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Date: 10-14-2019

Case Style:


Case Number: 18CA18

Judge: Peter B. Abele


Plaintiff's Attorney: Benjamin E. Fickel, Hocking County Prosecuting Attorney

Defendant's Attorney:


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On June 3, 2017, the Hocking County Sheriff’s Department stopped a vehicle after
the driver committed a traffic violation. Appellee was a passenger in the vehicle. A later search
of the appellee’s purse resulted in the seizure of 76 grams of methamphetamine. Appellee also
possessed a stolen firearm.
{¶ 3} Subsequently, appellee pleaded guilty pursuant to a plea agreement to (1) Aggravated
Possession of Drugs in violation of R.C. 2925.11(A) and (C)(1)(b), a third degree felony, and (2)
Receiving Stolen Property in violation of R.C. 2913.51(A), a fourth degree felony. In exchange
for appellee’s guilty plea, appellant recommended a three year sentence on count one and a two
year sentence on count two, with the sentences to be served consecutively for a total sentence of
four years.
{¶ 4} At the sentencing hearing, and after considering appellee’s statement and other
various factors, the trial court imposed five years of community control on each count, to be served
concurrently. Also, the court notified appellee that a community control violation could result in
the imposition of consecutive prison sentences of up to three years for count one and one year for
count two, for a total sentence of four years.
{¶ 5} In its sole assignment of error, appellant asserts that the sentence the trial court imposed
is contrary to law. In particular, appellant argues that, in light of appellee’s conviction for
Aggravated Possession of Drugs in violation of R.C. 2925.11(C)(1)(b), R.C. 2929.13(D) requires a
court to make specific judicial findings if the court opts to impose a community control sanction, or a
combination of community control sanctions, rather than impose a prison term. Appellant points
out that in the case sub judice the trial court disregarded the statutory presumption for prison and,
instead, imposed a community control sanction. Therefore, appellant seeks a reversal and remand

for resentencing so that the trial court may consider all relevant factors and make all required
statutory findings.
{¶ 6} Appellee candidly agrees that the trial court did not make the necessary statutory
findings in order to impose a community control sanction, and further agrees that the court did not
make the various findings necessary to impose consecutive sentences. See R.C. 2929.14(C)(4) and
R.C. 2929.13(D)(2). Appellee, however, also contends that (1) in this case a community control
sanction is entirely proper, especially in view of appellee’s progress in overcoming her addiction to
drugs, and (2) the trial court has already implicitly determined that it is not necessary to incarcerate
the appellee to protect the public from future crime or to punish the offender. Thus, appellant
reasons, after remand the trial court must not impose a more severe sentence. State v. Bradley, 184
Ohio App.3d 443, 2009-Ohio-5299.
{¶ 7} After our review, and after consideration of the parties’ arguments, we agree that the
sentence that the trial court imposed in this matter must be reversed and remanded in order for the
court to resentence the appellee in conformance with the aforementioned statutory provisions. We
hasten to add, however, that we take no position, nor express any preference, about the nature of the
sentence that the trial court may impose after remand.

Outcome: Accordingly, based upon the foregoing reasons, we hereby sustain appellant’s
assignment of error, reverse the trial court’s sentence and remand the matter for further proceedings
consistent with this opinion.

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