Court of Appeals of Ohio, Twelfth District, Butler
FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
Michael T. Gmoser, Butler County Prosecuting Attorney,
Michael Greer, for plaintiff-appellee.
Charles M. Conliff, for defendant-appellant.
1} Defendant-appellant, Bethany A. Scott, appeals
from the decision of the Butler County Court of Common Pleas
sentencing her to serve six years in prison after she pled
guilty to single counts of robbery and aggravated possession
of drugs. For the reasons outlined below, we affirm.
2} On March 22, 2017, the Butler County Grand Jury
returned a four-count indictment charging Scott with, among
other offenses, robbery and aggravated possession of drugs,
both second-degree felonies. The charges also included
specifications for the forfeiture of an airsoft pistol and
several thousand dollars in cash. According to the bill of
particulars, the charges arose after Scott robbed a Butler
County pharmacy of approximately 2, 000 Oxycodone tablets on
the evening of January 30, 2017. It was alleged that during
the robbery Scott displayed what appeared to be a handgun - a
weapon that was in actuality an airsoft pistol - and ordered
the store clerk to "[g]ive me all the Percocets and no
one will get hurt." The following day, Scott was arrested
after she was found in possession of 854 Oxycodone tablets
and several thousand dollars in cash. It is undisputed that
at the time of her arrest Scott was several months
3} On May 11, 2017, Scott entered into a plea
agreement, wherein she agreed to plead guilty to robbery, a
second-degree felony, and aggravated possession of drugs, a
third-degree felony, in exchange for dismissal of the
remaining charges against her. After conducting the necessary
Crim.R. 11 plea colloquy, the trial court accepted
Scott's guilty plea and confirmed with Scott that she
understood that a prison term was presumed necessary in her
case given the nature of the charges against her. After being
so notified, Scott's trial counsel acknowledged that
Scott understood both charges carried a presumption of prison
that "is very difficult to overcome."
4} On June 15, 2017, the parties reconvened for
purposes of sentencing and Scott's trial counsel notified
the trial court in mitigation that representatives from the
MonDay Community Correctional Institution ("MonDay
program"), one of several community based correctional
facilities ("CBCF") presently operating in the
state, had spoken with Scott earlier that morning about a
potential referral to that facility, but that he was
"not sure that any kind of report or recommendation was
prepared on that basis." Never moving the trial court
for a continuance, Scott's trial counsel then informed
the trial court that he believed Scott was "amenable to
available community control sanctions, " but understood
"that there is a presumption of prison time and [Scott]
understands that going in."
5} Following mitigation, and after Scott herself
addressed the trial court and apologized for her actions, the
trial court again noted that the charges she pled guilty to
carried a presumption of prison. Thereafter, explicitly
stating that it had considered the purposes and principles of
sentencing as found in R.C. 2929.11 and the seriousness and
recidivism factors listed in R.C. 2929.12, the trial court
found Scott was not amenable to community control sanctions
and sentenced her to serve six years in prison. The trial
court then ordered Scott to pay $6, 400 in restitution, as
well as to forfeit the airsoft pistol she used in the robbery
and several thousand dollars in cash. The trial court further
notified Scott that she would be subject to a mandatory
three-year term of postrelease control upon her release from
6} Scott now appeals from the trial court's
decision sentencing her to serve six years in prison, raising
the following single assignment of error for review.
7} THE TRIAL COURT ERRED TO THE APPELLANT'S
PREJUDICE BY IMPOSING A PRISON SENTENCE.
8} Scott argues the trial court erred by sentencing
her to serve six years in prison rather than merely imposing
community control sanctions. In support of this claim, Scott
argues she was "denied the opportunity to demonstrate
that she was, in fact, amenable to an available community
control sanction." Specifically, Scott argues that
because her assessment for the MonDay program had not been
completed prior to her sentencing hearing, the trial court
erred by failing to sua sponte continue the sentencing
hearing in order to obtain a "definitive
determination" as to whether she had "been accepted
or rejected" into the MonDay program "or to have
referred her for an assessment to an alternative CBCF
program, " such as that offered by the River City
Correctional Center ("River City
program"). We disagree.
9} As with all felony sentences, we review this
sentence under the standard of review set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1. Pursuant to that statute, an
appellate court may modify or vacate a sentence only if, by
clear and convincing evidence, "the record does not
support the trial court's findings under relevant
statutes or that the sentence is otherwise contrary to
law." State v. Harp, 12th Dist. Clermont No.
CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence is not
clearly and convincingly contrary to law where the trial
court "considers the principles and purposes of R.C.
2929.11, as well as the factors listed in R.C. 2929.12,
properly imposes postrelease control, and sentences the
defendant within the permissible statutory range."
State v. Ahlers, 12th Dist. Butler No.
CA2015-06-100, 2016-Ohio-2890, ¶ 8. Thus, this court may
"increase, reduce, or otherwise modify a sentence only
when it clearly and convincingly finds that the sentence is
(1) contrary to law or (2) unsupported by the record."
State v. Brandenburg, 146 Ohio St.3d 221,
2016-Ohio-2970, ¶ 1.
10} After a thorough review of the record, we find
Scott's six-year prison sentence was neither clearly and
convincingly contrary to law nor unsupported by the record.
The record makes clear the trial court considered the
purposes and principles of sentencing as found in R.C.
2929.11, as well as the seriousness and recidivism factors
listed in R.C. 2929.12. The record also makes clear the trial
court sentenced Scott within the permissible statutory range
for both charges that she pled guilty to, namely, robbery and
aggravated possession of drugs, one a second-degree felony
and the other a third-degree felony. See R.C.
2929.14(A)(2) and (3) (providing that for a second-degree
felony the prison term shall be between two and eight years,
whereas a prison term for a third-degree felony shall be
between nine to thirty-six months). As the record firmly
establishes, Scott pled guilty to robbing a Butler County
pharmacy of approximately 2, 000 Oxycodone tablets while
displaying what appeared to be a handgun and ordered ...