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State v. Wittenberg

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 23, 2017

STATE OF OHIO PLAINTIFF-APPELLANT
v.
MARC D. WITTENBERG DEFENDANT-APPELLEE

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-593183-A

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor, Anthony T. Miranda Assistant County Prosecutor

          ATTORNEYS FOR APPELLEE Roger M. Synenberg Dominic J. Coletta Clare Moran Synenberg & Associates

          BEFORE: Laster Mays, J., Keough, A.J., and Kilbane, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE

         {¶1} Plaintiff-appellant state of Ohio appeals the trial court's decision to sentence defendant-appellee Marc Wittenberg ("Wittenberg") to community control sanctions instead of imprisonment and asks this court to remand for the trial court to state its findings under R.C. 2929.13 justifying a sentence of community control sanctions instead of a term of imprisonment. We remand to the trial court.

         I. Facts

         {¶2} After executing a search warrant on Wittenberg's home, the Southeast Area Law Enforcement Task Force recovered approximately 8, 800 grams of marijuana and 900 grams of packaged hashish. Wittenberg was subsequently charged with trafficking in drugs, drug possession, and possessing criminal tools. Each of these counts had one-year firearm, schoolyard, and juvenile specifications. As part of a plea agreement entered into with the state, Wittenberg pleaded guilty to two counts of trafficking in drugs, a third-degree felony, in violation of R.C. 2925.03(A)(2), and one count of possessing criminal tools, a fifth-degree felony, in violation of R.C. 2923.24(A).

         {¶3} Defense counsel submitted a sentencing memorandum to the state and the trial court. After the state and defense counsel presented statements at sentencing, the trial court sentenced Wittenberg to 12 months of community control sanctions and imposed a $5, 000 fine and court costs. The state timely filed this appeal and assigns two errors for our review:

I. The trial court erred in imposing community control because there was a presumption of prison, and the trial court did not make any findings under R.C. 2929.13 justifying a departure from that presumption; and
II. The trial court erred in imposing community control because there was a presumption of prison, and Wittenberg's conduct was more serious than conduct normally constituting the offense.

         We will address the first assignment of error because it is dispositive of this appeal.

         II. Sentencing

         A. ...


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