[Cite as State v. Wittenberg, 2017-Ohio-654.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104591




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLANT

                                                vs.

                               MARC D. WITTENBERG
                                                      DEFENDANT-APPELLEE




                                    JUDGMENT:
                               VACATED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-593183-A

        BEFORE: Laster Mays, J., Keough, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: February 23, 2017
                               -i-
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Anthony T. Miranda
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



ATTORNEYS FOR APPELLEE

Roger M. Synenberg
Dominic J. Coletta
Clare Moran
Synenberg & Associates
55 Public Square, Suite 1331
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Plaintiff-appellant state of Ohio appeals the trial court’s decision to sentence

defendant-appellee Marc Wittenberg (“Wittenberg”) to community control sanctions

instead of imprisonment and asks this court to remand for the trial court to state its

findings under R.C. 2929.13 justifying a sentence of community control sanctions instead

of a term of imprisonment.    We remand to the trial court.

I.     Facts

       {¶2} After executing a search warrant on Wittenberg’s home, the Southeast Area

Law Enforcement Task Force recovered approximately 8,800 grams of marijuana and 900

grams of packaged hashish. Wittenberg was subsequently charged with trafficking in

drugs, drug possession, and possessing criminal tools.         Each of these counts had

one-year firearm, schoolyard, and juvenile specifications.    As part of a plea agreement

entered into with the state, Wittenberg pleaded guilty to two counts of trafficking in

drugs, a third-degree felony, in violation of R.C. 2925.03(A)(2), and one count of

possessing criminal tools, a fifth-degree felony, in violation of R.C. 2923.24(A).

       {¶3} Defense counsel submitted a sentencing memorandum to the state and the

trial court.   After the state and defense counsel presented statements at sentencing, the

trial court sentenced Wittenberg to 12 months of community control sanctions and

imposed a $5,000 fine and court costs. The state timely filed this appeal and assigns two

errors for our review:
        I.    The trial court erred in imposing community control because there
        was a presumption of prison, and the trial court did not make any findings
        under R.C. 2929.13 justifying a departure from that presumption; and

        II.    The trial court erred in imposing community control because there
        was a presumption of prison, and Wittenberg’s conduct was more serious
        than conduct normally constituting the offense.

We will address the first assignment of error because it is dispositive of this appeal.


II.     Sentencing

        A.     Standard of Review

        {¶4} The Ohio Supreme Court has determined that “an appellate court may vacate

or modify any sentence that is not clearly and convincingly contrary to law only if the

appellate court finds by clear and convincing evidence that the record does not support

the sentence.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 23.

        Clear and convincing evidence is that measure or degree of proof which is
        more than a mere “preponderance of the evidence,” but not to the extent of
        such certainty as is required “beyond a reasonable doubt” in criminal cases,
        and which will produce in the mind of the trier of facts a firm belief or
        conviction as to the facts sought to be established.

Id. at ¶ 22.
       B.     Law and Analysis

       {¶5} In the state’s assignments of error, the state argues that the trial court erred in

imposing community control because there was a presumption of prison, and the trial

court did not make any findings under R.C. 2929.13 justifying a departure from that

presumption. The state also contends that the trial court erred in imposing community

control because there was a presumption of prison, and Wittenberg’s conduct was more

serious than conduct normally constituting the offense. R.C. 2925.03(C)(1)(c) states,

“aggravated trafficking in drugs is a felony of the third degree, and, except as otherwise

provided in this division, there is a presumption for a prison term for the offense.”

       {¶6} To defeat the presumption, the trial court must conduct the following

analysis:

       [T]he sentencing court may impose a community control sanction or a
       combination of community control sanctions instead of a prison term on an
       offender for a felony * * * that is a violation of any provision of Chapter
       2925 * * * of the Revised Code for which a presumption in favor of a
       prison term is specified as being applicable if it makes both of the following
       findings:

              (a) A community control sanction or a combination of
              community control sanctions would adequately punish the
              offender and protect the public from future crime, because the
              applicable factors under section 2929.12 of the Revised Code
              indicating a lesser likelihood of recidivism outweigh the
              applicable factors under that section indicating a greater
              likelihood of recidivism.

              (b) A community control sanction or a combination of
              community control sanctions would not demean the
              seriousness of the offense, because one or more factors under
              section 2929.12 of the Revised Code that indicate that the
              offender’s conduct was less serious than conduct normally
                 constituting the offense are applicable, and they outweigh the
                 applicable factors under that section that indicate that the
                 offender’s conduct was more serious than conduct normally
                 constituting the offense.

R.C. 2929.13(D)(2).

       {¶7} After a review of the record, we find that the trial court did not make either of

the above findings on the record at sentencing.        “Specifically, the trial court did not

make findings that a sentence of community control sanctions would adequately punish

the offender and protect the public from future crime and not demean the seriousness of

the offense.” State v. Heath, 170 Ohio App.3d 366, 2007-Ohio-536, 867 N.E.2d 453, ¶

8 (8th Dist.).

       As an initial matter, we note that although the Ohio Supreme Court has held
       that judicial findings are no longer mandated in many instances, they are
       still required for downward departures, such as when a court refuses to
       impose the presumptive prison term under R.C. 2929.13(D). State v.
       Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. As stated in
       Mathis, supra: “When findings under R.C. 2929.13(D) or 2929.20(H) are
       missing from the appellate record, the appellate court shall remand the case
       to the sentencing court to state on the record the required findings pursuant
       to R.C. 2953.08(G)(1), after which the appellate court shall either affirm or
       modify the sentence, or vacate the sentence and remand the case for a
       hearing de novo if the sentence is contrary to law.”

Id. at ¶ 10.

       {¶8} We find that by clear and convincing evidence that the record does not

support that the trial court made the necessary findings to justify sentencing the appellee

to community control.      We vacate the sentence and remand this case to the trial court to

resentence appellee and state on the record the required findings pursuant to R.C.
2953.08(G)(1). As a result of this remand, the state’s second assignment of error is

moot.

        {¶9} Judgment is vacated and remanded.

        It is ordered that the appellant and appellee split costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
MARY EILEEN KILBANE, J., CONCUR
