[Cite as State v. Mitchell, 2019-Ohio-5270.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                       :
                                                     :
          Plaintiff-Appellee                         :   Appellate Case No. 2019-CA-12
                                                     :
 v.                                                  :   Trial Court Case No. 2018-CR-328
                                                     :
 SARAH MITCHELL                                      :   (Criminal Appeal from
                                                     :    Common Pleas Court)
          Defendant-Appellant                        :
                                                     :

                                                ...........

                                               OPINION

                          Rendered on the 20th day of December, 2019.

                                                ...........

DAVID M. MORRISON, Atty. Reg. No. 0087487, Greene County Prosecutor’s Office,
Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

WILLIAM O. CASS JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 117,
Kettering, Ohio 45429
       Attorney for Defendant-Appellant

                                               .............




FROELICH, J.
                                                                                           -2-




       {¶ 1} Sarah Mitchell pled guilty in the Greene County Court of Common Pleas to

aggravated possession of drugs, a third-degree felony. The trial court sentenced her to

the maximum term of three years in prison.          Mitchell appeals from her conviction,

claiming that the trial court erred in imposing the maximum prison sentence. For the

following reasons, the trial court’s judgment will be affirmed.

       {¶ 2} The presentence investigation report (PSI) reveals the following facts.

       {¶ 3} On September 13, 2017, Mitchell was seated with two other individuals in a

parked vehicle at a Taco Bell in Fairborn when police officers approached the vehicle.

Taco Bell employees had advised the officers that that the vehicle had been parked for

more than hour and the occupants may be intoxicated. Mitchell, who was in the driver’s

seat, told the officers that they were homeless and living out of the car. Mitchell gave

the officers permission to search the vehicle. In the front passenger side area, officers

located a McDonald’s bag with a loaded syringe inside.            (The front-seat passenger

denied knowing about the syringe and claimed that the McDonald’s bag was not hers.)

       {¶ 4} After being placed in a cruiser, Mitchell was asked if there was anything else

in the car. Mitchell responded that she was not sure, but “there is a pill bottle with a clear

liquid in my backpack.” Officers located a pill bottle with no label and a clear liquid in a

black backpack on the driver’s seat. Mitchell told the officers that the liquid was a “clear

form of meth” and that it belonged to her front-seat passenger, but she had taken it

because of “the addict in her [Mitchell].” The substance was field-tested and found to be

positive for methamphetamine. Mitchell was placed in handcuffs, at which time a syringe

cap fell out of her pocket.
                                                                                           -3-


       {¶ 5} The PSI reflects that, at the time of the offense, Mitchell was on community

control for trafficking in heroin, a felony of the fourth degree, in Hocking C.P. No. 2015-

CR-0134.

       {¶ 6} In May 2018, Mitchell was indicted on one count of aggravated possession

of drugs, a third-degree felony, based on her possession of a pill bottle filled with Mountain

Dew with some methamphetamine mixed with it. Mitchell, who then resided in Perry

County, was arrested on the charge on July 22, 2018, and was released on bond soon

thereafter. She pled not guilty at her arraignment on August 3, 2018. Mitchell failed to

appear for a pretrial conference on August 29, and a capias was issued for her arrest.

       {¶ 7} In September 2018, the parties reached a plea agreement. In consideration

for Mitchell’s plea of guilty to the charged offense, the State recommended that she

receive community control with inpatient chemical dependency treatment. The State

further recommended the minimum mandatory fine if Mitchell were found not to be

indigent. At the plea hearing on September 20, the trial court informed Mitchell that it

was not required to accept the State’s recommendation and that it wanted Mitchell to

participate in a presentence investigation so that it could determine an appropriate

sentence, which could be either prison or community control.

       {¶ 8} The trial court set a bond of $15,000 (no ten percent) pending sentencing.

Mitchell posted a bond on October 15, 2018. One of her bond conditions included that

she report to the Adult Probation Department for her presentence interview on October

23, 2018. Sentencing was scheduled for November 15, 2018.

       {¶ 9} According to the PSI, on October 17, 2018, two days after her release,

Mitchell allegedly committed trafficking in heroin, a felony of the second degree, and
                                                                                       -4-


permitting drug abuse, a felony of the fifth degree, in Perry County. See Perry C.P. No.

2018-CR-0097. On October 23, Mitchell left a voice mail with the Greene County Adult

Probation Department, asking to reschedule her PSI interview that was scheduled for that

afternoon.   A probation officer repeatedly attempted to reach Mitchell, but was

unsuccessful. On November 6, a probation officer requested a capias for Mitchell’s

arrest due to Mitchell’s failure to report to the Adult Probation Department or return any

phone calls. Mitchell was arrested in Perry County on December 31, 2018 related to

charges in that county, and was arrested on the Greene County bond violation on January

4, 2019.

      {¶ 10} At sentencing on February 28, 2019, defense counsel told the court that

Mitchell “has some significant drug issues seeming to stem since 2014” and “it’s apparent

that she has a pretty severe addiction to many drugs.” Counsel stated that Mitchell had

successfully completed treatment at one time at a community-based correctional facility

(CBCF), but continued to struggle. Counsel noted that the degree of the offense in this

case was largely due to the amount of Mountain Dew in the pill bottle, as opposed to the

amount of methamphetamine. Counsel acknowledged that Mitchell was “a candidate for

prison at this time having been through CBCF,” but counsel expressed concern with

Mitchell’s going to prison because she (Mitchell) would be surrounded by people who

would encourage addiction. Counsel asked the court to consider ordering Mitchell to

complete inpatient treatment again before imposing a prison sentence.

      {¶ 11} Speaking on her own behalf, Mitchell indicated that she was an addict and

“really could benefit from more treatment.” Mitchell wanted an opportunity to be a parent

to her three children, who she stated were in her mother’s custody.
                                                                                         -5-


      {¶ 12} The trial court imposed the maximum sentence of 36 months in prison.

The court explained its reasons, stating:

             The first thing I want to say to you is – and I want you to understand,

      and I’d hope most people involved in this process would understand this –

      I have true empathy for an addict, a person who is in the grip of drugs; and

      I do appreciate having been here a fairly long time and seeing many people

      sitting in your chairs that grip doesn’t let go, and it’s hard, regardless what

      people want to do, to overcome that.

             And I suppose if anyone had a magic wand to be able to do

      something that would fix an addition, we would want to do that.

             It’s basically running the criminal justice system. Nine out of ten

      people who come to this court, their case has something to do with drugs,

      whether it’s a drug offense itself or they’re high on drugs or did something

      to get money for drugs. It is the criminal justice system – the addiction and

      the people that do these things.

             What the courts try to do is take steps to offer opportunities for people

      because ultimately it’s not any court order that fixes people. It’s the

      individual’s choice.

             Having said that, I still recognize the difficulties for a person’s

      addiction, particularly when the addiction is heroin, but any addiction long-

      term has a negative [e]ffect on people.

             Ultimately the Court has a lot of considerations in a disposition, and

      one of the considerations is, what is in your best interest? What can we do
                                                                                -6-


to help you in a manner and in an environment that might make sense, that

might be something that you would embrace?

       I don’t know really where you are in terms of your ability or your

desire to overcome your addiction. I mean, I know people say they want

to overcome an addition, and I hear that, and I appreciate that; but that’s –

it’s easy to say the words. It’s hard to follow that road, and I appreciate

that as well.

       Now, I do have to tell you this: The case that’s in front of me also

requires me to make a generalized statement, not just to you, but to the

public at large; and I emphasize that with my previous comment that drugs

are running the justice system.

       Your addiction has resulted in your committing a lot of offenses, and

here’s probably what’s driving my decision more than anything else, and

this is something you’ve done in the past.

       You committed a crime in Hocking County, and you were on

probation; but while you’re on Community Control in Hocking County, you

committed the crime in this county.

       When you – and this is probably equally bad – while you were

released on bond in this county, you know what you did. Two days later,

you’re committing another felony offense in another county. I know it’s not

done yet, but you were charged with that.

       The mere fact that you were in a position to have probable cause to

be charged does not bode well.
                                                                                        -7-


              Your addiction takes me to the point of saying, I just don’t have a

      spot for you on Community Control that’s going to work for you.

              I have to do something that accomplishes two things: One, gets you

      into an environment that if you want drug treatment, it’s going to be available

      to you; and, secondly, since you’ve never been sent to prison before, to ask

      you – to have you ask yourself a question, is this where I want to go in my

      life?

              Now, I don’t know where they’re going to send you, but I’ve been to

      Marysville before.   Probably not a place that people are living out the

      dream, and so you’ve got to decide ultimately is this the future I’m seeking

      or do I have to work hard to try something else?

              Now, I’m not your father. I’m not trying to lecture you. I apologize

      if you take it as that.    I’m doing this for me because I want you to

      understand why I’m doing what I’m doing.

              I’m imposing a prison sentence. This prison sentence is going to be

      of a duration that will provide an opportunity for you.

              I’m not going to order this.   There’s a program at the institution

      known as the Tapestry Program.1 The reason I think it’s a good program

      is, they do not allow judges to order anyone into that program. They only

      allow people who say, I want to do this program.


1 The Tapestry program is a therapeutic community located within the Ohio Reformatory
for Women in Marysville, Ohio. It serves 90 alcohol/drug dependent women, housed
separately from the general population, and helps participants “develop skills they need
to maintain sobriety and live a pro-social life.”        CompDrug, Tapestry (ORW),
https://www.compdrug.com/tc/tapestry (accessed Dec. 4, 2019).
                                                                                         -8-


             If you are interested in some form of treatment that might have an

      impact upon your future, th[en] my advice is, you are – when you get to the

      institution say that you want to enter the Tapestry Program, and they’ll

      screen you for that.

             Now, personally I think you’re a great candidate for the program, and

      they should accept you into the program; and, again, you’re going to have

      a sentence that’s long enough that will provide that opportunity to do that,

      because it’s a long-term program, which I believe are the best programs

      because you don’t go in 90 days and get cured. It doesn’t happen.

             I mean, you kind of put your toe in the water and you know how –

      what the temperature is, but you haven’t taken a bath yet, and that’s what

      these long-term programs do. They immerse you in the understanding of

      what it takes to address a drug addiction, so that’s why I’m doing what I’m

      doing, and we’ll proceed. * * *

(Footnote added.)

      {¶ 13} The trial court then found that a prison term was consistent with the

purposes and principles of sentencing and that Mitchell was not amenable to community

control sanctions. The court further found that community control would demean the

seriousness of Mitchell’s conduct and would not place an unnecessary burden on

government resources. As stated above, the court imposed 36 months in prison, the

maximum sentence.

      {¶ 14} Mitchell appeals from her conviction, claiming that “the trial court’s decision

to impose a maximum sentence is clearly and convincingly not supported by the record.”
                                                                                         -9-


       {¶ 15} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under

R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it

may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,

2017-Ohio-4097, ¶ 6.

       {¶ 16} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory policies that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d

500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

       {¶ 17} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others, to punish the offender, and to promote the effective rehabilitation of

the offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” R.C. 2929.11(A). The court must “consider the need for incapacitating the

offender, deterring the offender and others from future crime, rehabilitating the offender,
                                                                                        -10-


and making restitution to the victim of the offense, the public, or both.”       Id.   R.C.

2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably

calculated to achieve the three overriding purposes of felony sentencing * * *,

commensurate with and not demeaning to the seriousness of the offender’s conduct and

its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.”

       {¶ 18} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth

four factors indicating that an offender’s conduct is less serious than conduct normally

constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts

are to consider regarding the offender’s likelihood of committing future crimes. Finally,

R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service

record, if any.

       {¶ 19} For purposes of sentencing, a court “is not confined to [considering] the

evidence that strictly relates to the conviction offense because the court is no longer

concerned * * * with the narrow issue of guilt.” State v. Bowser, 186 Ohio App.3d 162,

2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.); State v. Davis, 2d Dist. Clark No. 2018-

CA-49, 2019-Ohio-1904, ¶ 47. Sentencing courts may consider, for example, “hearsay

evidence, facts related to charges that were dismissed pursuant to a plea bargain, and

allegations contained in a PSI report.” State v. Bautista, 2d Dist. Clark No. 2015-CA-74,

2016-Ohio-5436, ¶ 12, citing State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-

Ohio-4248, ¶ 8.

       {¶ 20} The PSI reflects that Mitchell’s drug offenses date back to December 2008,
                                                                                         -11-


when she was convicted in the Hocking County Municipal Court of possession of

marijuana and drug paraphernalia. In 2014, she pled guilty in two separate cases in the

Perry County Municipal Court to possession of drug abuse instruments and “marijuana

paraphernalia.” In 2016, Mitchell was convicted of trafficking in heroin, a fourth-degree

felony, in Hocking County, for which she received an “unknown jail sanction” and was

placed on community control. The instant offense, a third-degree felony, was committed

while she was on community control, and she allegedly committed two additional felony

drug offenses in October 2018 in Perry County – trafficking in heroin and permitting drug

abuse – two days after her release on bond in this case.          In short, the severity of

Mitchell’s drug offenses had escalated recently, substantiating defense counsel’s

argument that Mitchell had a “pretty severe addiction” when sentencing occurred.

       {¶ 21} The trial court’s three-year sentence was within the permissible range of

sentences for a violation of R.C. 2925.11(A), see R.C. 2929.14(A)(3)(b), and the trial court

provided an extensive explanation of its reasons for imposing that sentence. In short,

the trial court found that Mitchell was not amenable to community control, and that the

maximum sentence was necessary to afford her enough time to obtain drug treatment in

prison. Because Mitchell’s sentence was lawful, we focus on whether it was clearly and

convincingly unsupported by the record.

       {¶ 22} Mitchell had not previously served a prison sentence, but we cannot

conclude, on this record, that a prison sentence was clearly and convincingly unsupported

by the record. Mitchell committed the instant offense while on community control and

twice violated the terms of her bond while this case was pending. The second time, she

allegedly committed new drug offenses two days after her release on bond pending
                                                                                         -12-


sentencing and she failed to comply with the bond condition that she participate in the

presentence investigation.    Although the State recommended community control (in

accordance with the plea agreement), the court could have reasonably concluded that

Mitchell was not amenable to community control.

       {¶ 23} While Mitchell’s argument on appeal focuses on the trial court’s imposition

of a prison sentence rather than community control, she further claims that the court erred

in imposing the maximum sentence. A lengthy prison sentence which is at least for the

offender’s “own good” must be reviewed in light of R.C. 2929.11(A)’s purpose of

“promot[ing] the effective rehabilitation of the offender using the minimum sanctions that

the court determines accomplish those purposes without imposing an unnecessary

burden on state or local government resources.” (Emphasis added.) Before imposing

the maximum sentence, a trial court should consider the significant toll inherent in lengthy

prison sentences, such as the effect on an offender’s future housing, employment, family

relationships, social support networks, and the like, as well as the economic costs.2 In

addition, although the trial court indicated a familiarity with the Tapestry program, the

availability of long-term treatment programs in the prison setting, particularly given the

prevalence of drug addiction as an underlying cause of criminal activity, is not always

present. The unfortunate reality is that the demand for addiction treatment far exceeds

the available programs, both in prison and in the community. Here, there is no indication

that court did not consider these or other relevant factors.

       {¶ 24} We cannot conclude that the trial court’s imposition of the three-year



2
 See, e.g., Leipold, Is Mass Incarceration Inevitable?, 56 Am. Crim. L.Rev. 1579 (2019);
Jain, Capitalizing on Criminal Justice, 67 Duke L.J. 1381 (2018).
                                                                                       -13-


sentence is clearly and convincingly unsupported by the record in this case. Defense

counsel and Mitchell acknowledged – and her continuing and escalating drug offenses

reflect – that Mitchell had a severe addiction and that treatment was needed. Mitchell

had previously completed (successfully) a treatment program at a community-based

correctional facility, but had relapsed. Whether another court may have exercised its

discretion differently and imposed community control or a less than maximum sentence

in an attempt to provide her an opportunity for treatment is immaterial; the trial court’s

three-year sentence, in this case, is not clearly and convincingly unsupported by the

record.

      {¶ 25} Mitchell’s assignment of error is overruled.

      {¶ 26} The trial court’s judgment will be affirmed.

                                    .............



WELBAUM, P.J. and DONOVAN, J., concur.


Copies sent to:

David M. Morrison
William O. Cass Jr.
Hon. Stephen Wolaver
