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State v. Raypole

Court of Appeals of Ohio, Sixth District, Sandusky

July 12, 2019

State of Ohio Appellee
v.
Billy J. Raypole Appellant

          Trial Court No. 18 CR 76

          Timothy Braun, Sandusky County Prosecuting Attorney, and Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

          Brett A. Klimkowsky, for appellant.

          DECISION AND JUDGMENT

          MAYLE, P.J.

         {¶ 1} Defendant-appellant, Billy J. Raypole, appeals the October 16, 2018 judgment of the Sandusky Court of Common Pleas, sentencing him to 180 days in jail following his conviction of possession of cocaine. For the following reasons, we affirm the trial court's judgment.

         I. Background

         {¶ 2} On August 28, 2018, Billy J. Raypole entered a plea of guilty to possession of cocaine, a violation of R.C. 2925.11(A) and (C)(4)(a), a fifth-degree felony. The trial court accepted Raypole's plea, found him guilty, ordered a presentence investigation report ("PSI"), and continued the matter for sentencing. On October 12, 2018, the court sentenced Raypole to 180 days in the Sandusky County jail and imposed the costs of prosecution and court-appointed counsel. His conviction and sentence were memorialized in a judgment journalized on October 16, 2018. Raypole appealed and assigns a single error for our review:

The Trial Court's sentence of Billy J. Raypole ("Appellant") is excessive and violates the law concerning the purpose of felony sentencing.

         II. Law and Analysis

         {¶ 3} Raypole challenges the length of his sentence. He argues that his sentence should be reduced or vacated because the trial court did not consider the minimum sanction necessary to punish him and protect the public, as required by R.C. 2929.11, and because the record is devoid of any indication that the court considered the seriousness and recidivism factors under R.C. 2929.12. Raypole claims that the court fashioned his sentence based upon its impression that Raypole suffers from an ongoing substance abuse problem when it should instead have considered community-control sanctions and available rehabilitative options. He maintains that the trial court imposed the sentence based on his history of "a lot of minor offenses," but he insists that he has already been punished for those offenses. Finally, Raypole points out that the state recommended community control as part of the plea agreement (which he acknowledges the court was not bound to follow), and he argues that there was a presumption against imprisonment under R.C. 2929.13(B)(1)(a), which the court ignored.

         {¶ 4} We review a challenge to a felony sentence under R.C. 2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise modify a sentence or may vacate the sentence and remand the matter to the sentencing court for resentencing 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.

         {¶ 5} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio- 425, ¶ 15, we recognized that State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, provides guidance in determining whether a sentence is clearly and convincingly contrary to law for purposes of R.C. 2953.08(G)(2)(b). In Kalish, the Ohio Supreme Court held that where the trial court expressly states that it considered the purposes and principles of sentencing in R.C. 2929.11 and the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease control, and sentences the defendant within the statutorily-permissible range, the sentence is not clearly and convincingly contrary to law. Kalish at ¶ 18.

         {¶ 6} We begin by noting that under certain circumstances, there is a presumption of community control for ...


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