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Date: 03-29-2021
Case Style:
State of Ohio v. Janie Arbogast,
Case Number: 20CA1119
Judge: Michael D. Hess
Court: IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
Plaintiff's Attorney: David Kelley, Adams County Prosecutor, and Kris D. Blanton, Adams County Assistant
Prosecutor
Defendant's Attorney:
OR
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Description:
Circleville, OH - Criminal defense attorney represented Janie Arbogast with a grand theft charge.
In October 2019, the Adams County grand jury indicted Arbogast on one
count of illegal assembly or possession of chemicals for the manufacture of drugs in
violation of R.C. 2925.041(A), a third-degree felony; one count of arson in violation of
R.C. 2909.03(A)(1), a fourth-degree felony; and one count of grand theft in violation of
R.C. 2913.02(A)(1), a fourth-degree felony. The trial court dismissed the illegal
assembly count with prejudice on the state’s motion, and Arbogast pleaded guilty to the
grand theft count in exchange for dismissal of the arson count. During the change of
plea hearing, Arbogast told the court that she had gotten “extremely high” on
methamphetamine, taken a vehicle she believed belonged to a friend of hers, and when
she learned it did not, she burned the vehicle.
{¶3} At the sentencing hearing, the trial court noted that Arbogast was 40 years
old, had a ninth-grade education, and had been employed at Crossroads Dairy Bar.
Defense counsel represented to the court that the business shut down due to the
COVID-19 pandemic, and Arbogast was scheduled to start a new job at Driveline
Merchandising the day after the sentencing hearing. The court noted that Arbogast had
been enrolled in mental health services through Shawnee Mental Health for a year but
wanted to discontinue services due to a disagreement with staff and had been referred
to Family Recovery Services (“F.R.S.”) in March 2020. Defense counsel told the court
that Arbogast enrolled with F.R.S. in June 2020 for mental health and drug and alcohol
counseling. Arbogast reported that she had not used alcohol since 2012, completed Adams App. No. 20CA1119 3
drug and alcohol treatment at STAR in 2018, and had not used drugs since September
2019. Defense counsel represented that Arbogast remained drug free after her release
from county jail in December 2019 and had checked in with the probation department as
required. The trial court observed that Arbogast’s criminal history spanned over 20
years and included four prior felony convictions and five misdemeanor convictions. She
had community control revoked in 1999 and 2000 and was on community control in two
cases when she committed the grand theft offense. The court noted her score on the
Ohio Risk Assessment System indicated she was “at a moderate risk of re-offending
without structured programming.” The court found that she was not amenable to
available community control sanctions, highlighting the fact that she had been placed on
community control before but “the same thing keeps happening”—new violations with
new victims. The court sentenced Arbogast to 15 months in the Ohio Department of
Rehabilitation and Corrections and ordered her to pay $1,277 in restitution.
II. ASSIGNMENT OF ERROR
{¶4} Arbogast assigns the following error for our review: “The trial court erred
by imposing a fifteen-month prison sentence that was not supported by the record.”
III. LAW AND ANALYSIS
{¶5} In her sole assignment of error, Arbogast asserts that her sentence is not
supported by the record. She maintains that her sentence is excessive and that the
court should have imposed a term of community control instead of a prison term. Citing
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, she asserts
that we must apply the standard of review in R.C. 2953.08(G)(2) and conclude that her
sentence is invalid because the trial court “did not adequately consider the statutory Adams App. No. 20CA1119 4
sentencing factors.” Arbogast maintains that a prison term will not benefit her or society.
She notes that she has some history of employment. She admits that she was on
community control when she committed the grand theft offense but states that she “has
never been to the Ohio Department of Corrections.” Arbogast asserts that she has a
severe drug problem, which likely caused her to commit the grand theft offense, and
she has mental health issues. She claims that she needs treatment, not incarceration,
and notes that she previously completed treatment at STAR, abstained from using
drugs and alcohol after her release from jail in December 2019, and has “started the
treatment process” by enrolling in F.R.S. Arbogast also notes that she checked in with
the probation department while out on bond.
{¶6} R.C. 2953.08(G)(2) provides:
The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
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. The appellate
court’s standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division 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.
{¶7} In Marcum, the Supreme Court of Ohio stated:
We note that some sentences do not require the findings that R.C.
2953.08(G) specifically addresses. Nevertheless, it is fully consistent for
appellate courts to review those sentences that are imposed solely after
consideration of the factors in R.C. 2929.11 and 2929.12 under a standard Adams App. No. 20CA1119 5
that is equally deferential to the sentencing court. That is, an appellate
court may vacate or modify any sentence that is not clearly and
convincingly contrary to law only if the appellate court finds by clear and
convincing evidence that the record does not support the sentence.
Marcum at ¶ 23. However, in State v. Jones, Slip Opinion No. 2020-Ohio-6729, at ¶ 27,
the court recently clarified that the statements in Marcum at ¶ 23 are dicta. The court
held that R.C. 2953.08(G)(2) does not permit an appellate court to review whether the
record supports a sentence as a whole under R.C. 2929.11 and 2929.12. Id. at ¶ 30.
The court stated:
Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently
weigh the evidence in the record and substitute its judgment for that of the
trial court concerning the sentence that best reflects compliance with R.C.
2929.11 and 2929.12. In particular, R.C. 2953.08(G)(2) does not permit
an appellate court to conduct a freestanding inquiry like the independent
sentence evaluation this court must conduct under R.C. 2929.05(A) when
reviewing a death penalty-sentence. See State v. Hundley, ___ Ohio
St.3d ___, 2020-Ohio-3775, ___ N.E.3d ___, ¶ 128 (recognizing that R.C.
2929.05(A) requires de novo review of findings and other issues within its
scope).
Id. at ¶ 42.
{¶8} Arbogast essentially asks this court to independently weigh the evidence
in the record and substitute our judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11, which sets forth the purposes
and principles of felony sentencing, and R.C. 2929.12, which addresses factors to be
taken into account when imposing a sentence under R.C. 2929.11. Based on Jones,
we conclude that R.C. 2953.08(G)(2) does not permit us to conduct this type of review.
We observe that in State v. Patrick, Slip Opinion No. 2020-Ohio-6803, ¶ 15, the
Supreme Court of Ohio explained that “R.C. 2953.08 does not prescribe the sole right to
appeal a criminal sentence.” However, we are unaware of any other statutory provision Adams App. No. 20CA1119 6
that permits the type of sentencing review Arbogast seeks.
Outcome: Accordingly, we overrule the sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: