[Cite as State v. Satterwhite, 2017-Ohio-6937.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 17-17-05

        v.

RONALD A. SATTERWHITE,                                     OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Sidney Municipal Court
                             Trial Court No. 16 CRB 00840

                                       Judgment Affirmed

                               Date of Decision: July 24, 2017




APPEARANCES:

        Laura E. Waymire for Appellant

        Jeffrey L. Amick for Appellee
Case No. 17-17-05


PRESTON, P.J.

         {¶1} Although originally placed on our accelerated calendar, we have elected

pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry.

Defendant-appellant, Ronald A. Satterwhite (“Satterwhite”), appeals the March 28,

2017 judgment entry of sentence of the Sidney Municipal Court of Shelby County,

Ohio. We affirm.

         {¶2} On November 28, 2016, Satterwhite was charged by complaint for the

violation of a protection order in violation of R.C. 2919.27(A)(1), a first-degree

misdemeanor. (Doc. No. 1). Subsequently, Satterwhite appeared and entered a plea

of not guilty. (Doc. No. 4). On February 14, 2017, pursuant to a negotiated plea

agreement, Satterwhite withdrew his plea of not guilty and entered a plea of guilty

to an amended charge. (Doc. Nos. 6, 8). In exchange for his change of plea, the

State agreed to amend the charge to a misdemeanor of the fourth degree disorderly

conduct in violation of R.C. 2917.11(A)(1). (Id.). The trial court amended the

charge, accepted Satterwhite’s guilty plea, found him guilty, and ordered a

presentence investigation (“PSI”). (Doc. No. 8). On March 28, 2017, the trial court

sentenced Satterwhite to 25 days in jail and ordered him to pay a $250 fine.1 (Doc.

No. 11); (Mar. 28, 2017 Tr. at 9).




1
 The trial court “suspended execution” of Satterwhite’s sentence pending the resolution of this appeal. (See
Doc. Nos. 13, 19).

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       {¶3} On March 28, 2017, Satterwhite filed a notice of appeal. (Doc. No. 14).

He raises one assignment of error for our review.

                               Assignment of Error

       The trial court erred when it sentenced Appellant without
       providing him or his counsel the opportunity to review and
       comment on the presentence investigation report violating the
       mandatory requirements of R.C. 2951.03 and Appellant’s due
       process rights.

       {¶4} In his assignment of error, Satterwhite argues that the trial court erred

by sentencing him without providing him the opportunity to review the contents of

the PSI report.

       {¶5} “We review a trial court’s sentence on a misdemeanor violation under

an abuse of discretion standard.” State v. Nolan, 3d Dist. Marion No. 9-15-48, 2016-

Ohio-2985, ¶ 12, citing R.C. 2929.22 and State v. Frazier, 158 Ohio App.3d 407,

2004-Ohio-4506, ¶ 15 (1st Dist.). An abuse of discretion implies that the trial

court’s decision was unreasonable, arbitrary, or unconscionable. State v. Adams, 62

Ohio St.2d 151, 157 (1980).

       {¶6} Notwithstanding this court’s conclusion regarding the confidentiality of

PSI reports in State v. Wooten, we conclude based on the current version of R.C.

2951.03 and Crim.R. 32.2 that, in a misdemeanor-offense case, when a PSI report

is completed and relied on by the trial court at sentencing, it is mandatory that the

trial court permit the defendant or the defendant’s trial counsel to read the report,


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or, if one of the statutory exceptions applies, provide a written or oral synopsis of

the factual information contained in the report that will be relied on in determining

the defendant’s sentence. See R.C. 2951.03(B)(1); Crim.R. 32.2. See also State v.

Wooten, 3d Dist. Crawford No. 3-94-7, 1994 WL 530694, *4 (Sept. 29, 1994).

Accord State v. Posey, 6th Dist. Ottawa No. OT-10-044, 2012-Ohio-1108, ¶ 7; State

v. Posey, 6th Dist. Ottawa No. OT-10-044, 2012-Ohio-2229, ¶ 4.

       {¶7} “A PSI report serves to inform the sentencing judge of relevant aspects

of the defendant’s history, so that the court will sentence the defendant in an

informed, responsible, and fair manner.”        Posey, 2012-Ohio-1108, at ¶ 4,

citing State v. Liming, 2d Dist. Greene No. 03CA43, 2004-Ohio-168, ¶

41, citing Machibroda v. United States, 360 F.Supp. 780 (N.D.Ohio 1973). “The

report and its contents are governed by Crim.R. 32.2 and R.C. 2951.03.” Id.

       {¶8} Crim.R. 32.2 provides that “[i]n felony cases the court shall, and in

misdemeanor cases the court may, order a presentence investigation and report * *

*.”   “Thus, in a misdemeanor case, a presentence investigation report is not

mandatory.” Posey, 2012-Ohio-2229, at ¶ 3. “[T]he legislature clearly mandated

that a defendant or his counsel have access to the factual information in the PSI

report prior to sentencing.”    Posey, 2012-Ohio-1108, at ¶ 5.        Indeed, “R.C.

2951.03(B), which pertains to presentence reports ordered pursuant to Crim.R. 32.2,

states that, except under certain circumstances, the [trial] court ‘shall permit the


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defendant or the defendant’s counsel to read the report * * *.” (Emphasis added.)

Posey, 2012-Ohio-2229, at ¶ 3, quoting R.C. 2951.03(B)(1). See also State v.

Gaspareno, 3d Dist. Marion No. 9-15-15, 2016-Ohio-990, ¶ 37 (“If a PSI is ordered,

R.C. 2951.03 gives several rights to a defendant and his or her counsel.”).

       {¶9} “Under the statute, the defendant is not permitted to read certain

information, such as any sentence recommendation, a diagnostic opinion if it might

seriously disrupt a program of rehabilitation for the defendant, promised

confidentiality for information sources, and any other information that, if disclosed,

might cause physical or other harm to the defendant or other persons.” Posey, 2012-

Ohio-1108, at ¶ 5, citing R.C. 2951.03(B)(1)(a)-(d). See also State v. Dobbelaere,

3d Dist. Defiance No. 4-08-19, 2008-Ohio-6074, ¶ 7.                “If the [trial] court

determines, however, that any information should not be disclosed, in lieu of

permitting defendant or his counsel to view the report, the court ‘shall state orally

or in writing a summary of the factual information contained in the report that will

be relied upon in determining the defendant’s sentence.’” (Emphasis added.)

Posey, 2012-Ohio-1108, at ¶ 5, quoting R.C. 2951.03(B)(3). See also Dobbelaere

at ¶ 7 (discussing the trial court’s “discretion to limit the PSI contents” and authority

“to provide an oral or written PSI summary” under R.C. 2951.03(B)(1) and (3) when

it limits the PSI contents, and noting that the trial court’s decision to limit disclosing




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the PSI contents under R.C. 2951.03(B)(1) and (3) is not appealable under R.C.

2951.03(C)).

       {¶10} At the commencement of the sentencing hearing, after the trial court

announced that it reviewed the PSI report, Satterwhite’s trial counsel informed the

trial court that neither she nor Satterwhite was “granted access to the entire report”

and requested “access to the entire report.” (Mar. 28, 2017 Tr. at 2). The trial court

denied Satterwhite’s request after concluding that R.C. “2951.03 only applies to

felonies.” (Id.).

       {¶11} The trial court erroneously concluded that R.C. 2951.03 applies only

to felony-offense cases. Instead, when the trial court orders in a misdemeanor-

offense case the preparation of a PSI report and relies on that PSI report at

sentencing, the prescriptions of R.C. 2951.03 apply to that PSI report. Accordingly,

we hold that, in a misdemeanor-offense case when a PSI is ordered and relied on at

sentencing, under R.C. 2951.03 “the trial court must give access to the PSI report,

or, in the alternative, must provide a summary if it determines full disclosure of the

report would be harmful or wholly confidential.” Posey, 2012-Ohio-1108, at ¶ 7.

       {¶12} At no time during the sentencing hearing did the trial court determine

that the PSI report was being withheld from Satterwhite and his trial counsel because

of any of the statutory factors. See R.C. 2951.03(B)(1)(a)-(d). Compare Posey,

2012-Ohio-1108, at ¶ 6 (“At no time during the sentencing hearing did the court


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make a determination that the PSI report was being withheld from counsel or

appellant because of any of the statutory factors, nor did the court provide an oral

or written summary of the factual content of the PSI report.”). Moreover, the record

reflects that the trial court relied on the PSI report in imposing Satterwhite’s

sentence. Compare Posey, 2012-Ohio-1108, at ¶ 6. Because the trial court did not

provide Satterwhite or his trial counsel access to the required portions of the PSI

report, or, in the alternative, provide an oral or written summary of the factual

content of the PSI report, Satterwhite was denied the opportunity of determining

whether any factual errors existed in the report and to refute such errors. Id. As

such, we conclude the trial court erred in denying appellant access to the PSI report,

as required by statute, prior to sentencing. Id.

       {¶13} However, this error does not amount to a reversible error. See State v.

Jackson, ___ Ohio St.3d ___, 2016-Ohio-8127, ¶ 15 (resentencing is not required

for invited or harmless error). Ohio’s criminal-harmless-error rule, Crim.R. 52(A),

provides: “[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.” “In most cases, in order to be viewed as

‘affecting substantial rights,’ ‘“the error must have been prejudicial.”’” (Emphasis

sic.) State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, ¶ 36, quoting State v.

Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, ¶ 7. “Accordingly, Crim.R. 52(A) asks




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whether the rights affected are ‘substantial’ and, if so, whether a defendant has

suffered any prejudice as a result.” Id.

       {¶14} At the sentencing hearing, Satterwhite conceded that he was “able to

see the [sentencing] recommendation” included in the PSI report. (Mar. 28, 2017

Tr. at 5). Moreover, the trial court conducted a colloquy with Satterwhite regarding

his relevant prior history. (See id. at 6-9). Our review of the record reflects that the

information contained in the sentencing recommendation and Satterwhite’s

discussion about his prior history with the trial court at the sentencing hearing are

not inconsistent with the relevant factual information contained in the PSI report.

Accordingly, we conclude that Satterwhite was not prejudiced by the trial court’s

error in denying him access to the PSI report prior to sentencing. See State v. Fry,

125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 193 (concluding that any errors at the

sentencing hearing were harmless because the record reflects the defendant’s

statements); State v. Ward, 7th Dist. Belmont No. 2017-Ohio-4381, ¶13 (“any

inaccurate statements regarding Ward’s criminal history made during sentencing

were harmless error”). Moreover, Satterwhite’s sentence falls within the statutory

range, and there is no affirmative indication that the trial court failed to consider the

factors contained in R.C. 2929.21 and 2929.22. See R.C. 2929.24(A)(4); State v.

Ramirez, 3d Dist. Seneca Nos. 13-04-30 and 13-04-31, 2005-Ohio-1430, ¶ 30-31;

Nolan, 2016-Ohio-2985, at ¶ 15; State v. Jezioro, 12th Dist. Warren No. CA2016-


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10-088, 2017-Ohio-2587, ¶ 10. As such, we conclude the trial court’s error was

harmless.

       {¶15} For these reasons, the trial court did not abuse its discretion in

imposing Satterwhite’s sentence. Satterwhite’s assignment of error is overruled.

       {¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr




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