[Cite as State v. Cottom, 2016-Ohio-6993.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2016-A-0024
        - vs -                                   :

EUGENE C. COTTOM,                                :

                 Defendant-Appellant.            :


Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2015 CR 00362.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Dean F. Topalof and Marie Lane, Ashtabula County Public Defender, Inc., 4817 State
Road, Suite 202, Ashtabula, OH 44004 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Eugene C. Cottom, appeals from the February 22, 2016

sentencing entry of the Ashtabula County Court of Common Pleas. For the following

reasons, we affirm the trial court’s judgment.

        {¶2}     This case emanates from an incident that occurred in the Ashtabula City

Jail Building on or about June 16, 2015. Appellant was accused of causing significant

damage to the building and its contents by setting off the sprinkler system in his cell with
a lighter and then flushing that lighter down a toilet to avoid being caught. As a result,

the entire jail was flooded; water ran into the records/dispatch area, the basement, and

secured evidence areas.

       {¶3}   Appellant was initially arraigned in the Ashtabula Municipal Court and

released on a personal recognizance bond. The matter was then bound over to the

Ashtabula County Court of Common Pleas, which continued the personal recognizance

bond. On July 23, 2015, appellant was indicted on three counts: (1) Arson, a fourth-

degree felony, in violation of R.C. 2909.03(A)(1); (2) Inducing Panic, a fifth-degree

felony, in violation of R.C. 2917.31(A)(3)&(C)(4); and (3) Tampering with Evidence, a

third-degree felony, in violation of R.C. 2921.12.

       {¶4}   In August 2015, appellant was placed on basic supervision community

control for an unrelated May 2015 conviction of one count of Aggravated Possession of

Drugs, a fifth-degree felony. Appellant subsequently failed to appear at his plea status

review in the within matter, which was scheduled for October 20, 2015. A capias was

issued for appellant’s arrest.

       {¶5}   At the rescheduled plea status review on January 19, 2016, appellant

indicated he had entered into a plea agreement with the state, pursuant to which the

state recommended dismissal of Counts One and Two of the indictment. The state also

agreed to reduce Count Three to a charge of Attempted Tampering with Evidence, a

fourth-degree felony, in violation of R.C. 2923.02 and R.C. 2921.12(A)(1). The state

recommended imposition of a community control sanction and stated it would not

pursue an indictment for appellant’s Failure to Appear.        The trial court accepted




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appellant’s plea of guilty to Attempted Tampering with Evidence, pursuant to North

Carolina v. Alford, 400 U.S. 25 (1971).

       {¶6}   Following a February 16, 2016 sentencing hearing, the trial court

determined appellant was not amenable to a community control sanction and sentenced

him to a maximum term of 18 months in prison. Appellant appealed this entry and has

assigned only one error for our review:

       {¶7}   “The maximum prison sentence imposed by the trial court is clearly and

convincingly contrary to law.”

       {¶8}   Appellant asserts the trial court erred by imposing a discretionary prison

sentence, rather than a community control sanction, for his fourth-degree felony

conviction, pursuant to R.C. 2929.13(B).

       {¶9}   R.C. 2953.08(G) sets forth the standard of review for all Ohio felony

sentencing appeals and states, in pertinent part, that the “appellate court may increase,

reduce, or otherwise modify a sentence that is appealed under this section or may

vacate the sentence and remand the matter to the sentencing court for resentencing * *

* if it clearly and convincingly finds * * * (a) [t]hat the record does not support the

sentencing court’s findings under division (B) * * * of section 2929.13[.]”

       {¶10} R.C. 2929.13(B)(1)(a) states, in pertinent part: “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.



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                (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.

Even if all four factors are present, R.C. 2929.13(B)(1)(b) provides the trial court with

discretion to impose a prison term upon such an offender, as opposed to a community

control sanction, if one of eleven enumerated exceptions to (B)(1)(a) apply.

        {¶11} Appellant was sentenced in this matter on February 22, 2016. Previously,

on May 28, 2015, appellant was convicted of Aggravated Possession of Drugs, a fifth-

degree felony, in the Ashtabula County Court of Common Pleas. Pursuant to R.C.

2929.13(B)(1)(a)(i), mandatory community control sanctions were not available to

appellant for his current fourth-degree felony conviction. It was therefore not necessary

for the trial court to consider whether one of the exceptions listed in (B)(1)(b) applied.1

        {¶12} When R.C. 2929.13(B)(1) does not apply, such that the trial court finds the

defendant is not eligible for or amenable to a community control sanction, it must apply


1. We note, however, that one exception did apply, such that the trial court would still have had discretion
to impose a prison term even if he had no prior felony convictions: “[t]he offender violated a term of the
conditions of bond as set by the court.” R.C. 2929.13(B)(1)(b)(iii); see also State v. Wood, 1st Dist.
Hamilton No. C-150197, 2015-Ohio-4243, syllabus. Appellant violated a condition of his personal
recognizance bond when he failed to appear for his plea status review and a capias was issued for his
arrest. Although the state agreed not to pursue a conviction for Failure to Appear, the fact of the matter is
reflected in the record and in the transcript of the plea hearing.



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R.C. 2929.13(B)(2) before imposing a prison term for a fourth-degree felony. “[T]he

sentencing court shall comply with the purposes and principles of sentencing under

section 2929.11 of the Revised Code and with section 2929.12 of the Revised Code.”

R.C. 2929.13(B)(2); see also State v. Townsend, 8th Dist. Cuyahoga No. 99896, 2014-

Ohio-924, ¶9.

      {¶13} The trial court’s sentencing entry states the following:

             The Court has considered the record, oral statements, any victim
             impact statement, the presentence investigation, the purposes and
             principles of sentencing under R.C. 2929.11, the seriousness and
             recidivism factors relevant to the offense and offender pursuant to
             R.C. 2929.12, and the need for deterrence, incapacitation,
             rehabilitation, and restitution.

             In fashioning the sentence to be imposed in this case, the Court’s
             discretion has been guided by the following considerations. The
             Court finds that the offender is not amenable to an available
             combination of community control sanctions because this is the
             defendant’s second felony conviction; the defendant caused
             significant damage to the Ashtabula City jail; and the defendant
             received a very favorable plea negotiation.

             The Court finds that a prison sentence is consistent with the
             purposes and principles of sentencing under R.C. 2929.11 because
             a prison sentence is commensurate with the seriousness of the
             offender’s conduct and its impact on the victim, because it is
             reasonably necessary to deter the offender in order to protect the
             public from future crime, and because it would not place an
             unnecessary burden on governmental resources.

             The Court further finds that the defendant has not previously served
             time in a prison for a criminal offense.

      {¶14} Because appellant was not eligible for mandatory community control and

the trial court complied with R.C. 2929.13(B)(2) before imposing a discretionary term of

imprisonment, we hold that appellant’s sentence is not contrary to law.

      {¶15} Appellant’s sole assignment of error is without merit.




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      {¶16} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.




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