[Cite as State v. Waggoner, 2020-Ohio-212.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 28453
                                                    :
 v.                                                 :   Trial Court Case No. 2019-CR-1149
                                                    :
 ANDRE R. WAGGONER                                  :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 24th day of January, 2020.

                                               ...........

MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
      Attorney for Defendant-Appellant

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

FROELICH, J.
                                                                                       -2-


       {¶ 1} Following his guilty plea to a single count of theft in violation of R.C.

2913.02(A)(1), Andre R. Waggoner was sentenced to a prison term of 11 months. He

appeals from his conviction. The judgment of the trial court will be affirmed.

                         Factual and Procedural Background

       {¶ 2} In May 2019, Waggoner was indicted by a Montgomery County grand jury on

a fifth-degree felony charge of theft of chainsaws having a value of $1,000 or more but

less than $7,500, in violation of R.C. 2913.02(A)(1). On June 14, 2019, Waggoner entered

a plea of guilty to that charge, and the trial court referred the matter for a presentence

investigation (“PSI”). While he awaited sentencing, Waggoner was held on two unrelated

theft offenses from the Miamisburg Municipal Court. (See Tr. p. 6).

       {¶ 3} The PSI revealed that Waggoner had an extensive criminal record as an

adult, including at least 36 misdemeanor theft offenses and three felony offenses between

December 1992 and October 2018. The PSI report stated that two prior sentences to

community control were revoked and prison sentences imposed due to Waggoner’s

“poor” compliance. Waggoner also reported a history of abusing alcohol, cocaine, and

crack prior to his most recent incarceration.

       {¶ 4} At Waggoner’s June 24, 2019 sentencing, his defense attorney indicated that

Waggoner wished “to go to the STOP program” for this case as well as his unserved

municipal court sentences. (Tr. p. 2). Speaking on his own behalf, Waggoner stated that

he was “dealing with grieving” after the death of his 17-year-old daughter in 2015 and was

“scared” because “[t]hey found a spot on my lung” in September 2018. (Id., pp. 2-3).

       {¶ 5} The trial court responded:

              The difficulty, of course, Mr. Waggoner, is your criminal history; you
                                                                                           -3-


       know, the very lengthy theft-related criminal history that goes back for a

       really long period of time.

               And so in considering the purposes and principles of sentencing and

       the seriousness and recidivism factors in the Revised Code, the Court is

       going to sentence Mr. Waggoner to serve 11 months of incarceration in the

       State of Ohio prison system.

               ***

               The Court will disapprove of defendant’s placement in programs of

       shock incarceration and intensive program prison based on the defendant’s

       criminal history.

(Tr. pp. 3, 4-5).

       {¶ 6} Consistent with that oral pronouncement, the trial court’s written judgment

entry sentenced Waggoner to 11 months in prison and ordered him to pay restitution.

       {¶ 7} Waggoner appeals from that judgment, asserting as his sole assignment of

error that “[t]he trial court erred in sentencing the defendant.” He identifies three specific

respects in which the court allegedly erred: 1) by failing to send him to STOP,1 2) because

“a prison sentence was prohibited”; and 3) by “giving only a summary conclusion instead

of adequate reasons” for denying him placement in a program of shock incarceration or

an intensive program prison.

                                     Standard of Review

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


1
 Montgomery County’s Secure Transitional Offender Program (“STOP”) is a residential
rehabilitation facility for offenders. See, e.g., State v. Akhmedov, 2d Dist. Montgomery
No. 28185, 2019-Ohio-3586, ¶ 2.
                                                                                           -4-


review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

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. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,

2017-Ohio-4097, ¶ 6.

       {¶ 9} “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.

       {¶ 10} 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, to punish the offender, and to promote the effective rehabilitation of

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)
                                                                                        -5-


further provides that “[a] sentence imposed for a felony shall be reasonably calculated to

achieve the three 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 for similar crimes committed by similar offenders.”

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

is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth

four factors indicating that an offender’s conduct is less serious than conduct normally

constituting the offense. 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, if any.

       {¶ 12} For purposes of sentencing, a court “is not confined to [considering] the

evidence that strictly relates to the conviction offense because the court is no longer

concerned * * * with the narrow issue of guilt.” State v. Bowser, 186 Ohio App.3d 162,

2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.); State v. Davis, 2d Dist. Clark No. 2018-

CA-49, 2019-Ohio-1904, ¶ 47. Sentencing courts may consider, for example, “hearsay

evidence, facts related to charges that were dismissed pursuant to a plea bargain, and

allegations contained in a PSI report.” State v. Bautista, 2d Dist. Clark No. 2015-CA-74,

2016-Ohio-5436, ¶ 12, citing State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-

Ohio-4248, ¶ 8.

                    Analysis of Defendant’s Assignment of Error

       a. Defendant’s request for STOP placement

       {¶ 13} Waggoner first argues that the trial court erred by sentencing him to prison
                                                                                         -6-


instead of granting his request that he be placed on community control sanctions and sent

to STOP. In support of that argument, Waggoner cites only to R.C. 2929.11(A),

contending that “treatment would address his problems” and he “would stop committing

theft offenses and reduce any current and future burden on state or local government

resources” if he were to receive appropriate treatment. (Brief of Appellant, p. 2).

       {¶ 14} Waggoner’s assertion that he “needs treatment” (id.) does not suffice to

establish that the trial court committed legal error by sentencing him to a prison term. The

11-month sentence imposed by the trial court was within the permissible sentencing

range for violations of R.C. 2913.02(A)(1), and the trial court opined that Waggoner’s

extensive history of prior theft offenses made him an inappropriate candidate for

alternatives to imprisonment. That conclusion is not clearly and convincingly unsupported

by the record.

       {¶ 15} R.C. 2929.13(B)(1)(b)(ix) expressly recognizes a trial court’s “discretion to

impose a prison term” on a defendant who pleads guilty to a fifth-degree felony and

“previously had served * * * a prison term.” See State v. Lawson, 2018-Ohio-1532, 111

N.E.3d 98, ¶ 16 (2d Dist.), citing State v. Robinson, 2d Dist. Champaign No. 2012 CA 17,

2012-Ohio-4976, ¶ 22, State v. Parker, 8th Dist. Cuyahoga No. 104610, 2017-Ohio-4294,

¶ 6-10. The PSI reflects that Waggoner served three prior prison terms, repeatedly re-

offended after receiving lesser sentences for theft offenses, and also failed to comply with

the conditions of community control imposed for two prior felony convictions, including by

absconding on three occasions. Further, Waggoner previously completed both STOP and

the MonDay program. Based on that criminal history, the trial court reasonably could have

concluded that Waggoner was not amenable to community control.
                                                                                       -7-


       {¶ 16} To the extent Waggoner challenges his sentence due to the trial court’s

refusal to sentence him to STOP, Waggoner’s assignment of error is overruled.

       b. Sentencing limitations of R.C. 2929.34(B)(3)(c)

       {¶ 17} Waggoner next contends that the prison term imposed by the trial court

“was prohibited under R.C. 2929.34(B)(3)(c)” because he purportedly “does not fall into

any exception” that would permit his sentence to be served in an institution operated by

the department of rehabilitation and correction. (Brief of Appellant, p. 2).

       {¶ 18} R.C. 2929.34(B)(3)(c) provides that a defendant sentenced for a fifth-

degree felony shall not serve that term in an Ohio state prison unless certain

circumstances exist. Among the enumerated exceptions is when the same defendant

“previously has been convicted of or pleaded guilty to any felony offense of violence.”

R.C. 2929.34(B)(3)(d)(ii).

       {¶ 19} According to the PSI, Waggoner was convicted of a first-degree felony

count of aggravated burglary in 1993. Aggravated burglary in violation of R.C. 2911.11

constitutes an “offense of violence” for purposes of R.C. 2929.34(B)(d)(ii). See R.C.

2901.01(A)(9)(a); see also, e.g., State v. Nagel, 84 Ohio St.3d 280, 703 N.E.2d 733

(1999); State v. Ewing, 2017-Ohio-7194, 95 N.E.3d 1112, ¶ 3 (2d Dist.).

       {¶ 20} Because Waggoner had a prior felony conviction for an offense of violence,

his sentence to a term in state prison was neither unlawful nor clearly and convincingly

unsupported by the record, and his assignment of error based on R.C. 2929.34(B)(3)(c)

is not well taken.

       c. Lack of Adequate Reasoning for Disapproving Shock Incarceration or IPP

       {¶ 21} Finally, Waggoner asserts that the trial court erred by failing to set forth
                                                                                         -8-


adequate reasons for disapproving his placement in a program of shock incarceration or

an intensive prison program (“IPP”).

       {¶ 22} Pursuant to R.C. 2929.19(D), a sentencing court that disapproves a

defendant’s placement in such programs “shall make a finding that gives its reasons for

its * * * disapproval.” As interpreted by this court,

       “R.C. 2929.19(D) requires more than that reasons can be found in the

       record to support the trial court’s disapproval of the programs; the statute

       requires that the trial court, if it shall make a recommendation, must ‘make

       a finding that gives its reasons for its recommendation or disapproval.’ This

       statutory requirement, imposed on the trial court, is not satisfied by an

       appellate court finding in the record reasons that the trial court could have

       given, or might have given, for disapproval.” State v. Allender, 2d Dist.

       Montgomery No. 24864, 2012-Ohio-2963 * * *. “The statute requires that

       the trial court provide its reasons for disapproving shock incarceration or the

       intensive program prison, not merely that the record supports reasons for

       disapproval that the trial court might have had, but did not express.” Id. at

       ¶ 26.

State v. Johnson, 2016-Ohio-5160, 69 N.E.3d 176, ¶ 25 (2d Dist.), quoting State v.

Blessing. 2d Dist. Clark No. 2011 CA 56, 2013-Ohio-392, ¶ 47.

       {¶ 23} We have held that a “general statement” indicating that the trial court based

its decision to disapprove IPP on its review of the record “does not satisfy the finding

requirement in R.C. 2929.19(D).” State v. Brandyberry, 2d Dist. Champaign No. 2015-

CA-30, 2017-Ohio-4320, ¶ 10, citing State v. Stapleton, 2d Dist. Champaign No. 2016-
                                                                                           -9-


CA-6, 2016-Ohio-7806, State v. Matthews, 2d Dist. Montgomery No. 26405, 2015-Ohio-

3388, Allender, 2d Dist. Montgomery No. 24864, 2012-Ohio-2963. However, we have

found the finding requirement satisfied where the trial court “also set forth facts in the

record that supported the trial court’s rationale for the disapproval.” Id., citing Johnson at

¶ 28-29.

       {¶ 24} In this case, the trial court stated explicitly that its disapproval of shock

incarceration or IPP for Waggoner “was based on the defendant’s criminal history” (Tr.

pp. 4-5) – i.e., his “very lengthy theft-related criminal history that goes back for a really

long period of time.” (Id., p. 3). Even if that direct statement were inadequate to satisfy

R.C. 2929.19(D), any error related to the disapproval of shock incarceration or IPP “is

necessarily harmless * * * when the defendant is not eligible for” those programs. State

v. Kendall, 2d Dist. Champaign No. 2019-CA-5, 2019-Ohio-2836, ¶ 26, citing State v.

Felton, 2d Dist. Montgomery No. 27239, 2017-Ohio-761, ¶ 29; State v. Walz, 2d Dist.

Montgomery No. 23783, 2012-Ohio-4627, ¶ 26. A prisoner is not eligible to participate in

IPP if he or she “previously has been imprisoned for * * * a felony of the first or second

degree.” R.C. 5120.032(B)(2)(a). Similarly, R.C. 5120.031 excludes from eligibility for

shock incarceration “those individuals who are ineligible to participate in an intensive

prison program.” State v. Barron, 2d Dist. Montgomery No. 25059, 2012-Ohio-5787, ¶ 9.

       {¶ 25} Waggoner’s prior conviction and imprisonment for aggravated burglary, a

felony of the first degree, made him ineligible for either IPP or shock incarceration. His

assignment of error challenging the adequacy of the trial court’s stated reasoning

therefore is overruled.
                                                                 -10-


                                      Conclusion

      {¶ 26} The judgment of the trial court will be affirmed.

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



TUCKER, P.J. and DONOVAN, J., concur.


Copies sent to:

Mathias H. Heck
Jamie J. Rizzo
Robert Alan Brenner
Hon. Mary L. Wiseman
