[Cite as State v. Huffman, 2017-Ohio-4097.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 2016-CA-16
                                                    :
 v.                                                 :   T.C. NO. 16-CR-358
                                                    :
 BRYAN K. HUFFMAN                                   :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                 Rendered on the ___2nd ___ day of _____June_____, 2017.

                                               ...........

PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, 201 West
Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

SEAN J. VALLONE, Atty. Reg. No. 0064053, 5 Irongate Park Drive, Suite A, Centerville,
Ohio 45459
      Attorney for Defendant-Appellant

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

FROELICH, J.

        {¶ 1} Bryan K. Huffman pled guilty in the Miami County Court of Common Pleas to

possession of heroin, in violation of R.C. 2925.11(A)/(C)(6)(a), a felony of the fifth degree.

The trial court sentenced him to 11 months in prison, suspended his driver’s license for
                                                                                            -2-


one year, and ordered him to pay “restitution”1 of $125 to the Troy Police Department and

court costs of $257. Huffman appeals from his conviction.

       {¶ 2} According to the record, on May 26, 2016, Officer Shane Marker of the Troy

Police Department responded to a residence on a report that a male was unconscious

and barely breathing. Marker was led into a room adjacent to the living room, where he

found Huffman in a chair, slumped over the armrest toward the floor.                 Marker

straightened Huffman and observed Huffman’s lips turning blue; Marker relocated

Huffman to the living room and placed him in a seated position. The officer observed a

bulge in the front right pocket of Huffman’s jeans shorts that Marker recognized as a

hypodermic syringe. The Troy Fire Department arrived and administered Naloxone,

after which Huffman became coherent, was able to speak, and was able to keep himself

seated upright. Huffman denied that the syringe was his and refused to talk to the police.

Officer Marker collected the syringe, and Huffman was taken to the hospital for treatment.

       {¶ 3} On May 27, 2016, Huffman was charged by complaint with possession of

heroin, in violation of R.C. 2925.11(A), a fifth-degree felony.       On August 1, 2016,

Huffman waived grand jury consideration of the charge in writing and in open court. He

agreed to proceed by bill of information, waived his right to one day’s notice of the bill of

information, and pled guilty to the charge as stated in the bill of information. After a

presentence investigation, the trial court sentenced him to 11 months in prison,

suspended his driver’s license for one year, ordered him to pay court costs of $257, and

because the offense was a drug abuse offense, ordered him to pay $125 to the Troy



1
 The record reflects that this “restitution” represented the cost of drug analysis, which
may be assessed against a drug abuse offender, pursuant to R.C. 2925.511.
                                                                                           -3-


Police Department.

       {¶ 4} On appeal, Huffman’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he found

no non-frivolous issues for appeal. Counsel indicated that Huffman’s primary concern

was that he was not provided an opportunity for drug treatment. By entry, we informed

Huffman that his attorney had filed an Anders brief on his behalf and granted him 60 days

from that date to file a pro se brief. To date, no pro se brief has been filed.

       {¶ 5} As stated above, Huffman states as a potential error that the trial court did

not place him on community control with drug treatment. He asserts that the trial court’s

comment at sentencing that a prison term was appropriate to prevent him from dying of

a drug overdose was “fallacious as he could obtain substances in prison.” Huffman

acknowledges in his appellate brief that he had “died” twice from overdoses and had been

revived by medical personnel.

       {¶ 6} 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 (1) that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law.

       {¶ 7} In sentencing Huffman, the trial court made a finding under R.C.

2929.13(B)(1)(b), which provides the trial court with discretion to impose a prison term for

a fifth degree felony offense that is not an offense of violence or qualifying assault offense
                                                                                       -4-


under certain circumstances. Specifically, the trial court found that community control

was not mandatory, because Huffman was on probation at the time of the offense, R.C.

2929.13(B)(1)(b)(xi), and had previously served a prison term for a felony, R.C.

2929.13(B)(1)(b)(x).

       {¶ 8} In imposing a prison sentence, the trial court summarized its reasoning, as

follows:

       So, Mr. Huffman, here’s the bottom line. I’m sending you to prison for your

       own good. You’re not going to end up dead on my watch and quite frankly

       the only way I can guarantee that is to incarcerate you. As I indicated,

       you’ve been given every opportunity by the court system to get help, and

       yet you have failed to deal with your addiction. Multiple times services and

       assistance have been offered to you; you have not taken full advantage of

       those. So I’m going to make sure that you are clean for the next eleven

       months. And at that point * * * you will be in the position to take charge of

       your life, because no one wants to see you end up dead, so use your time

       wisely while you’re in prison, and make a commitment to breaking the cycle

       of your addiction that you’ve clearly demonstrated. You’ve got to do this

       for yourself, sir.   So after weighing the factors, the Court finds the

       defendant is not currently amenable to Community Control Sanction, that a

       prison sentence is consistent with the purposes and principles of

       sentencing.

       {¶ 9} Upon review of the presentence investigation report, we find no arguably

meritorious claim that the trial court erred in imposing an 11-month prison sentence.
                                                                                     -5-


Huffman was 29 years old at sentencing, and he had an extensive history of juvenile and

adult misdemeanor offenses.      Huffman had been placed on supervision on ten

occasions; in each instance, the supervision was revoked, and Huffman served a jail

sentence. In 2010, Huffman’s community control related to two Shelby County cases

was revoked, and he served a prison sentence.

      {¶ 10} Moreover, the presentence investigation report indicated that Huffman had

previously received substance abuse assessment and been provided opportunities for

treatment. Huffman did not successfully complete those programs, and the report stated

that he had an “unreceptive attitude toward treatment.” The PSI includes the following

comments regarding substance abuse treatment:

             MCRC Discharge Summary, dated 6/23/16, indicates that the

      Defendant was terminated from treatment due to a Miami Co. Municipal

      Court probation revocation and incarceration. The Discharge Summary

      indicates that the Defendant OD’d twice since his intake at MCRC on

      5/12/16.

             The Defendant reported that he would like to be considered for

      Vivitrol and in-patient treatment, as he “has not been offered either.” On

      8/23/16, this writer spoke with Miami County Municipal Court PO * * * who

      indicated that they will not consider the Defendant for Vivitrol/MCRC

      program through their court due to his on-going non-compliance.        On

      8/24/16, this writer confirmed that the Defendant was offered in-patient

      treatment, as a Transitional Control client, at SORTS.      His discharge

      summary indicates that he was “unreceptive to treatment,” was “stuck in the
                                                                                          -6-


      victim role,” and “blamed others for his behavior.” He attended only four

      AoD sessions, and was absent from eight AoD sessions, prior to being

      terminated from the program and returned to prison.

(Emphasis in original.) Based on the presentence investigation report, we find no non-

frivolous claim regarding the trial court’s decision to impose an 11-month prison term.

      {¶ 11} We have reviewed the entire record, including the presentence investigation

report and the transcripts of the arraignment/plea hearing and sentencing.        Having

conducted our independent review of the record pursuant to Penson v. Ohio, 488 U.S.

75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we agree with appellate counsel that there

are no non-frivolous issues for review.

      {¶ 12} The trial court’s judgment will be affirmed.

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

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Paul M. Watkins
Sean J. Vallone
Bryan K. Huffman
Hon. Jeannine N. Pratt
