶ 22-23. Unlike the statutes mentioned in Lechner, “the

general-guidance sentencing statutes of R.C. 2929.11 and 2929.12 * * * merely

require courts to ‘consider’ the statutory factors to determine a sentence within the

statutory range.” State v. Washington, 4th Dist. Gallia No. 17CA8, 2018-Ohio-

3545, ¶ 22, (Abele, J. Concurring), citing State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470, ¶ 36-42 (2007-Ohio-3944, ¶ 41, quoting State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856 N.E.2d 470, at ¶ 100). Therefore, “it is

fully consistent for appellate courts to review those sentences that are imposed

solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a

standard that is equally deferential to the sentencing court.” Marcum, at ¶ 23.

      2. Required Sentencing Findings and Considerations.

      {¶14} In this case, the trial court imposed prison terms for both the fourth-

and fifth-degree felonies, which implicated R.C. 2929.13, as well as the general

provision applicable to all felony sentencing, R.C. 2929.11 and R.C. 2929.12. The

trial court also required both prison terms to be served consecutively, which

implicated R.C. 2929.14.
Ross App. No. 19CA3683                                                                   8


      a. R.C. 2929.13.

      {¶15} “R.C. 2929.13(B)(1)(a) includes a presumption for community

control if an offender is convicted of, or pleads guilty to, a felony of the fourth or

fifth degree that is not an offense of violence.” State v. Grimmette, 4th Dist. Scioto

No. 18CA3830, 2019-Ohio-3576, ¶ 11, citing State v. Napier, 12th Dist. Clermont

No. CA2016-04-022, 2017-Ohio-246, ¶ 44, State v. Lilly, 12th Dist. Clermont Nos.

CA2017-06-029, CA2017-06-030, 2018-Ohio-1014, ¶ 15. “The presumption of a

community control sanction, however, is subject to the exceptions listed in R.C.

2929.13(B)(1)(b).” Id, citing State v. Barnes, 11th Dist. Trumbull No. 2012-T-

0049, 2013-Ohio-1298, ¶ 16. R.C. 2929.13(B)(1)(6) provides:

             The court has discretion to impose a prison term upon an

             offender who is convicted of or pleads guilty to a felony

             of the fourth or fifth degree that is not an offense of violence

             or that is a qualifying assault offense if any of the following apply:

             ***

             (ix) The offender at the time of the offense was serving, or the

             offender previously had served, a prison term.

             (Emphasis added).

      {¶16} Therefore, to overcome the presumption of a community control

sanction for a fourth-or fifth-degree felony, a trial court must make findings under
Ross App. No. 19CA3683                                                                                                9


R.C. 2929.13(B)(1)(b)(i)(xi) supported in the record to have discretion to impose a

prison term. See State v. Kelly, 5th Dist. Delaware No. 13 CAA040028, 2014-

Ohio-464, ¶ 40.1

         b. R.C. 2929.11 and 2929.12.

         {¶17} “ ‘[T]rial courts have full discretion to impose a prison sentence

within the statutory range and are no longer required to make findings or give their

reasons for imposing maximum, * * * or more than the minimum sentences.’ ”

State v. Davis, 4th Dist. Highland No. 06CA21, 2007-Ohio-3944, ¶ 41, quoting

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 100.

“However, in exercising their discretion, trial courts must still consider R.C.

2929.11 and R.C. 2929.12 before imposing a sentence within the authorized

statutory range.” (Emphasis added.) Id, citing Foster at ¶ 105. R.C. 2929.11

provides that a court “shall be guided by the overriding purposes of felony

sentencing, which are to protect the public from future crime and to punish the

offender using the minimum sanctions to accomplish those purposes without


1
  The Second and Eleventh District Courts of Appeals have held that the presumption against a prison term for a
fourth-or fifth-degree felony applies only if the defendant is convicted of a single fourth- or fifth-degree felony. The
Eleventh District Court of Appeals reasoned: “If the legislature intended the presumption pertaining to community
control to apply to situations in which an offender was convicted of or pleaded guilty to multiple felonies of the
fourth or fifth degree, it could have pluralized these terms. It did not do so. As such, we construe the statute to
envelop only those situations in which a qualifying offender has been convicted of or pleaded guilty to a singular,
nonviolent felony of the fourth or fifth degree.” State v. Parrado, 11th Dist. Trumbull No. 2015-T-0069, 2016-
Ohio-1313, ¶ 23, see also State v. Boswell, 6th Dist. Erie No. E-18-053, 2019-Ohio-2949, ¶ 22 (“Based on our
review of the plain language of R.C. 2929.13(B)(1)(a), we agree with the Eleventh District that the community
control presumption contained therein applies only where the defendant pleads guilty to a singular nonviolent felony
of the fourth or fifth degree”). Although we appreciate the logic of Parrado’s holding, we decline to adopt it at this
time.
Ross App. No. 19CA3683                                                                 10


unnecessary” burdening government resources. State v. Watson 4th Dist. Meigs

Nos. 18CA20 & 18CA21, 2019-Ohio-4385, ¶ 12. “ ‘To achieve those purposes,

the sentencing court shall 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, quoting

R.C. 2929.11. “R.C. 2929.12 provides a non-exhaustive list of factors a trial court

must consider when determining the seriousness of the offense and the likelihood

that the offender will commit future offenses.” Id, citing State v. Sawyer, 4th Dist.

Meigs No. 16CA2, 2017-Ohio-1433, ¶ 17.

      c. R.C. 2929.14(C)(4).

      {¶18} If a trial court orders multiple sentences to be served consecutively,

the court must comply with R.C. 2929.14(C)(4), which requires a court to find that:

             (1) Consecutive sentences are necessary to protect the public

             from future crime or to punish the offender, (2) consecutive

             sentences are not disproportionate to the seriousness of the

             offender’s conduct and to the danger the offender poses to

             the public; and (3) that one of three circumstances * * *

             applies: * * * (a) the offender committed one or more of the

             multiple offenses while the offender was awaiting trial or

             sentencing, was under a sanction imposed pursuant to section
Ross App. No. 19CA3683                                                               11


             2929.16, 2929.17, or 2929.18 of the Revised Code, or was

             under post-release control for a prior offense [,] (b) at least

             two of the multiple offenses were committed as part of one

             or more courses of conduct, and the harm caused by two or

             more of the multiple offenses so committed was so great or

             unusual that no single prison term for any of the offenses

             committed as part of any of the courses of conduct

             adequately reflects the seriousness of the offender’s conduct[,]

             (c) the offender’s history of criminal conduct demonstrates

             that consecutive sentences are necessary to protect the

             public from future crime by the offender.” State v. Bass,

             4th Dist. Washington No. 16CA32, 2017-Ohio-7059, ¶ 8.

      {¶19} A trial court is required to make these findings “at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no

obligation to state reasons to support its findings.” State v. Brunner, 4th

Dist. Scioto Nos. 18CA3848, 18CA3849, 2019-Ohio-3410, ¶ 41, citing State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. “A word-for-

word recitation of the language of the statute is not required, and as long as the

reviewing court can discern that the trial court engaged in the correct analysis and

can determine that the record contains evidence to support the findings,
Ross App. No. 19CA3683                                                               12


consecutive sentences should be upheld.” Bonnell, 2014-Ohio-3177, ¶ 29, 140

Ohio St.3d 209, 218, 16 N.E.3d 659, 666.

                                 ANALYSIS

      a. The Trial Court Did Not Err in Rejecting the Recommended Sentence.

      {¶20} Before we address whether the trial court’s sentencing findings and

considerations are supported in the record, we will address a preliminary matter

implicitly raised in Appellant’s argument. Appellant argues that her “poor

choices” of using drugs during her release prior to sentencing and her flight from

court during her sentencing hearing did not warrant a sentence that was a sixteen-

month upward departure from the recommended eight-month sentence. However,

“ ‘ “[a] trial court does not err by imposing a sentence greater than that forming the

inducement for the defendant to plead guilty when the trial court forewarns the

defendant of the applicable penalties, including the possibility of imposing a

greater sentence than that is recommended by the prosecutor.” ’ ” State ex rel.

Duran v. Kelsey, 106 Ohio St. 3d 58, 2005-Ohio-3674, 831 N.E. 2d 450, quoting

State v. Buchanan, 154 Ohio App. 3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, at

¶13, quoting State v. Pettiford, 12th Dist. Fayette No. CA2001-08-014, 2002 WL

652371, *3.

      {¶21} At her plea hearing, the trial court informed Appellant that she could

receive more than the recommended eight-month sentence and was admonished
Ross App. No. 19CA3683                                                                 13


that using drugs or failing to appear at her sentencing could result in a greater

sentence. She chose to ignore that admonishment. The trial court did not err in

deciding not to impose the recommended eight-month sentence under Kelsey.

      b. The Trial Court’s Findings and Considerations are Supported in the

           Record.

      1.    Prison Terms.

      {¶22} In sentencing Appellant, the trial court considered in part Appellant’s

presentence investigation indicating that she had previously served a prison term.

This was sufficient to rebut the presumption of a community control sanction for a

fourth- or fifth-degree felony, and imbued the trial court with discretion to impose

the prison terms under R.C. 2929.13(B)(1)(b)(ix).

      {¶23} The trial court also stated that it relied on the “overriding principals of

felony sentencing,” including the “minimum sanctions necessary to accomplish the

purposes of felony sentencing” (R.C. 2929.11), and “considered” the “relevant

seriousness and recidivism factors” (R.C. 2929.12) in deciding that Appellant was

not amenable to community control and prison was necessary.

      {¶24} The trial court was not required to make any findings regarding the

particular length of the sentence as long as it was within the permissible statutory

range. Davis, 4th Dist. Highland No. 06CA21, 2007-Ohio-3944, ¶ 41. Both of

Appellant’s prison terms were within the statutory range. See R.C. 2929.14(A)(4)
Ross App. No. 19CA3683                                                               14


and (5) (for a fourth-degree felony the range is 6-18 months and for a fifth-degree

felony the range is 6-12 months).

      {¶25} Therefore, we find that the trial court’s consideration of R.C. 2929.11

and 2929.12 in sentencing appellant to an eighteen-month prison term for receiving

stolen property is supported by the record. We further find that the trial court’s

consideration of R.C. 2929.11 and 2929.12 in sentencing appellant to a six-month

prison term for aggravated possession of drugs is also supported in the record.

Washington, 4th Dist. Gallia No. 17CA8, 2018-Ohio-3545, ¶ 22, (Abele, J.

concurring) (“the general guidance sentencing statutes of R.C. 2929.11 and

2929.12 * * * merely require courts to “consider” the statutory factors” when

imposing a sentence).

      {¶26} Accordingly, we hold that the trial court’s findings and considerations

in sentencing Appellant to the two prison terms are supported in the record.

      2. Consecutive Sentences.

      {¶27} In ordering Appellant’s prison terms to be served consecutively, the

sentencing entry stated: consecutive service of sentences is necessary to protect

the public from future crime and to punish the [Appellant] and that consecutive

sentences are not disproportionate to the seriousness of [Appellant’s] conduct and

the danger that the [Appellant] poses to the public. Further, the Court finds that
Ross App. No. 19CA3683                                                                                             15


[Appellant’s] history of criminal conduct demonstrates that consecutive sentences

are necessary to protect the public from future crime by the [Appellant].

         {¶28} These findings are consistent with those required by R.C.

2929.14(C)(4)(b) & (c).2

                                             CONCLUSION

         {¶29} Because we find no clear and convincing evidence that the trial

court’s findings are not supported by the record, we overrule Appellant’s

assignment of error and affirm the trial court’s judgment.

                                                                        JUDGMENT AFFIRMED.




2
  While it did not recite R.C. 2929.14(C)(4)(b) word-for-word, we nevertheless discern that the trial court engaged in
the correct analysis and conclude that the record contains evidence to support the findings. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.
Ross App. No. 19CA3683                                                                16


                               JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

       The Court finds there were reasonable grounds for this appeal. It is ordered
that a special mandate issue out of this Court directing the Ross County Court of
Common Pleas to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Abele, J. and Hess, J. concur in Judgment and Opinion.

                                        For the Court,


                                        ______________________________
                                        Jason P. Smith
                                        Presiding Judge

                             NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
