[Cite as State v. Reglus, 2012-Ohio-1174.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.       25914

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MICHAEL REGLUS                                      COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 11 01 0020

                                 DECISION AND JOURNAL ENTRY

Dated: March 21, 2012



        CARR, Presiding Judge.

        {¶1}     Appellant, Michael Reglus, appeals his convictions and sentence by the Summit

County Court of Common Pleas. This Court affirms.

                                               I.

        {¶2}     Deputy Todd Buck found marijuana, $400 cash, and a scale in Reglus’ apartment

while investigating a complaint by the Akron Metropolitan Housing Authority. Reglus was

charged with trafficking in marijuana in violation of R.C. 2925.03(A), possession of marijuana in

violation of R.C. 2925.11(A)(3), and possession of drug paraphernalia in violation of R.C.

2925.14(C)(1). Before trial, Reglus moved to suppress all of the evidence that Deputy Buck

gained as a result of searching the apartment. The trial court denied the motion, and the case

proceeded to trial. A jury found Reglus guilty of trafficking in marijuana and possession of drug

paraphernalia, and the trial court found him guilty of possession of marijuana. The trial court

sentenced Reglus to an aggregate jail term of twelve months and fined him $150 for the charge
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of possession of marijuana, which the trial court waived because he is indigent.            Reglus

appealed.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO
       SUPPRESS.

       {¶3}    Reglus’ first assignment of error is that the trial court incorrectly denied his

motion to suppress evidence that was collected as a result of Deputy Todd Buck’s observations

in his apartment. Reglus has maintained that he did not consent to Deputy Buck’s presence in

his apartment, nor did he give consent to a search of any scope.

       {¶4}    Because our review of a motion to suppress involves issues of law and fact, this

Court accepts a trial court’s findings of fact if supported by competent, credible evidence, but

reviews the trial court’s legal conclusions de novo. See State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, ¶ 8. “When considering a motion to suppress, the trial court assumes the role

of trier of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992).

       {¶5}    The Fourth Amendment to the United States Constitution and Section 14, Article

I of the Ohio Constitution prohibit unlawful searches and seizures, and searches made without a

warrant are per se unreasonable unless an established exception applies. State v. Smith, 124 Ohio

St.3d 163, 2009-Ohio-6426, ¶ 10. One such exception is consent that signifies a waiver of

constitutional rights. See State v. Akron Airport Post No. 8975, Veterans of Foreign Wars of

U.S., 19 Ohio St.3d 49, 51 (1985). Consent must be “voluntarily given, and not the result of

duress or coercion, express or implied” while “[v]oluntariness is a question of fact to be
                                                3


determined from all the circumstances[.]” Schneckloth v. Bustamonte, 412 U.S. 218, 248-249

(1973).

          {¶6}   Deputy Buck and Reglus told contradictory stories at the suppression hearing in

this case. According to Deputy Buck, he knocked on the door to Reglus’ apartment, told him

that he was there to investigate a complaint of drug activity, and asked permission to step inside.

He testified that when Reglus agreed, he entered and stayed within a few feet of the front door

while further explaining the purpose for his visit. Deputy Buck testified that he asked Reglus if

there were others in the apartment, then asked whether he could look around the apartment to

make sure, which he characterized as a standard security practice. According to Deputy Buck,

Reglus agreed. The first room that he entered was the bathroom, where he saw a clear plastic

bag containing five smaller baggies of marijuana on the floor in front of the toilet. Deputy Buck

testified that when he finished walking through the rest of the apartment to check for other

occupants, he asked Reglus about the marijuana. According to Reglus’ testimony, however,

Deputy Buck pushed his way into the apartment, put his hand on his gun, and announced that he

was searching the apartment for drugs. Reglus testified that Deputy Buck did not ask for

consent, nor was it given.

          {¶7}   The trial court determined that Deputy Buck’s testimony was more credible than

Reglus’ testimony, found that Reglus consented to the search of his apartment and that Deputy

Buck found the marijuana in plain view, and denied the motion to suppress. The trial court’s

findings of fact are supported by competent, credible evidence, which also establishes that

Deputy Buck searched the apartment pursuant to Reglus’ consent and found the marijuana

unconcealed on the bathroom floor. His first assignment of error is overruled.
                                                    4


                                 ASSIGNMENT OF ERROR II

       THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A FINDING OF GUILTY
       FOR TRAFFICKING IN DRUGS.

       {¶8}    Reglus’ second assignment of error is that his conviction for trafficking in drugs

is supported by insufficient evidence. We disagree.

       {¶9}    A challenge to the sufficiency of the evidence questions whether the evidence at

trial was sufficient as a matter of law to support the defendant’s conviction. State v. Thompkins,

78 Ohio St.3d 380, 386 (1997). “In determining whether the evidence is legally sufficient to

support the jury verdict as a matter of law, ‘[t]he relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.’” State v. Robinson, 124

Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus.

       {¶10} R.C. 2925.03(A)(2) provides that “[n]o person shall knowingly * * * [p]repare for

shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance,

when the offender knows or has reasonable cause to believe the controlled substance is intended

for sale or resale by the offender or another[.]”

       {¶11} Deputy Buck testified that he found a large, clear bag in Reglus’ apartment that

held five smaller bags. Each of these bags, in turn, contained approximately the same amount of

marijuana in such a way that they appeared to be packaged for sale. When Deputy Buck

confronted Reglus about the marijuana, Reglus handed him a green container that contained a

large bag of undivided marijuana, a digital scale on which Deputy Buck noticed some marijuana

residue, and $400 cash. Deputy Buck noted that the proximity of the scale to the larger bag of

marijuana and evidence that marijuana had been weighed on the scale led him to suspect it had
                                                  5


been used to parcel out marijuana for sale. He also testified that as he filled out his police report,

he asked Reglus “[H]ow do your customers get a hold of you[?] [D]o you have a cell phone or

home phone[?]” According to Deputy Buck, Reglus responded by saying “I hang out on the

corner.”

       {¶12} Viewing this evidence in the light most favorable to the State, a reasonable jury

could conclude that Reglus prepared and packaged the marijuana in preparation for selling it.

His conviction for trafficking in marijuana is supported by sufficient evidence, and his second

assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE VERDICT FOR TRAFFICKING IN DRUGS WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶13} Reglus’ third assignment of error is that his conviction for trafficking in drugs is

against the manifest weight of the evidence. Specifically, he has argued that the circumstantial

evidence upon which the conviction is based is not credible evidence of trafficking. When

considering whether a conviction is against the manifest weight of the evidence, this Court must:

       review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a new trial
       ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (1986).            In our analysis, we are mindful that

“[c]ircumstantial evidence and direct evidence inherently possess the same probative value.”

Jenks, 61 Ohio St.3d 259 at paragraph one of the syllabus.

       {¶14} The only witnesses at trial were Deputy Buck, who discovered the marijuana and

drug paraphernalia and arrested Reglus, and Nick Gray, the scientist who analyzed and weighed

the marijuana. Gray confirmed that the evidence seized from the apartment consisted of one
                                                 6


large bag of marijuana and five smaller bags that weighed about one gram each. Deputy Buck

admitted that he did not witness Reglus selling drugs, but emphasized that when Reglus said he

“hang[s] out on the corner,” it was in response to a question about whether his customers

contacted him by telephone. He also emphasized that it was the proximity of the cash and the

scale to each other and to the marijuana that piqued his interest.

       {¶15} This Court has reviewed the entire record and weighed the evidence and has

concluded that the evidence against Reglus with respect to the drug trafficking conviction,

although circumstantial, does not lead to the conclusion that the jury lost its way. Reglus’ third

assignment of error is overruled.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING
       APPELLANT CONTRARY TO THE PROVISIONS OF R.C. 2929.13, R.C.
       2929.19, AND WITHOUT THE BENEFIT OF A PRE-SENTENCE
       INVESTIGATION, TO THE MAXIMUM PRISON SENTENCE FOR A FIFTH
       DEGREE FELONY.

       {¶16} Reglus’ final assignment of error is that the trial court incorrectly sentenced him

to prison rather than community control. We disagree.

       {¶17} This Court reviews felony sentencing under a two-step analysis. State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. In the first step, we determine whether the sentence is

“clearly and convincingly contrary to law,” with reference to all of the applicable statutes. Id. In

the second step, we review the imposition of sentence for an abuse of the trial court’s discretion.

Id.

       {¶18} Felony sentencing is guided by the purposes described in R.C. 2929.11(A), which

provides:

       The overriding purposes of felony sentencing are to protect the public from future
       crime by the offender and others and to punish the offender using the minimum
                                                 7


       sanctions that the court determines accomplish those purposes without imposing
       an unnecessary burden on state or local government resources. To achieve those
       purposes, the sentencing court shall 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.

R.C. 2929.12(A) explains that “[u]nless otherwise required by section 2929.13 or 2929.14 of the

Revised Code, a court that imposes a sentence under this chapter upon an offender for a felony

has discretion to determine the most effective way to comply with the purposes and principles of

sentencing.” Because Reglus was convicted of trafficking in marijuana and other sentencing

factors specified in R.C. 2925.03(C)(3) do not apply, his sentence is determined in accordance

with R.C. 2929.13(B). See R.C. 2925.03(C)(3); R.C. 2929.13(E)(1). In that respect, the Ohio

Supreme Court recently explained the interaction of the sentencing statutes1 with respect to

fourth- and fifth-degree felonies:

       Consistent with the sentencing principles set forth in R.C. 2929.11, R.C.
       2929.13(B)(1)(a) through (i) sets forth nine factors that a trial court must consider
       in sentencing an offender for fourth- and fifth-degree felonies. If a trial court does
       not make any of the findings in R.C. 2929.13(B)(1)(a) through (i), then an
       offender is sentenced pursuant to R.C. 2929.13(B)(2)(b), and if the court
       considers it appropriate, community control is the default sentence (except for
       those offenses identified as mandatory-prison offenses). * * * However, if the
       trial court makes any of the findings set forth in R.C. 2929.13(B)(1)(a) through
       (i), then an offender is sentenced under R.C. 2929.13(B)(2)(a). After considering
       the seriousness and recidivism factors set forth in R.C. 2929.12, if the court finds
       that a prison term is consistent with the principles and purposes of felony
       sentencing and that an offender is not amenable to community control, then the
       court shall impose a prison term upon the offender. Thus, although it does not
       preclude the imposition of community-control sanctions, a finding of any of the
       factors set forth in R.C. 2929.13(B)(1)(a) through (i) weighs against the
       preference for community control and may justify incarceration.

(Internal citations omitted.)   State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, ¶ 8

(applying former R.C. 2929.13). R.C. 2929.13(B) does not create a presumption in favor of



       1
         R.C. 2929.13 was amended by H.B. 86, effective September 30, 2011. Reglus was
sentenced under the previous version of the statute.
                                                 8


community control, and although the statute permits findings of fact, they are not required before

a prison term is imposed for a fourth- or fifth-degree felony. Massien at ¶ 8.

       {¶19} A trial court may, therefore, sentence an offender to a prison term in lieu of

community control for a fifth-degree felony, even if none of the considerations mentioned in

R.C. 2929.13(B)(1) are present, if the trial court determines that a community control sanction

would not be consistent with the purposes and principles of felony sentencing under R.C.

2929.12. See R.C. 2929.13(B)(2)(b). Reglus makes two arguments in support of his position

that his sentence is contrary to law. First, he has argued that R.C. 2929.19(B)(2)(a) required the

trial court to state the reasons for imposing a prison term on the record. Although trial courts

must “carefully consider” the statutes that apply to felony sentencing, they are “no longer

compelled to make findings and give reasons at the sentencing hearing because R.C.

2929.19(B)(2) has been excised.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.

Reglus’ second argument is that the trial court should not have sentenced him without ordering a

presentence investigation. Under R.C. 2951.03, however, a presentence investigation report is

not required before an offender is sentenced to prison. See State v. Leonard, 8th Dist. No.

88299, 2007-Ohio-3745, ¶ 15.

       {¶20} Reglus’ sentence is not clearly and convincingly contrary to law. It is also not

grounded in an abuse of the trial court’s discretion. The trial court had “full discretion to impose

a prison sentence within the statutory range[.]” Mathis at paragraph three of the syllabus.

Noting that this was not Reglus’ first drug offense and that it occurred in flagrant violation of the

rules of his Section 8 housing, the trial court determined that a one-year prison term was

appropriate. This sentence does not reflect an abuse of discretion.

       {¶21} Reglus’ fourth assignment of error is overruled.
                                                 9


                                                III.

       {¶22} Reglus’ assignments of error are overruled, and the judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT



MOORE, J.
DICKINSON, J.
CONCUR.
                                       10


APPEARANCES:

JAMES W. ARMSTRONG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
