Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 CR 511.
Thomas L Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, (For Plaintiff-Appellee).
Gregory A. Price, (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
(¶1} Appellant, Donna M. Rea, appeals from her conviction on one count of illegal assembly or possession of chemicals for the manufacture of drugs ("illegal assembly"), in violation of R.C. 2925.041(A), a felony of the third degree. The charges stem from the purchase of 284 pseudoephedrine tablets between April 13, 2011 and October 23, 2011, and alleges they were purchased to manufacture methamphetamine.
(¶2} On December 15, 2011, the Ashtabula County Grand Jury indicted appellant on two counts of illegal assembly; one count of prohibition against purchasing pseudoephedrine in violation of R.C. 2925.55, a misdemeanor of the first degree; and one count of possessing drug abuse instruments in violation of R.C. 2925.12, a misdemeanor of the second degree. On May 25, 2012, appellant changed her plea from not guilty to guilty in exchange for the state dropping all counts except the first count of illegal assembly. Appellant was sentenced her to a 36-month prison term.
(¶3} Appellant timely appealed and raises the following assignments of error for our review:
(¶4} " The trial courts committed reversible error when they found that a third degree felony carries a presumption of prison.
(¶5} "[2.] Appellant received ineffective assistance of counsel when her trial counsel failed to correct the trial court's conclusion that a third degree felony carries a presumption of prison."
(¶6} The arguments under appellant's third assignment of error have been fully discussed in our opinion in case number 2012-A-0043. Therefore, we will not repeat it here. It is without merit as decided.
(¶7} Under her first assignment of error, appellant argues that the trial court's presumption that a third degree felony carries a presumption of prison is reversible error. We disagree.
(¶8} In reviewing a felony sentence, appellate courts must apply a two-step approach:
(¶9} "First, they must examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed under an abuse-of-discretion standard." State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4.
(¶10} "The first prong of the analysis instructs that 'the appellate court must ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence. As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in R.C. 2953.08(G).'" State v. Stewart, 11th Dist. Lake No. 2008-L-112, 2009-Ohio-921, ¶11, quoting Kalish at ¶14.
(¶11} "If a reviewing court is satisfied that the sentence is not clearly and convincingly contrary to law under the first prong, the court must then engage in the second prong of the analysis, which requires an appellate court to determine whether the trial court abused its discretion in selecting a sentence within the ...