[Cite as State v. Henry, 2020-Ohio-1040.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2019-CA-10
                                                  :
 v.                                               :   Trial Court Case No. 2019-CR-51
                                                  :
 SANDRA BROOK IVY HENRY                           :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 20th day of March, 2020.

                                             ...........

SAMUEL ADAM USMANI, Atty. Reg. No. 0097223, Assistant Prosecuting Attorney,
Champaign County Prosecutor’s Office, Appellate Division, 200 North Main Street,
Urbana, Ohio 43078
     Attorney for Plaintiff-Appellee

JENNIFER S. GETTY, Atty. Reg. No. 0074317, 7501 Paragon Road, Dayton, Ohio 45459
     Attorney for Defendant-Appellant

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




DONOVAN, J.
                                                                                        -2-


      {¶ 1} Sandra Brook Ivy Henry appeals from a March 25, 2019 judgment entry

convicting her, following her guilty plea, of one count of illegal conveyance of drugs of

abuse onto grounds of a specified governmental facility, in violation of R.C.

2921.36(A)(2)(G)(2), a felony of the third degree. The court sentenced Henry to 12

months in prison. We hereby affirm the judgment of the trial court.

      {¶ 2} Henry was indicted on February 4, 2019, and she pled not guilty on February

6, 2019. On March 19, 2019, Henry entered her guilty plea.

      {¶ 3} The trial court’s judgment reflects that a presentence investigation was not

ordered. Citing R.C. 2929.13(B)(1)(b)(xi) [sic], regarding Henry’s presentence conduct,

the court found that Henry “committed the offense while under a community control

sanction, while on probation, or while released from custody on a bond or personal

recognizance.” It further found that at the time of the offense, Henry was “on probation”

to the Madison County Municipal Court for driving under suspension, a misdemeanor of

the first degree, and she was “on bond or personal recognizance” to Franklin County

Common Pleas Court for illegal processing of drug documents, a felony of the fifth degree.

      {¶ 4} The judgment entry further stated:

      Upon evaluation of the * * * factors set forth in R.C. 2929.12, the Court finds

      that a term of imprisonment is consistent with R.C. 2929.11 * * *, to wit:

             ● Because the Defendant committed the offense after returning from

      a jail furlough.

             ● Because the Defendant committed the offense to circumvent jail

      rules regarding medication.

             ● Because Defendant’s commission of the offense posed a risk to
                                                                                             -3-


       the rehabilitative environment of the facility.

              ● Because while at the jail during the pendency of the case,

       Defendant was issued a jail disciplinary sanction for “cheeking her

       medication.”

              ● Because at the time of committing the offense, the Defendant was

       on bond for a prescription drug-related offense, Illegal Processing of Drug

       Documents, a felony of the fifth degree, from another county.

              ● The court acknowledges that the Defendant conveyed her own

       prescription medication into the jail and did not intend to cause physical

       harm to other inmates.

       {¶ 5} On appeal from her conviction, Henry asserts two assignments of error. Her

first assignment of error is as follows:

              THE TRIAL COURT ERRED IN SENTENCING MS. HENRY

       WITHOUT ORDERING A PRESENTENCE INVESTIGATION GIVEN THE

       CIRCUMSTANCES OF THIS CASE.

       {¶ 6} We initially note that, in its responsive brief, the State argues that Henry’s

appeal is moot and directs our attention to Exhibit 1. No Exhibit was attached, and on

January 16, 2020, the State filed a motion to correct the record, attached to which was

an Ohio Department of Rehabilitation and Correction (“ODRC”) printout.              The State

asserted that it sought “to include this Exhibit as if it had been filed with the original merit

brief.” The printout reflects that Henry was released from the Ohio Reformatory for

Women on January 5, 2020, and that she is currently under the supervision of the Adult

Probation Authority (“APA”). This Court’s review of the ODRC website, of which we
                                                                                         -4-


routinely take judicial notice, reflects the same status for Henry. Since Henry is under

APA supervision, her appeal is not moot.

       {¶ 7} Regarding the court’s failure to order a presentence investigation, Henry

directs our attention to Crim.R. 32.2, which provides: “Unless the defendant and the

prosecutor in the case agree to waive the presentence investigation report, the court shall,

in felony cases, order a presentence investigation and report before imposing community

control sanctions or granting probation. * * *.” (Emphasis added.) The State directs our

attention to R.C. 2951.03(A)(1), which provides: “Unless the defendant and the

prosecutor who is handling the case against the defendant agree to waive the

presentence investigation report, no person who has been convicted of or pleaded guilty

to a felony shall be placed under a community control sanction until a written presentence

investigation report has been considered by the court.”

       {¶ 8} Crim.R. 11 provides in part:

               (2) In felony cases the court may refuse to accept a plea of guilty or

       a plea of no contest, and shall not accept a plea of guilty or no contest

       without first addressing the defendant personally and doing all of the

       following:

              ***

              (b) Informing the defendant of and determining that the defendant

       understands * * * that the court, upon acceptance of the plea, may proceed

       with judgment and sentence.

See State v. Driscoll, 2d Dist. Clark No. 2008 CA 93, 2009-Ohio-6134, ¶ 65, citing State

v. Cyrus, 63 Ohio St.3d 164, 586 N.E.2d 94 (1992) (“A trial court is not required to order
                                                                                            -5-


a presentence report pursuant to Crim.R. 32.2(A) in a felony case when probation is not

granted.).

      {¶ 9} The transcript of the plea hearing reflects the following exchange:

             THE COURT: Count One is illegal conveyance of drugs of abuse

      onto the grounds of a specified governmental facility.        It’s a felony of the

      third degree. It carries a maximum 36 months in prison and a maximum

      fine of $10,000. Do you understand that?

             THE WITNESS: Yes, sir.

             ***

             THE COURT: Your lawyer and the Prosecutor may have talked to

      each other about this case. I haven’t been involved in their discussions. I

      haven’t told anyone what I will do regarding sentencing. The only thing that

      the lawyers know is that I’ll seek to follow the law. Do you understand that?

             THE WITNESS: Yes, sir.

             THE COURT:        At the time of sentencing the Court must decide

      whether to impose community control or prison. Community control means

      probation. It can last for five years. It’s a period of time where the Court

      supervises your life. The Court can determine where you can live, with

      whom you can live, whether to impose a curfew, suspend your driver’s

      license, impose a no contact order, require you to perform community

      service, pay fines or court costs, or spend time in jail or a residential facility.

      Do you understand that?

             THE WITNESS: Yes, sir.
                                                                                          -6-


              ***

              THE COURT: Do you understand that if the Court accepts your plea

       of guilt, you can be sentenced immediately?”

              THE WITNESS: Yes, sir.

       {¶ 10} The above colloquy was marginally sufficient to inform Henry that the court

was not required to follow the State’s recommendation of community control. The better

practice would have been to inform her more explicitly. Furthermore, although the law

does not require it, when a defendant reasonably expects a presentence investigation will

be ordered, the preferred practice would be to inform the defendant that one is not

required.   Otherwise, it may appear that community control was never a true

consideration.

       {¶ 11} Nevertheless, based upon the foregoing facts and applicable law, we

conclude that Henry’s first assignment of error lacks merit, and it is accordingly overruled.

       {¶ 12} Henry’s second assignment of error is as follows:

              THE TRIAL COURT ERRED IN SENTENCING MS. HENRY TO

       PRISON AND NOT CONSIDERING COMMUNITY CONTROL.

       {¶ 13} As this Court has previously noted:

              In reviewing felony sentences, appellate courts must apply the

       standard of 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
                                                                                           -7-


      (1) that the record does not support certain specified findings or (2) that the

      sentence imposed is contrary to law.

             In determining the sentence for an individual offense, 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 a maximum or more than minimum sentence. 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 criteria 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.

State v. Lambert, 2d Dist. Champaign No. 2018-CA-28, 2019-Ohio-2837, ¶ 8-9.

      {¶ 14} Henry’s sentence of 12 months was within the statutory range for a felony

of the third degree. R.C. 2929.14(A)(3)(b). The judgment entry reflects that the trial

court considered all relevant factors in imposing sentence, including the factors in R.C.

2929.11 and R.C. 2929.12.       The court was not required to make certain specified
                                                                                         -8-


findings in imposing sentence. 1 Accordingly, Henry’s second assignment of error is

overruled.

       {¶ 15} The judgment of the trial court is affirmed.



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



TUCKER, P.J. and HALL, J., concur.



Copies sent to:

Samuel Adam Usmani
Jennifer S. Getty
Hon. Nick A. Selvaggio




1
 We note that while the trial court cited R.C. 2929.13(B)(1)(b), that section applies to an
offender who commits a felony of the fourth or fifth degree. It provides:
              ***
              (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:
              ***
              (x) 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.
