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State v. Brown

Court of Appeals of Ohio, Second District, Montgomery

August 16, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JAMES T. BROWN Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case Nos. 2018-CR-2603 and 2018-CR-2274

          MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Attorney for Plaintiff-Appellee

          PAMELA L. PINCHOT, Atty. Reg. No. 0071648, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} In Montgomery C.P. No. 2018-CR-2274, James T. Brown appeals from a judgment entry of conviction following a plea of guilty to one count of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. He was sentenced to 12 months in prison. In Montgomery C.P. No. 2018-CR-2603, Brown appeals from a judgment entry of conviction following a plea of guilty to petty theft, in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. In Case No. 2018-CR-2603, Brown was sentenced to 180 days in the Montgomery County Jail, to be served concurrently with the sentence in Case No. 2018-CR-2274. Brown asserts that his maximum sentences were not clearly and convincingly supported by the record and/or were contrary to law. We hereby affirm the judgment of the trial court.

         {¶ 2} On August 6, 2018, Brown was indicted for aggravated possession of drugs. He failed to appear for his arraignment on September 4, 2018. On September 26, 2018, he was charged by way of a bill of information with petty theft. On September 27, 2018, Brown pled guilty to both offenses. At the plea hearing, the court indicated that Brown had "verbally waived the right to grand jury as well as the 24-hour rule," and that Brown had signed the appropriate forms to memorialize his waiver in the misdemeanor case.

         {¶ 3} Brown was sentenced on October 25, 2018. The court indicated that it had reviewed Brown's presentence investigation report and that it considered the purposes and principles of sentencing and the seriousness and recidivism factors in imposing sentence for the felony offense. The court advised Brown that, upon his release, he may be required to serve three years of post-release control under the supervision of the parole board. The court disapproved placement in programs of shock incarceration and intensive program prison because of Brown's criminal history. The court noted in each case that Brown was entitled to 36 days of jail time credit.

         {¶ 4} Brown asserts the following assignment of error:

THE TRIAL COURTS IMPOSITION OF SENTENCE, WHICH WAS THE MAXIMUM SENTENCE OF 12 MONTHS IN PRISON FOR DEFENDANT-APPELLANTS CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE, A FELONY OF THE FIFTH DEGREE, AND SIX (6) MONTHS IN PRISON FOR DEFENDANT-APPELLANTS CONVICTION OF THEFT, A MISDEMEANOR OF THE FIRST DEGREE, IS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD AND/OR IS CONTRARY TO LAW.

         {¶ 5} Brown asserts that, applying the purposes and principles of sentencing contained in R.C. 2929.11 and the sentencing factors contained in R.C. 2929.12 to his case, the maximum sentence was not appropriate. He argues that there was no evidence to support a finding that any factor contained in R.C. 2929.12 existed, which would support the conclusion that his conduct was more serious than that normally constituting the offense. Brown argues that there was, however, evidence in the record to support a finding under R.C. 2929.12(C)(3) that his conduct was less serious than conduct normally constituting the offense, "in that [the] very nature of the charges -possession of drugs and petty theft - demonstrate that [Brown] did not expect to cause physical harm to any person or property." Brown argues that there was also evidence that he was not likely to commit future crimes, as set forth in R.C. 2929.12(E)(3) and (5), insofar as he had "lived a law-abiding life for a significant number of years prior to committing the offense[s] and he exhibited genuine remorse."

         {¶ 6} The State notes that this appeal may be moot as it relates only to the imposition of the maximum sentences; it also argues that Brown's sentence was not contrary to law, and that the sentence was supported by the record.

         {¶ 7} The Ohio Department of Rehabilitation and Correction's website indicates that Brown was placed on transitional control with supervision by the Adult Parole Authority on March 22, 2019, for a period of six months. In other words, he is serving the last six months of his felony sentence on transitional control. A violation of transitional control could result in Brown's return to the institution to serve the balance of his felony sentence. R. C. 2967.26(F). Because he has not completed his sentence, his appeal is not moot.

         {¶ 8} As this Court has noted:

When reviewing felony sentences, appellate courts apply the standard of review found in R.C. 2953.08(G)(2), not an abuse of discretion standard. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ΒΆ 9. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it "clearly and convincingly" finds either (1) that the record ...

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