[Cite as State v. Riggleman, 2013-Ohio-5006.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   :   JUDGES:
                                                :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :
DAVID S. RIGGLEMAN                              :   Case No. 13-CA-43
                                                :
        Defendant-Appellant                     :   OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No.12 CR 00224



JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   November 12, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

EARL L. FROST                                       SHEENA SJÖSTRAND-POST
20 South Second Street                              33 West Main Street
4th Floor                                           Suite 106A
Newark, OH 43055                                    P.O. Box 93
                                                    Newark, OH 43058-093
Licking County, Case No. 13-CA-43                                                        2

Farmer, P.J.

       {¶1}     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.

       {¶2}     A jury trial commenced on April 4, 2013. The jury found appellant guilty as

charged.      By judgment of sentence filed April 30, 2013, the trial court sentenced

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

       {¶3}     Prior to his sentencing, appellant pled guilty to three misdemeanor

offenses in municipal court. Appellant was placed on probation for one year. Also, in a

separate case, appellant was charged with various offenses, two felonies in the third

and fifth degrees and to misdemeanors in the first and fourth degrees. This case was

pending at the time of appellant's sentencing sub judice.

       {¶4}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶5}     "THE    TRIAL     COURT'S          SENTENCE    WAS      CLEARLY       AND

CONVINCINGLY CONTRARY TO LAW AND CONSTITUTED AN ABUSE OF

DISCRETION DEPRIVING APPELLANT OF DUE PROCESS CONTRARY TO THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

CORRESPONDING RIGHTS UNDER THE OHIO CONSTITUTION."

                                              II

       {¶6}     "THE    TRIAL    COURT      ERRED      IN   IMPOSING      CONSECUTIVE

SENTENCES WITHOUT MAKING THE REQUIRED FINDINGS THAT COMPORT
Licking County, Case No. 13-CA-43                                                       3


WITH R.C. 2929.14(C)(4) DEPRIVING APPELLANT OF DUE PROCESS CONTRARY

TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND CORRESPONDING RIGHTS UNDER THE OHIO CONSTITUTION."

                                              I

      {¶7}   Appellant claims his sentence to prison was contrary to law as the trial

court's reasons for the prison sentence do not overcome the presumption for community

control for fourth degree felonies. We agree.

      {¶8}   Appellant was convicted of two counts of aggravated trafficking in drugs in

violation of R.C. 2925.03, both felonies of the fourth degree. By judgment of sentence

filed April 30, 2013, the trial court sentenced appellant to twelve months on each count,

to be served consecutively.

      {¶9}   R.C. 2929.13 governs sentencing guidelines for various specific offenses

and degrees of offenses. Subsection (B)(1)(a)(i)-(iv) state the following:



             (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.
Licking County, Case No. 13-CA-43                                                       4


                (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.

       (Emphasis added.)



       {¶10} During the sentencing hearing on April 30, 2013, the trial court articulated

the following reasons for imposing a prison sentence as opposed to community control

(T. at 9-11):



                I'm going to impose a prison term of 12 months on each count. I'm

       going to order that those counts be served consecutively.

                Here's why: You, while on bond, apparently have engaged in new

       felony conduct. And I'm not being judgmental about that, but, according to

       the PSI, there are statements there that incriminate you in those offenses.

                And you have shown to me that the presumption in favor of

       concurrent sentences should be and is overcome in this case by your

       conduct on pretrial, by the fact that you blew off your interview with the
Licking County, Case No. 13-CA-43                                                      5


      probation officer to prepare the - - the - - the PSI. A condition of your bond

      after the guilty verdicts were (sic) that you cooperate with the preparation

      of the PSI. So you've not only disregarded my order, you've violated a

      condition of your bond while awaiting sentencing.

             And I find that it is necessary to protect the public and to punish the

      offender, that consecutive sentences are not disproportionate; and I'd find,

      as I've just indicated, that the - - these offenses for which you are being

      sentenced were committed while you were on a term of community control

      through the Probation Department, is that right, or Municipal Court?

             ***

             Let me correct that then. I find that - - that the - - a single term in

      this case would not adequately reflect the seriousness of the conduct here

      in light of his subsequent conduct while on pretrial in this case and on

      pretrial supervision and post-trial bond. So, you know, in referring to the

      new charges that have been returned and his complete disregard to

      cooperate with the preparation of the Presentence Investigation Report

      after I told him in court that he had to do that. So that's why I'm imposing

      a consecutive sentence here with regard to Counts 1 and 2. It's a total

      stated prison term of two years.



      {¶11} None of the trial court's reasons comport with R.C. 2929.13(B)(1). The

record does not indicate that appellant was ever convicted of or pleaded guilty to a

felony offense. R.C. 2929.13(B)(1)(a)(i). The recent felony charge in the third degree
Licking County, Case No. 13-CA-43                                                    6


against appellant had yet to be resolved and therefore could not be used under the

statute. The most serious charge against appellant at the time of sentencing was a

felony in the fourth degree.   R.C. 2929.13(B)(1)(a)(ii).   The fact that appellant was

sentenced to probation for pleading guilty to three misdemeanors in municipal court was

not sufficient to disqualify R.C. 2929.13(B). The misdemeanors were not offenses of

violence (possessing criminal tools, attempted theft, and criminal damaging).     R.C.

2929.13(B)(1)(a)(iv).

      {¶12} Upon review, we find the trial court erred in sentencing appellant to a

prison term. The matter is reversed and remanded for resentencing pursuant to R.C.

2929.13(B).

      {¶13} Assignment of Error I is granted.

                                           II

      {¶14} Appellant claims the trial court erred in imposing consecutive sentences.

Based upon our ruling in Assignment of Error I, this assignment is moot.
Licking County, Case No. 13-CA-43                                             7


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

hereby reversed.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.




                                       _______________________________
                                       Hon. Sheila G. Farmer



                                       _______________________________
                                       Hon. John W. Wise



                                       _______________________________
                                       Hon. Patricia A. Delaney


SGF/sg 1017
[Cite as State v. Riggleman, 2013-Ohio-5006.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
DAVID S. RIGGLEMAN                              :
                                                :
        Defendant-Appellant                     :       CASE NO. 13-CA-43




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is reversed, and the

matter is remanded to said court for resentencing pursuant to R.C. 2929.13(B). Costs

to appellee.




                                                _______________________________
                                                Hon. Sheila G. Farmer



                                                _______________________________
                                                Hon. John W. Wise



                                                _______________________________
                                                Hon. Patricia A. Delaney
