[Cite as State v. Riggleman, 2014-Ohio-5369.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. William B. Hoffman, P. J.
                                                :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee     :       Hon. Sheila G. Farmer, J.
                                                :
-vs-                                            :
                                                :       Case No. 14-CA-17
DAVID RIGGLEMAN                                 :
                                                :
                    Defendant-Appellant         :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Licking County
                                                    Court of Common Pleas, Case No.
                                                    2012CR00224


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             December 2, 2014

APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

KENNETH OSWALT                                      WILLIAM CRAMER
Licking County Prosecutor                           470 Olde Worthington Road, Suite 200
BY: BRYAN MOORE                                     Westerville, OH 43085
Assistant Prosecuting Attorney
20 S. Second Street, 4th Floor
Newark, OH 43055
[Cite as State v. Riggleman, 2014-Ohio-5369.]


Gwin, J.

        {¶1}    Appellant, David S. Riggleman appeals the March 3, 2014 re-sentencing

in the Licking County Court of Common Pleas after remand from this Court.

                                         Facts and Procedural History

        {¶2}    On April 27, 2012, the Licking County Grand Jury indicted appellant, David

Riggleman, on two counts of aggravated trafficking in drugs in violation of R.C. 2925.03,

both felonies of the fourth degree.

        {¶3}    A jury trial commenced on April 4, 2013. The jury found Riggleman guilty

as charged. By judgment entry filed April 30, 2013, the trial court sentenced Riggleman

to twelve months on each count, to be served consecutively.

        {¶4}    Prior to his sentencing, Riggleman pled guilty to three misdemeanor

offenses in municipal court. Riggleman was placed on probation for one year. In

addition, in a separate case, Riggleman was charged with various offenses, two felonies

in the third and fifth degrees and two misdemeanors in the first and fourth degrees.

        {¶5}    Riggleman appealed claiming his sentence to prison was contrary to law,

as the trial court’s reasons for the prison sentence did not overcome the presumption for

community control for fourth degree felonies. This Court agreed and reversed and

remanded for resentencing pursuant to R.C. 2929.13(B). State v. Riggleman, 5th Dist.

Licking No. 13-CA-43, 2013-Ohio-5006.

        {¶6}    Riggleman was re-sentenced on March 3, 2014 and the same 2-year

sentence was imposed.

                                                Assignment of Error

        {¶7}    Riggleman raises one assignment of error,
Licking County, Case No. 14-CA-17                                                         3


      {¶8}   “I. THE TRIAL COURT VIOLATED THE RETROACTIVITY CLAUSE OF

THE OHIO CONSTITUTION AND THE EX POST FACTO CLAUSE OF THE U.S.

CONSTITUTION       BY    RETROACTIVELY         APPLYING       AMENDMENTS         TO     R.C.

2929.13(B)(1)(B)    THAT      DISQUALIFIED       APPELLANT        FROM      MANDATORY

COMMUNITY CONTROL.”

                                            Analysis

      {¶9}   Riggleman committed the underlying felonies in February 2012.

      {¶10} At that time R.C. 2929.13(B) provided,

             (B)(1)(a) Except as provided in division (B)(1)(b) of this section, 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, the court shall sentence the

      offender to a community control sanction of at least one year’s duration if

      all of the following apply:

             (i) The offender previously has not been convicted of or pleaded

      guilty to a felony offense or to an offense of violence that is a

      misdemeanor and that the offender committed within two years prior to the

      offense for which sentence is being imposed.

             (ii) The most serious charge against the offender at the time of

      sentencing is a felony of the fourth or fifth degree.

             (iii) If the court made a request of the department of rehabilitation

      and correction pursuant to division (B)(1)(c) of this section, the

      department, within the forty-five-day period specified in that division,

      provided the court with the names of, contact information for, and program
Licking County, Case No. 14-CA-17                                                        4


      details of one or more community control sanctions of at least one year’s

      duration that are available for persons sentenced by the court.

             (b) 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 if any of the following apply:

             (i) The offender committed the offense while having a firearm on or

      about the offender’s person or under the offender’s control.

             (ii) The offender caused physical harm to another person while

      committing the offense.

             (iii) The offender violated a term of the conditions of bond as set by

      the court.

             (iv) The court made a request of the department of rehabilitation

      and correction pursuant to division (B)(1)(c) of this section, and the

      department, within the forty-five-day period specified in that division, did

      not provide the court with the name of, contact information for, and

      program details of any community control sanction of at least one year’s

      duration that is available for persons sentenced by the court.

                   Riggleman was originally sentenced on April 30, 2013.

      {¶11} At that time R.C. 2929.13(B) provided,

             (B)(1)(a) Except as provided in division (B)(1)(b) of this section, 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 or that is a qualifying assault
Licking County, Case No. 14-CA-17                                                        5


      offense, the court shall sentence the offender to a community control

      sanction of at least one year’s duration if all of the following apply:

             (i) The offender previously has not been convicted of or pleaded

      guilty to a felony offense.

             (ii) The most serious charge against the offender at the time of

      sentencing is a felony of the fourth or fifth degree.

             (iii) If the court made a request of the department of rehabilitation

      and correction pursuant to division (B)(1)(c) of this section, the

      department, within the forty-five-day period specified in that division,

      provided the court with the names of, contact information for, and program

      details of one or more community control sanctions of at least one year’s

      duration that are available for persons sentenced by the court.

             (iv) The offender previously has not been convicted of or pleaded

      guilty to a misdemeanor offense of violence that the offender committed

      within two years prior to the offense for which sentence is being imposed.

             (b) 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:

             (i) The offender committed the offense while having a firearm on or

      about the offender’s person or under the offender’s control.

             (ii) If the offense is a qualifying assault offense, the offender caused

      serious physical harm to another person while committing the offense,
Licking County, Case No. 14-CA-17                                                       6


      and, if the offense is not a qualifying assault offense, the offender caused

      physical harm to another person while committing the offense.

             (iii) The offender violated a term of the conditions of bond as set by

      the court.

             (iv) The court made a request of the department of rehabilitation

      and correction pursuant to division (B)(1)(c) of this section, and the

      department, within the forty-five-day period specified in that division, did

      not provide the court with the name of, contact information for, and

      program details of any community control sanction of at least one year’s

      duration that is available for persons sentenced by the court.

             (v) The offense is a sex offense that is a fourth or fifth degree felony

      violation of any provision of Chapter 2907. of the Revised Code.

             (vi) In committing the offense, the offender attempted to cause or

      made an actual threat of physical harm to a person with a deadly weapon.

             (vii) In committing the offense, the offender attempted to cause or

      made an actual threat of physical harm to a person, and the offender

      previously was convicted of an offense that caused physical harm to a

      person.

             (viii) The offender held a public office or position of trust, and the

      offense related to that office or position; the offender’s position obliged the

      offender to prevent the offense or to bring those committing it to justice; or

      the offender’s professional reputation or position facilitated the offense or

      was likely to influence the future conduct of others.
Licking County, Case No. 14-CA-17                                                      7


             (ix) The offender committed the offense for hire or as part of an

      organized criminal activity.

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

      offender previously had served, a prison term.

             (xi) The offender committed the offense while under a community

      control sanction, while on probation, or while released from custody on a

      bond or personal recognizance.

             (c) If a court that is sentencing 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 believes that no

      community control sanctions are available for its use that, if imposed on

      the offender, will adequately fulfill the overriding principles and purposes

      of sentencing, the court shall contact the department of rehabilitation and

      correction and ask the department to provide the court with the names of,

      contact information for, and program details of one or more community

      control sanctions of at least one year’s duration that are available for

      persons sentenced by the court. Not later than forty-five days after receipt

      of a request from a court under this division, the department shall provide

      the court with the names of, contact information for, and program details of

      one or more community control sanctions of at least one year’s duration

      that are available for persons sentenced by the court, if any. Upon making

      a request under this division that relates to a particular offender, a court

      shall defer sentencing of that offender until it receives from the department
Licking County, Case No. 14-CA-17                                                       8


      the names of, contact information for, and program details of one or more

      community control sanctions of at least one year’s duration that are

      available for persons sentenced by the court or for forty-five days,

      whichever is the earlier.

                      Riggleman was re-sentenced on March 3, 2014.

      {¶12} At that time, R.C. 2929.13(B), effective September 29, 2013, provided,

             (B)(1)(a) Except as provided in division (B)(1)(b) of this section, 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 or that is a qualifying assault

      offense, the court shall sentence the offender to a community control

      sanction of at least one year’s duration if all of the following apply:

             (i) The offender previously has not been convicted of or pleaded

      guilty to a felony offense.

             (ii) The most serious charge against the offender at the time of

      sentencing is a felony of the fourth or fifth degree.

             (iii) If the court made a request of the department of rehabilitation

      and correction pursuant to division (B)(1)(c) of this section, the

      department, within the forty-five-day period specified in that division,

      provided the court with the names of, contact information for, and program

      details of one or more community control sanctions of at least one year’s

      duration that are available for persons sentenced by the court.
Licking County, Case No. 14-CA-17                                                        9


             (iv) The offender previously has not been convicted of or pleaded

      guilty to a misdemeanor offense of violence that the offender committed

      within two years prior to the offense for which sentence is being imposed.

             (b) 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:

             (i) The offender committed the offense while having a firearm on or

      about the offender’s person or under the offender’s control.

             (ii) If the offense is a qualifying assault offense, the offender caused

      serious physical harm to another person while committing the offense,

      and, if the offense is not a qualifying assault offense, the offender caused

      physical harm to another person while committing the offense.

             (iii) The offender violated a term of the conditions of bond as set by

      the court.

             (iv) The court made a request of the department of rehabilitation

      and correction pursuant to division (B)(1)(c) of this section, and the

      department, within the forty-five-day period specified in that division, did

      not provide the court with the name of, contact information for, and

      program details of any community control sanction of at least one year’s

      duration that is available for persons sentenced by the court.

             (v) The offense is a sex offense that is a fourth or fifth degree felony

      violation of any provision of Chapter 2907. of the Revised Code.
Licking County, Case No. 14-CA-17                                                       10


             (vi) In committing the offense, the offender attempted to cause or

      made an actual threat of physical harm to a person with a deadly weapon.

             (vii) In committing the offense, the offender attempted to cause or

      made an actual threat of physical harm to a person, and the offender

      previously was convicted of an offense that caused physical harm to a

      person.

             (viii) The offender held a public office or position of trust, and the

      offense related to that office or position; the offender’s position obliged the

      offender to prevent the offense or to bring those committing it to justice; or

      the offender’s professional reputation or position facilitated the offense or

      was likely to influence the future conduct of others.

             (ix) The offender committed the offense for hire or as part of an

      organized criminal activity.

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

      offender previously had served, a prison term.

             (xi) The offender committed the offense while under a community

      control sanction, while on probation, or while released from custody on a

      bond or personal recognizance.

             (c) If a court that is sentencing 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 believes that no

      community control sanctions are available for its use that, if imposed on

      the offender, will adequately fulfill the overriding principles and purposes
Licking County, Case No. 14-CA-17                                                     11


      of sentencing, the court shall contact the department of rehabilitation and

      correction and ask the department to provide the court with the names of,

      contact information for, and program details of one or more community

      control sanctions of at least one year’s duration that are available for

      persons sentenced by the court. Not later than forty-five days after receipt

      of a request from a court under this division, the department shall provide

      the court with the names of, contact information for, and program details of

      one or more community control sanctions of at least one year’s duration

      that are available for persons sentenced by the court, if any. Upon making

      a request under this division that relates to a particular offender, a court

      shall defer sentencing of that offender until it receives from the department

      the names of, contact information for, and program details of one or more

      community control sanctions of at least one year’s duration that are

      available for persons sentenced by the court or for forty-five days,

      whichever is the earlier.

                                    Ex Post Facto

      {¶13} Retroactive changes in the measure of punishment are impermissibly ex

post facto if they subject a defendant to a more severe sentence than was available at

the time of the offense. See Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81

L.Ed. 1182(1937); State v. Walls, 96 Ohio St.2d at 447, 2002–Ohio–5059, 775 N.E.2d

841, ¶ 29. A “speculative and attenuated” possibility that the statutory change has

increased the measure of punishment will not constitute an ex post facto violation.

California Dept. of Corrections v. Morales, 514 U.S. 499, 510, 115 S.Ct. 1597, 131
Licking County, Case No. 14-CA-17                                                     12


L.Ed.2d 588(1995) In other words, Riggleman must demonstrate that he had more than

a speculative chance under the old law of receiving community control sanctions

instead of prison. State v. Walls, supra, 96 Ohio St.2d at 448, 2002–Ohio–5059 at ¶ 30,

775 N.E.2d at 841. Accord, State v. Paynter, 5th Dist. Muskingum No. CT2006–0034,

2006–Ohio–5542, ¶ 32.

       {¶14} R.C. 2929.13 was amended as part of 2011 Am.Sub.H.B. No. 86. R.C.

2929.13 was amended to provide that, relevant to the case at bar, a trial court must

sentence an offender convicted of a fourth or fifth degree felony to community control

sanctions rather than prison. However, several exceptions to this presumption are

contained within 2929.13. Most notably, the presumption is defeated if the offender

violated a term of the conditions of bond. Riggleman concedes that “[t]he bond violation

exception was already in R.C. 2929.13(B)(1)(b) at the time of the offense, so the court

did not violate the Retroactivity Clause or the Ex Post Facto Clause by relying on that

exception. As a result, the court could have imposed prison based on the bond

violations without regard to the other exceptions.” [Appellant’s Brief at 3].

       {¶15} Riggleman argues, however that the trial court also relied upon the

organized criminal activity exception and the “while on community control” provision that

were not in R.C. 2929.13(B) at the time he committed the offenses. See, R.C.

2929.13(B)(1)(b)(ix) and R.C. 2929.13(B)(1)(b)(xi), effective Sept. 29, 2013. Riggleman

argues that the organized activity exception and the “while on community control”

exceptions are retroactive changes in the measure of punishment and are impermissibly

ex post facto. Riggleman contends that because the trial court relied upon these

impermissible sections in addition to the permissible exception he has been prejudiced.
Licking County, Case No. 14-CA-17                                                      13


      {¶16} The Ohio Supreme Court has recognized that “it is well-established that a

sentencing court may weigh such factors as arrests for other crimes. * * * [T]he function

of the sentencing court is to acquire a thorough grasp of the character and history of the

defendant before it. The court's consideration ought to encompass negative as well as

favorable data. Few things can be so relevant as other criminal activity of the defendant.

‘To argue that the presumption of innocence is affronted by considering unproved

criminal activity is as implausible as taking the double jeopardy clause to bar reference

to past convictions.’” State v. Burton, 52 Ohio St.2d 21, 23 (1977), quoting United States

v. Doyle, 348 F.2d 715, 721 (2nd Cir.1965).

      {¶17} In State v. Bowser the Court observed,

             [I]t is well established in Ohio law that the court may consider

      information beyond that strictly related to the conviction offense. For

      example, the statute governing the contents of a PSI report simply says,

      “[T]he officer making the report shall inquire into the circumstances of the

      offense and the criminal record, social history, and present condition of the

      defendant.” R.C. 2951.03(A). The statutory directive no doubt results in

      the sentencing court considering evidence that would be inadmissible at

      trial, State v. Davis (1978), 56 Ohio St.2d 51, 10 O.O.3d 87, 381 N.E.2d

      641—like hearsay—and results in the court considering evidence entirely

      unrelated to the conviction offense. See Gregg v. United States (1969),

      394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442. So, the court may

      consider the offender’s prior arrests, even if none yields prosecution.

      Burton at 23, 6 O.O.3d 84, 368 N.E.2d 297 (“it is well-established that a
Licking County, Case No. 14-CA-17                                                         14


       sentencing court may weigh such factors as arrests for other crimes”). The

       court may also consider facts that support a charge of which the offender

       is ultimately acquitted. State v. Wiles (1991), 59 Ohio St.3d 71, 78, 571

       N.E.2d 97, quoting United States v. Donelson (C.A.D.C.1982), 695 F.2d

       583, 590 (“‘It is well established that a sentencing judge may take into

       account facts introduced at trial relating to other charges, even ones of

       which the defendant has been acquitted’ ”).

              The court may even consider mere allegations of crimes for which

       the offender is never prosecuted. State v. Cooey (1989), 46 Ohio St.3d 20,

       35, 544 N.E.2d 895 (allegations of uncharged criminal conduct found in a

       PSI report may be considered as part of the offender’s social history).

186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714(2nd Dist), ¶15.

       {¶18} In the case at bar, the trial court could review the facts of the crime and

the circumstances of the defendant before deciding the sentence to impose.

Specifically, it was permissible for the trial court to consider the fact that there were two

separate illegal narcotic sales on separate dates. In addition, the trial court could

properly consider the fact that Riggleman was under the supervision of the Licking

County Municipal Court at the time he committed the felony offenses. In other words,

the trial court could consider these factors in exercising its discretion in deciding

whether to sentence Riggleman to prison based on the bond violation exception

contained in R.C. 2913.13(B).

       {¶19} We note that an “ex post facto inquiry does not focus ‘on whether a

legislative change produces some ambiguous sort of ‘disadvantage [.]’ Morales, 514
Licking County, Case No. 14-CA-17                                                      15

U.S. at 506, 115 S.Ct. at 1602, 131 L.Ed.2d at 595, fn. 3. State v. Rush, 83 Ohio St.3d

53, 59, 697 N.E.2d 634(1998). In the case at bar, each enactment of R.C. 2929.13(B)

contained the exception allowing the court to sentence an offender convicted of a felony

of the fourth degree to prison if the offender violated a term or condition of bond.

                                           Conclusion

       {¶20} Because the trial court’s decision was based in part upon the bond

violation exception that was contained in R.C. 2929.13(B)(1)(b) at the time the offenses

were committed, and because the trial court could properly consider information beyond

that strictly related to the conviction offense in deciding whether to impose a prison

sentence we find no ex post facto violation.

       {¶21} Riggleman’s sole assignment of error is overruled.

       {¶22} The judgment of the Court of Common Pleas, Licking County, Ohio is

affirmed.
Licking County, Case No. 14-CA-17                                                        16

Hoffman, P.J., dissenting

       {¶23} I respectfully dissent from the majority opinion.

       {¶24} I acknowledge the trial court could have chosen to sentence Appellant to

prison on the bond violation exception contained in R.C. 2913.13(B) alone. However, it

seems quite clear the trial court also improperly considered the other two exceptions

when making its decision.

       {¶25} While the trial court may well have come to the same decision based

solely on the bond violation exception, I find the better course in the interest of fairness

would be to vacate Appellant's sentence and remand the matter to the trial court to

redetermine sentence in accordance with the version of R.C. 2929.13(B) in existence at

the time of the offense. While I concede the organized criminal activity exception and

the "while on community control" exception may be considered by the court in

determining the appropriate overall sentence to be imposed, I find reference to them in

the specific determination of whether to sentence Appellant to prison instead of the

statutory preference for community control is sufficient to warrant redetermination.
