[Cite as State v. Grace, 2019-Ohio-3812.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     SANDUSKY COUNTY


State of Ohio                                     Court of Appeals No. S-18-044

        Appellee                                  Trial Court No. 18 CR 563

v.

Jayme L. Grace                                    DECISION AND JUDGMENT

        Appellant                                 Decided: September 20, 2019


                                              *****

        Timothy Braun, Sandusky County Prosecuting Attorney, and
        Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

        James H. Ellis, III, for appellant.

                                              *****

        MAYLE, P.J.,

        {¶ 1} This is an appeal from an October 9, 2018 judgment of the Sandusky County

Court of Common Pleas that sentenced the defendant-appellant, Jayme L. Grace, to three

concurrent 12-month prison terms for two counts of trafficking in heroin and one count of

aggravated possession of drugs―all felonies of the fifth degree―after the court found
that Grace had violated the terms of her Intervention in Lieu of Conviction (ILC) by

testing positive for drugs. Grace argues that the trial court violated multiple sentencing

statutes in imposing a prison term rather than community control. Finding no error, we

affirm.

                               Facts and Procedural History

          {¶ 2} The following undisputed facts are relevant to this appeal. On May 22,

2018, Grace was indicted on two counts of trafficking in heroin, in violation of R.C.

2925.03(A)(1)(C)(6)(a), and a single count of aggravated possession of drugs, in

violation of R.C. 2925.11(A) and (C)(1)(a)―all felonies of the fifth degree. According

to the record, Grace sold heroin to an undercover Fremont Police Officer on January 27,

2017 and again on February 23, 2017. On the latter date, Grace was also found with .21

grams of Fentanyl in her possession.

          {¶ 3} Grace moved for Intervention in Lieu of Conviction pursuant to R.C.

2951.041. A change of plea hearing was held on July 30, 2018, at which the court found

that Grace was eligible to participate in the program. The court accepted Grace’s guilty

plea but did not make any findings. Instead, it stayed all criminal proceedings pending

her compliance with the terms of her intervention plan, and placed her under the control

of the Sandusky County Community Control Department for a period of three years. The

court advised Grace that “[i]f you * * * test positive for drugs, that is a violation, and

you’ll go to prison” and that she faced a maximum possible penalty of 36 months in

prison if convicted, i.e. 12 months for each count.



2.
       {¶ 4} That same day, Grace signed and initialed “The General Rules and

Conditions of Probation of The Sandusky County Common Pleas Court,” which

incorrectly stated that the trial court had placed her under community control when, in

fact, the court had granted her request for intervention in lieu of conviction. Regardless,

it appears from our review of the record that the court (and parties) collectively

understood that this ill-fitting probation form was intended to function as Grace’s

“intervention plan” under R.C. 2951.041(D).1 Relevant to this appeal, paragraph one of

this form required Grace to comply with all federal, state, and local laws, and paragraph

four provided that Grace “SHALL not use, possess, purchase, sell or distribute any

controlled substance” and that she was “subject to testing for the detection of illegal/legal

drug usage or alcohol consumption.”




1
  Intervention in lieu of conviction is not synonymous with community control (f.k.a.
“probation”). Intervention in lieu of conviction is governed entirely by R.C. 2951.041,
which lays out a procedure by which the trial court stays all criminal proceedings, orders
the offender to comply with the terms and conditions of a specifically-tailored
“intervention plan,” and places the offender under the general control and supervision of
the county probation department or another comparable agency during the duration of the
intervention plan. Under R.C. 2951.041(D), the offender’s intervention plan may include
“terms and conditions similar to community control sanctions,” and the offender is
placed under the supervision of the probation department of the appropriate county “as if
the offender was subject to a community control sanction.” R.C. 2951.041(D) (emphasis
added). See generally, State v. Trimpe, 6th Dist. Wood No. WD-18-048, 2019-Ohio-
3017, ¶ 24 (Noting that under R.C. 2951.041, “the offender is not actually ‘subject to a
community control sanction’ during intervention” because community control is a
“sanction,” defined by R.C. 2929.01(DD), whereas intervention in lieu of conviction is
not punishment but rather “an opportunity for first time offenders to receive help with
their dependency without the ramification of a felony conviction.”).

3.
       {¶ 5} On September 4, 2018, the state filed a “Notice of Probation Violation,”

which incorrectly stated that Grace “was placed on community control for a period of (3)

years.” The notice also states that Grace had “violated Rule #4 of the terms and

conditions of her probation rules” by testing positive for Heroin, Percocet, and Fentanyl

on September 4, 2018.

       {¶ 6} On September 7, 2018, Grace appeared before the court, without an attorney,

for a hearing on her alleged “probation violation.” The court noted that the parties were

appearing “on a notice of probation violation, the allegation being that on September 4th,

2018 you admitted to abusing heroin and Percocet; further that you did test positive for

Fentanyl in violation of your conditions under the Intervention program.” Grace denied

the allegations and requested a lawyer. The court granted her request, and continued the

matter so that an attorney could be appointed. The court released Grace on her own

recognizance, with an ankle monitor in place, and told her, “[s]hould you test positive

one more time, you will go to jail. I will act on your guilty plea. I will make a finding,

and we’ll see where it goes from there, but – Fentanyl scares me. I would hope that it

scares you.”

       {¶ 7} On September 24, 2018, the state filed another “Notice of Probation

Violation,” which, again, incorrectly stated that Grace “was placed on community control

for a period of (3) years.” The notice states that Grace had “violated Rule #1 and #4 of

the terms and conditions of her probation rules” by testing positive for Fentanyl and

Buprenorphine on September 6, 2018, and testing positive for Oxycodone on September

14, 2018.

4.
       On October 3, 2018, Grace appeared before the court for hearing, this time with

counsel. She admitted the “violations,” as alleged by the state, but asked the court to

continue her ILC. The state requested that the court enter a finding on the previously-

entered guilty plea and proceed to sentencing. The trial court denied Grace’s request to

continue on Intervention, found her guilty of the felonies, and stated that it was “going to

impose the underlying [prison] sentence.” At the urging of the prosecutor, defense

counsel, and Grace, however, the court continued the matter for one week.

       {¶ 8} When sentencing resumed on October 9, 2018, the court imposed three, 12-

month prison terms, one for each count, to be served concurrently. Grace appealed and

asserts a single assignment of error:

                ASSIGNMENT OF ERROR: The trial court erred by failing to

       comply with applicable statutes in sentencing the appellant.

                                   Law and Argument

       {¶ 9} Grace does not challenge her removal from the ILC program. Instead, she

claims that, following her removal and conviction on the underlying felonies, the trial

court erred by sentencing her to prison. Specifically, Grace argues that the trial court

abused its discretion by imposing three, 12-month prison terms, to be served

concurrently.

       {¶ 10} “[A]ppellate courts may not apply [an] abuse-of-discretion standard in

sentencing-term challenges.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 10. Instead, we review such sentencing challenges under R.C.

2953.08(G)(2). This statute allows an appellate court to increase, reduce, or otherwise

5.
modify a sentence or vacate the sentence and remand the matter for resentencing only if it

clearly and convincingly finds either of the following:

              (a) That the record does not support the sentencing court’s findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law. R.C.

       2953.08(G)(2).

       {¶ 11} A sentence is not clearly and convincingly contrary to law where the trial

court has considered the purposes and principles of sentencing under R.C. 2929.11 and

the seriousness and recidivism factors under R.C. 2929.12, properly applied postrelease

control, and imposed a sentence within the statutory range. State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See also State v. Tammerine, 6th Dist. Lucas

No. L-13-1081, 2014-Ohio-425, ¶ 15-16 (Noting that while R.C. 2953.08(G)(2) prohibits

courts from applying the abuse of discretion standard, as set forth in Kalish, that Kalish

“may still be utilized [for purposes of] determining whether a sentence is clearly and

convincingly contrary to law.”). If the appellate court finds that a sentence is not clearly

and convincingly contrary to law, it may vacate or modify the sentence “only if the

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

the sentence.” Marcum at ¶ 23.

       {¶ 12} Grace argues that the trial court erred by imposing a prison term, rather

than a community control sanction, under R.C. 2929.13(B)(1)(a). Grace also argues that

6.
the trial court failed to consider the principles and purposes of felony sentencing under

R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, and that it

erred by imposing the “maximum” sentences allowed. We address each argument below.

       {¶ 13} R.C. 2929.13(B)(1), as effective during the relevant time period, provides,

              (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.

              (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.

7.
              (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: [(i)-(xo) described therein]

       (Emphasis added.).

       {¶ 14} Thus, R.C. 2929.13(B)(1)(a) creates a presumption against imposing prison

time and in favor of community control where the defendant is convicted or pleads guilty

to a fourth or fifth-degree felony that meets certain criteria. State v. Goldsmith, 6th Dist.

Lucas No. L-16-1126, 2017-Ohio-484, ¶ 9. Despite this presumption, a trial court may

sentence an offender to prison if the court finds one of the factors under R.C.

2929.13(B)(1)(b)(i)–(xi) exists to overcome the presumption. Id.

       {¶ 15} Grace argues, and the state does not dispute, that she met the presumption

in favor of community control under R.C. 2929.13(B)(1)(a). The parties disagree,

however, as to whether the presumption was overcome under Section (B)(1)(b). As set

forth below, we disagree that Grace was entitled to the presumption of community

control under R.C. 2929.13(B)(1)(a) and, therefore, we do not reach the merits of the

parties’ respective arguments under Section (B)(1)(b).

       {¶ 16} Recently, we held that, under the plain language of R.C. 2929.13(B)(1)(a),

the community control presumption set forth therein “applies only where the defendant

pleads guilty to a singular, nonviolent felony of the fourth or fifth degree.” (Emphasis

added.) State v. Boswell, 6th Dist. Erie No. E-18-053, 2019-Ohio-2949, ¶ 20, 22 citing

State v. Bentley, 11th Dist. Ashtabula No. 2017-A-0017, 2017-Ohio-8943, ¶ 19

8.
(Community control presumption “only applies upon a court’s sentencing an offender for

a single fourth-or fifth-degree felony, not multiple ones.”); and State v. Durant, 7th Dist.

Belmont No. 15BE0010, 2016-Ohio-8173, ¶ 9 (Agreeing that “if the legislature intended

to apply the statute to cases involving multiple charges, it would have pluralized the term

‘felony.’”). Accordingly, under Boswell, because Grace pled guilty to multiple fifth

degree felonies, she was not entitled to the presumption of community control under R.C.

2929.13(B)(1)(a).

       {¶ 17} We next consider Grace’s claim that the trial court failed to consider the

principles and purposes of felony sentencing under R.C. 2929.11, and the seriousness and

recidivism factors under R.C. 2929.12.

       {¶ 18} Grace correctly points out that the trial court did not specifically indicate, at

sentencing or in its judgment entry, that it considered these statutes. It is well-

recognized, however, that where the record is silent, there is a presumption that the trial

court gave proper consideration to R.C. 2929.11 and 2929.12. State v. Adams, 37 Ohio

St.3d 295, 297, 525 N.E.2d 1361 (1988); State v. Rutherford, 2d Dist. Champaign No.

08CA11, 2009-Ohio-2071, ¶ 34-35. See also State v. Seele, 6th Dist. Sandusky No. S-13-

025, 2014-Ohio-1455, ¶ 19 (“While it is true that the trial court did not expressly state in

either its judgment entry or during the sentencing hearing that it had balanced the

principles and purposes of sentencing against the seriousness of the offense and the

likelihood of recidivism under R.C. 2929.11 and 2929.12, we must presume that the trial

court gave those statutes proper consideration.”). It is up to the defendant to rebut this

presumption. Rutherford at ¶ 34-35. “Thus, the issue before us is whether the record

9.
demonstrates that the trial court considered R.C. 2929.11 and 2929.12 in imposing its

sentence, not whether the trial court expressly indicated that it did so.” State v. Sims, 6th

Dist. Sandusky No. S-13-037, 2014-Ohio-3515, ¶ 10.

       {¶ 19} R.C. 2929.11 explains that “ [t]he 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 sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” It instructs that “[t]o 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.”

       {¶ 20} R.C. 2929.12 provides discretion to the trial court “to determine the most

effective way to comply with the purposes and principles of sentencing * * *.” It

requires that “ [i]n exercising that discretion, the court shall consider the factors set forth

in divisions (B) and (C) * * * relating to the seriousness of the conduct, the factors

provided in divisions (D) and (E) * * * relating to the likelihood of the offender’ s

recidivism, and the factors set forth in division (F) * * * pertaining to the offender’s

service in the armed forces of the United States,” in addition to any other factors relevant

to achieving the purposes and principles of sentencing. R.C. 2929.12(A).

       {¶ 21} At sentencing in this case, the state argued that the trial court had a

“responsibility to send [a] message to the community” by imposing a prison term because

“without drug traffickers * * * we don’t have drug users.” Grace’s counsel requested that

10.
her client be allowed to enroll in a residential treatment facility, but interestingly, Grace

herself acknowledged that “being sent to prison might get me the help that I really need.”

The trial court offered the following explanation in support of the sentence:

              There are so many opportunities for treatment, but * * * it’s that old

       argument – you can lead the horse to the water; you can’t make them drink.

       I know a lot of people dropping dead because they wouldn’t help

       themselves * * *.

              My job is to help [Grace] reach her bottom quicker so she can say,

       yeah, I think it’s time. * * * [W]e’ve given her several opportunities to

       address the issue, and if I accept her excuse that, boy, it’s hard, I know it’s

       hard. * * * I’m going to do what I think is best to help her reach her

       bottom. * * * It’s a life or death sort of opportunity for her.

              I’m going to impose one year prison on each count. I will have them

       run concurrent. * * *

              I understand you probably don’t think kindly of me right now.

       Perhaps, when you get a little older, you’ll thank me. Good luck. * * * In

       my mind, I’m doing the right thing.

       {¶ 22} Grace complains that the trial court failed to consider the benefit to the

community of allowing her to participate in drug rehabilitation. She maintains that the

court was instead “intent on punishing [her] for her continued drug use.” To the contrary,

the court’ s assessment – that Grace was “not able to help [her]self” and that she faced a

“life or death” situation – reflects its judgment that incapacitating Grace was necessary

11.
and could have a deterrent effect by thwarting her ability to use drugs. Moreover,

Grace’s acknowledgement that prison might be in her best interest underscores the fact

that it served a purpose other than to merely punish her.

          {¶ 23} Grace also complains that the trial court gave no indication that it

considered such mitigating factors as her “expression of true remorse and desire to

overcome her addiction.” While Grace professed her apologies, she also declined to

identify where she obtained the Fentanyl, when asked by the court, except to say

“[s]omebody,” which undercuts her claim of remorse. Accord, State v. Lucas, 11th Dist.

Lake No. 2016-Ohio-063, 2017-Ohio-429, ¶ 14.

          {¶ 24} We therefore find that Grace fails to rebut the presumption that the trial

court considered the principles and purposes of felony sentencing under R.C. 2929.11,

and the seriousness and recidivism factors under R.C. 2929.12, when it sentenced her to

prison.

          {¶ 25} Finally, Grace alleges that the trial court was required to make certain

factual findings before imposing the maximum sentence. In support, Grace cites cases

interpreting a version of R.C. 2929.14 that was ruled unconstitutional by the Ohio

Supreme Court in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

Since Foster, trial courts have “‘full discretion to impose a prison sentence within the

statutory range,’” up to and including the maximum sentence for a given crime. Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 13, quoting Foster at ¶ 100.

And although the Ohio legislature reenacted portions of R.C. 2929.14 that the Supreme

Court excised in Foster, the requirement that the trial court make specific findings before

12.
imposing maximum sentences was not one of them. State v. Kubat, 6th Dist. Sandusky

No. 17 CAS 0012, 2018-Ohio-3088, ¶ 18. Therefore, under the applicable version of

R.C. 2929.14, a trial court is not required to make any special findings before imposing

maximum sentences. Id. The trial court’s failure to make such findings was not error.

       {¶ 26} We find that the trial court complied with all applicable sentencing

requirements when it sentenced Grace to prison and that her sentence is not clearly and

convincingly contrary to law under R.C. 2953.08(G)(2). Accordingly, her assignment of

error is not well-taken, and the October 9, 2018 judgment of the Sandusky County Court

of Common Pleas is affirmed. Grace is ordered to pay the costs of this appeal pursuant to

App.R. 24.

                                                                      Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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