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Date: 01-17-2021

Case Style:

STATE OF OHIO v. GENE A. BOZARTH

Case Number: 2020-CA-21

Judge: Jeffrey E. Froelich

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

Plaintiff's Attorney: MARCY A. VONDERWELL

Defendant's Attorney:


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Dayton, OH - Criminal defense attorney represented Gene A. Bozarth with appealing from his conviction, claiming that the trial court relied on inaccurate information that was not included in the presentence investigation report (PSI) and that his counsel rendered ineffective assistance.



} According to the PSI, on June 18, 2019, an employee at a Circle K gas station
called the Greene County Sheriff’s Office to report shoplifting. Deputy Joseph Thorne
responded. Upon arrival at the Circle K, the employee informed the deputy that the
suspect had left and gone into a Tractor Supply Company store. Deputy Thorne
approached Bozarth at the Tractor Supply Company store, told Bozarth that he was
investigating a theft complaint, and asked for Bozarth’s identification. Bozarth stated that
he did not have identification and did not know his Social Security number. Bozarth
provided the name “Tony A. Combs” and a birth date. Dispatch told Officer Thorne that
Bozarth’s information was not valid. Bozarth then said his name was “Tony Anthony
Combs” and gave a different birth date (by one day). Dispatch again advised Deputy
Thorne that the information was not valid.
{¶ 4} Deputy Thorne walked Bozarth to his cruiser and told Bozarth that he would
be transporting Bozarth back to the Circle K for further investigation. The deputy began
to perform a pat down prior to placing Bozarth in the cruiser. Bozarth took a glass drug
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pipe from his front right pocket and tried to toss it under the cruiser. The deputy placed
Bozarth in handcuffs, retrieved the glass pipe, and searched Bozarth. Thorne located
white rock-like substances, white powder, butane, and other items. At the Circle K, the
employee identified Bozarth as the individual who stole butane torches.
{¶ 5} In August 2019, Bozarth was indicted on one count of aggravated possession
of drugs (methamphetamine) in an amount equal to or exceeding the bulk amount, but
less than five times the bulk amount. The charge included a forfeiture specification
concerning the seized drugs and other contraband. The court set an own recognizance
bond. The Sheriff’s Office served Bozarth with the indictment at the Montgomery County
Jail, where Bozarth was being held on an unrelated case.
{¶ 6} On December 12, 2019, Bozarth pled guilty to the charged offense and
forfeiture specification. In exchange for the plea, the State agreed to recommend
community control sanctions. After reading the written plea agreement during the plea
hearing, the court told Bozarth that it was not bound to follow the State’s recommendation.
Bozarth indicated that he understood. The court further told Bozarth that, “even though
I can conclude your case today, I’m not going to do that. I’m going to put disposition
down the road, so I can learn more about you and about this case and make an informed
decision as to what the appropriate outcome should be, and I just wanted you to be aware
of that as well.” After consulting with defense counsel, Bozarth indicated that he still
wanted to plead guilty. The trial court accepted Bozarth’s guilty plea and found that it
was knowing, intelligent, and voluntary.
{¶ 7} The trial court initially scheduled Bozarth’s sentencing hearing for January
16, 2020, and ordered a presentence investigation. The court instructed Bozarth to
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complete his questionnaire honestly, promptly, and completely, and to return it to the
probation department at his first opportunity. The court also told Bozarth to make himself
available to the probation department for a PSI interview. Bozarth informed the court
that he was at the Montgomery County Jail and asked if the interview would occur there.
The court responded, “Well, you don’t have any responsibility. They’re going to take
care of the litany on that.” The court told Bozarth to “just get your questionnaire back as
soon as possible.” Bozarth asked if he should give it to his “other lawyer” or “do it now.”
The court stated that it “probably would be wise to do it now. That’s probably a good
idea. We’ll give you the opportunity to get that squared away. * * *”
{¶ 8} On January 16, 2020, Bozarth was conveyed from the Montgomery County
Jail to the Greene County Jail, and Bozarth’s counsel filed a motion to waive the
mandatory fine and an affidavit of indigency. The sentencing hearing was continued,
however, due to Bozarth’s awaiting a bed at the Morning Star Treatment Program for his
Montgomery County case. Bozarth completed the Morning Star Program on February
20, 2020.
{¶ 9} According to the probation department’s update to the PSI, the probation
department contacted Bozarth’s counselor on February 12 and gave Bozarth instructions
to report to the probation department within 24 hours of his release from the treatment
program. Bozarth did not report as ordered, but called on February 21. The probation
department ordered him to report on February 25, 2020 to complete bond conditions and
a PSI interview. Bozarth failed to report then and on other dates in early March.
{¶ 10} On March 6, the trial court rescheduled the sentencing hearing for April 10.
The same day (March 6), Bozarth reported to the probation department and signed bond
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conditions related to his release on his own recognizance. As part of his bond
conditions, Bozarth was required to appear for a PSI interview, which was scheduled for
March 17, 2020. Bozarth ultimately completed the interview by telephone.
{¶ 11} The sentencing hearing again was continued and ultimately held on April
29, 2020. At the sentencing hearing, the court heard from defense counsel and Bozarth;
the prosecutor declined to make a statement. Defense counsel emphasized that Bozarth
had completed a residential treatment program in February 2020 as part of his community
control in a Montgomery County case and that Bozarth had been involved with Access of
Ohio since that time to deal with his mental health and addiction issues. Defense
counsel acknowledged Bozarth’s significant criminal record and that there had been
“bumps along with way” with Bozarth’s recovery. Defense counsel requested community
control, stating that he believed “the trend is in the right direction.” Bozarth apologized
to the court.
{¶ 12} Before imposing sentence, the court reminded Bozarth that it had “wanted
to know more about [him] and about this case” and had received a PSI. (Shortly before
sentencing, the court received an update to the PSI from the probation department.1 At

1 The trial court did not include the PSI update letter when it filed the PSI under seal with
this court on October 30, 2020. Upon request, this court received a PDF version of the
update letter from the probation department on November 9, 2020. We subsequently
remanded this case to the trial court to confirm that it had reviewed the update letter prior
to sentencing and to supplement the record with that document, pursuant to App.R. 9(E).
The trial court supplemented the record with the update letter and further clarified that it
had considered the update letter and had allowed defense counsel and the prosecutor to
review the update letter. Bozarth’s appellate brief, filed in August 2020, did not reference
the update letter and Bozarth’s argument on appeal suggests that his appellate counsel
was unaware of the update letter when his brief was filed. We afforded counsel the
opportunity to review the update letter and to request leave to file a supplemental brief.
We subsequently denied defense counsel’s request to file a supplemental brief.
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sentencing, the court considered this update letter as part of the PSI.) The court stated
that “probably the best way to explain it to you is basically read what this report has
provided me. I’ll paraphrase initially.” The court, referring to information in the PSI
update letter, continued:
The bottom line is, the probation department has had a lot of difficulty
working with you. I don’t know whether there is a blame to be placed here,
but that tends to stick out.
They’ve scheduled meetings with you. They have been postponed.
They’ve been continued, rescheduled.
At one point you failed to report on March 2d, March 3rd, March 4th.
On March 5th, they were finally able to make contact with you.
When you did report on March 6th, while going over bond conditions,
you indicated that you would probably test positive for drugs due to cleaning
old drugs out of our [sic] mother’s residence. Then you later admitted you
used methamphetamine two days prior.
Now, this raises an alarm for me, because as your Counsel just said,
less than a month earlier, you’d completed a drug treatment program; and
so less than a month after you completed a program, you’re back on drugs
again. Program obviously didn’t stick.
But also it’s disturbing to the Court is that it was methamphetamine
that you said you were using, and that’s the nature of this charge.
You were charged with possessing methamphetamine, so hadn’t
been much of a break in the use of that particular drug in your life.
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On March 17th, they had a meeting with you, and you said you didn’t
have transportation, so you couldn’t deal with that; but you indicated that
you were in aftercare treatment at Nova, and you were scheduled to attend
treatment the next day.
You were instructed to have the counselor provide information to the
Adult Probation Department regarding this; and as of this date, no
information has been received.
If you’ve got something as of the PSI, it wasn’t accomplished. * * *
* * * The other factors the Court’s looking at here includ[e] the fact
that your attorney mentioned that you were on Community Control, but you
were on Community Control in Montgomery County when you committed
this offense.
So while you had the opportunity to be on Community Control to get
some rehabilitation to straighten your life out, you’re still dealing with
methamphetamine, and you’ve been non-compliant on bond conditions.
The probation department says you’re always providing an
explanation for your lack of compliance, and they believe – to use their
words – that you blatantly disregard their order for bond conditions.
In my humble opinion, that probably has everything to do with your
drug addiction and your inability to get over your drug addiction; but
probably what drives the Court as much as anything is the fact that you are
not a stranger to the criminal justice system, particularly the prison system.
You’ve been to prison seven times. Somewhere along the line for
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someone who’s 46 years old you have to make a decision in your mind as
to what your life is all about, and apparently going to prison doesn’t seem
to have much of an impact on the direction you think you should be going.
The fact that you’re on Community Control – and my bet is it was
probably a drug offense in Montgomery County, but you’ve been convicted
of offenses of violence in the past, although that’s not significant in my
calculus and thinking today; but, nonetheless, it appears that your ability to
stay right with the law has great difficulty in every aspect. When you get
Community Control, you can’t stay clean. You can’t follow Community
Control. When you’re on bond, you can’t do that.
You would like to think a person who’s been to prison a few times
they would say to themselves, this is probably not the place I want to be.
Maybe I should do something different in my life.
It just puts the Court in a position to say, you’re just not a candidate
for Community Control because we would be spinning our wheels trying to
get you where you need to be, so the Court based upon that does intend to
impose a prison sentence today.
{¶ 13} At this juncture, Bozarth asked to say something. Bozarth told the court:
I just want to tell you, it’s been a long bumpy road; and I, I try. I
really do. It’s just a lot of things happened in my life, and it’s been a bumpy
road. But, I mean, I’m still thriving [sic] to go toward that way, to a clean
life.
I’m in aftercare right now. You know, I’m sticking with it. I’m not
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trying to bail out. I’m just hoping you’d give me a chance to let me show
you this time. I’ve got everything going in the right direction right now.
{¶ 14} The trial court reiterated that it did not think that Bozarth was a good
candidate for community control. The court told Bozarth about the Oasis Program, which
he could request at the institution. The court then sentenced Bozarth to 30 months in
prison and ordered him to pay court costs.
{¶ 15} Defense counsel, who had an opportunity to review the update letter, did
not object to the trial court’s reference to certain information in the update letter or
otherwise claim at the sentencing hearing that the information in the update letter was
inaccurate.
{¶ 16} Bozarth appeals from his conviction, raising two assignments of error.
II. Due Process at Sentencing
{¶ 17} Bozarth’s first assignment of error claims that the trial court’s sentence “was
based upon inaccurate data, depriving [Bozarth] of due process and fairness in
sentencing.” Bozarth emphasizes that the PSI filed in this case did not contain the
information that the trial court cited regarding Bozarth’s use of methamphetamine after
entering his plea. Bozarth asserts that the trial court’s sentence was based on “false
evidence of recent drug use.”
{¶ 18} 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”
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finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is otherwise contrary to law. State v. Huffman, 2d Dist. Miami No.
2016-CA-16, 2017-Ohio-4097, ¶ 6.
{¶ 19} “The trial court has full discretion to impose any sentence within the
authorized statutory range[.]” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d
Dist.). 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. However,
the trial court is not required to make any findings or give its reasons for imposing
maximum or more than minimum sentences. King at ¶ 45. The Ohio Supreme Court
recently stated that R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court
to modify or vacate a sentence based on its view that the sentence is not supported by
the record under R.C. 2929.11 and 2929.12.” State v. Jones, Ohio Slip Opinion No.
2020-Ohio-6729, __ N.E.3d __, ¶ 39.
{¶ 20} In this case, the trial court’s 30-month prison sentence was within the
statutory range for Bozarth’s offense, and the record indicates that the trial court complied
with R.C. 2929.11 and R.C. 2929.12.
{¶ 21} Jones, which was rendered on December 18, 2020, may affect our
jurisprudence that we may modify or vacate a sentence that is clearly and convincingly
unsupported by the record. We recognize that, due to the timing of its release, the
parties have not had an opportunity to address the applicability of Jones. Regardless, in
this case, Jones has no effect on the outcome of the appeal. Even reviewing whether
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Bozarth’s 30-month prison sentence was clearly and convincingly unsupported by the
record under our pre-Jones case law, we conclude that it was not.
{¶ 22} At the outset, we note that the PSI was drafted on January 3, 2020 (at which
time Bozarth was incarcerated at the Montgomery County Jail) in anticipation of the
January 16, 2020 sentencing hearing, which was continued. Shortly before the April 29,
2020 sentencing hearing, the probation department provided the trial court with a letter
updating the PSI. That letter detailed Bozarth’s interactions with the probation
department following his release from the Morning Star Program.
{¶ 23} The PSI reflects that Bozarth had 13 prior felony convictions spanning from
1998 to 2019: aggravated robbery (1998), assault and escape (2000), robbery (2003),
assault on a peace officer (2006), aggravated possession of drugs (2010), assault on a
peace officer and failure to comply (2010), receiving stolen property (2010), theft of drugs
(2016), attempted tampering with evidence (2018), resisting arrest (brandishing weapon)
(2019), and aggravated possession of drugs (2019). Bozarth was sentenced to prison
in seven of those cases, most recently in 2010. Bozarth had approximately 10 rule
infractions while in prison. Bozarth was under community control sanctions in
Montgomery County at the time of this offense.
{¶ 24} In determining that Bozarth was not amenable to community control,
contrary to the prosecutor’s recommendation, the trial court relied extensively on
Bozarth’s lack of cooperation with the probation department and drug use while on bond.
With respect to Bozarth’s drug use, the PSI update letter stated, “While going over bond
conditions the defendant first attempted to say he would be positive on a drug test today
if tested due to ‘cleaning out old drugs at his mothers [sic] residence’, he later admitted
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he used methamphetamine two days prior.” The update letter summarized Bozarth’s
interactions with the probation department, saying:
In the brief amount of time the defendant has been released from
custody he has been noncompliant with this Court. The defendant
consistently has excuses for his lack of compliance, and blatant disregard
to Court ordered bond conditions; for example within 15 days of being
released from a residential treatment program the defendant continued his
drug use, failed to report numerous times, and there has not been any
documentation provided to support he is in aftercare treatment.
{¶ 25} When faced with the court’s recitation of Bozarth’s actions as reported by
the probation department, Bozarth did not dispute the accuracy of the probation
department’s letter. Rather, he claimed that “it’s been a long bumpy road” and that he
was striving to do better.
{¶ 26} With the record before us, the trial court’s imposition of a 30-month prison
sentence was not clearly and convincingly unsupported by the record. There is no
indication that the trial court relied upon inaccurate information or that Bozarth’s due
process rights were violated.
{¶ 27} Bozarth’s first assignment of error is overruled.
III. Ineffective Assistance of Counsel
{¶ 28} In his second assignment of error, Bozarth claims that his trial counsel
rendered ineffective assistance by failing to prepare adequately for the sentencing
hearing and failing to “call materially false data relied upon in sentencing to the trial court’s
attention.”
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{¶ 29} To establish ineffective assistance of counsel, a defendant must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that the errors were serious enough to create a reasonable
probability that, but for the errors, the outcome of the case would have been different.
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not
permitted to distort the assessment of what was reasonable in light of counsel’s
perspective at the time, and a debatable decision concerning trial strategy cannot form
the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d
516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193,
¶ 38 (2d Dist.). Trial counsel is also entitled to a strong presumption that his or her
conduct falls within the wide range of reasonable assistance. Strickland at 689.
{¶ 30} Bozarth’s second assignment of error is based on the premise that the PSI
did not contain the information regarding Bozarth’s behavior in February and March 2020,
and thus the court relied on false incriminating information at sentencing, to which counsel
did not object. With the record before us, we cannot conclude that defense counsel
acted deficiently. Although the information about Bozarth’s alleged drug use while on
bond and his contacts with the probation department was not contained in the original
PSI (which was prepared in January 2020, prior to the events at issue), the information
was provided to the trial court by the probation department in an update letter shortly
before sentencing, and Bozarth himself did not question the validity of the reported
information when he asked to speak to the court in response to the probation
department’s updated information.
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{¶ 31} Arguing on Bozarth’s behalf at the sentencing hearing, defense counsel
emphasized that Bozarth had completed a residential treatment program in February
2020 as part of his community control in a Montgomery County case and that Bozarth
had been involved with Access of Ohio since his completion of the residential program.
Defense counsel recognized, however, that there had been “bumps along with way” with
Bozarth’s recovery. Although defense counsel did not specifically address Bozarth’s
failure to report to the probation department and his possible additional drug use, we have
no basis to conclude that defense counsel was unaware of the information in the update
letter, that counsel should have objected to the information, or that the information was
false.
{¶ 32} Bozarth suggests in his appellate brief that he would not have entered a
guilty plea “had he realized he would be blindsided with false incriminating information at
sentencing that would go unchallenged by Counsel.” In this case, counsel’s alleged
conduct at sentencing has no bearing on whether Bozarth’s plea was entered knowingly,
intelligently, and voluntarily.
{¶ 33} Finally, Bozarth notes that his two “co-defendants” received community
control sanctions and intervention in lieu of conviction, respectively. Bozarth’s plea
hearing was conducted in conjunction with the plea hearings of three other individuals,
two of whom had the same defense counsel as Bozarth. There is nothing in the record
to suggest that these other individuals were co-defendants. Rather, the record suggests
that the joint plea hearing was conducted as a matter of judicial economy. On this record,
the sentences imposed on the other individuals at the plea hearing are irrelevant to
Bozarth’s sentence and to Bozarth’s ineffective assistance of counsel claim.
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{¶ 34} Bozarth’s second assignment of error is overruled.

Outcome: The trial court’s judgment will be affirmed.

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