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State v. Dusek

Court of Appeals of Ohio, Fourth District, Hocking

August 22, 2019

STATE OF OHIO, Plaintiff-Appellant,
v.
KARROLLE-ANN N. DUSEK, Defendant-Appellee.

          CRIMINAL APPEAL FROM COMMON PLEAS COURT

          Benjamin E. Fickel, Hocking County Prosecuting Attorney, Logan, Ohio, for appellant.

          Ryan Shepler, Logan, Ohio, for appellee. [1]

          DECISION AND JUDGMENT ENTRY

          ABELE, J.

         {¶ 1} The State of Ohio, plaintiff below and appellant herein, appeals the sentence that the Hocking County Common Pleas Court imposed on Karrolle-Ann N. Dusek, defendant below and appellee herein. Appellant raises one assignment of error for review:

ASSIGNMENT OF ERROR:
"THE TRIAL COURT'S SENTENCE IS CONTRARY TO LAW:
A. THE TRIAL COURT SENTENCED APPELLANT TO COMMUNITY CONTROL WITHOUT MAKING CERTAIN STATUTORY FINDINGS;
B. THE SENTENCE IS PREMISED ON INCONSISTENT STATUTORY FINDINGS."

         {¶ 2} On June 3, 2017, the Hocking County Sheriffs Department stopped a vehicle after the driver committed a traffic violation. Appellee was a passenger in the vehicle. A later search of the appellee's purse resulted in the seizure of 76 grams of methamphetamine. Appellee also possessed a stolen firearm.

         {¶ 3} Subsequently, appellee pleaded guilty pursuant to a plea agreement to (1) Aggravated Possession of Drugs in violation of R.C. 2925.11(A) and (C)(1)(b), a third degree felony, and (2) Receiving Stolen Property in violation of R.C. 2913.51(A), a fourth degree felony. In exchange for appellee's guilty plea, appellant recommended a three year sentence on count one and a two year sentence on count two, with the sentences to be served consecutively for a total sentence of four years.

         {¶ 4} At the sentencing hearing, and after considering appellee's statement and other various factors, the trial court imposed five years of community control on each count, to be served concurrently. Also, the court notified appellee that a community control violation could result in the imposition of consecutive prison sentences of up to three years for count one and one year for count two, for a total sentence of four years.

         {¶ 5} In its sole assignment of error, appellant asserts that the sentence the trial court imposed is contrary to law. In particular, appellant argues that, in light of appellee's conviction for Aggravated Possession of Drugs in violation of R.C. 2925.11(C)(1)(b), R.C. 2929.13(D) requires a court to make specific judicial findings if the court opts to impose a community control sanction, or a combination of community control sanctions, rather than impose a prison term. Appellant points out that in the case sub judice the trial court disregarded the statutory presumption for prison and, instead, imposed a community control sanction. Therefore, appellant seeks a reversal and remand for resentencing so that the trial court may consider all relevant factors and make all required statutory findings.

         {¶ 6} Appellee candidly agrees that the trial court did not make the necessary statutory findings in order to impose a community control sanction, and further agrees that the court did not make the various findings necessary to impose consecutive sentences. See R.C. 2929.14(C)(4) and R.C. 2929.13(D)(2). Appellee, however, also contends that (1) in this case a community control sanction is entirely proper, especially in view of appellee's progress in overcoming her addiction to drugs, and (2) the trial court has already implicitly determined that it is not necessary to incarcerate the appellee to protect the public from future crime or to ...


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