Court of Appeals of Ohio, Second District, Montgomery
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
L. PINCHOT, Atty. Reg. No. 0071648, Attorney for
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
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
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, ¶ 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 ...