State v. Whitaker , 2023 Ohio 757 ( 2023 )

[Cite as State v. Whitaker, 2023-Ohio-757.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-22-12
v.
TABITHA LEA WHITAKER, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20212137
Judgment Affirmed
Date of Decision: March 13, 2023
APPEARANCES:
Emily P. Beckley for Appellant
McKenzie J. Klingler for Appellee
Case No. 6-22-12
MILLER, P.J.
{¶1} Defendant-appellant, Tabitha Lea Whitaker, appeals the August 8, 2022
judgment of sentence of the Hardin County Court of Common Pleas. For the
reasons that follow, we affirm.
{¶2} On September 17, 2021, the Hardin County Grand Jury indicted
Whitaker on eight counts: Count One of aggravated possession of drugs in violation
of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony; Count Two of possession of a
fentanyl-related compound in violation of R.C. 2925.11(A), (C)(11)(a), a fifth-
degree felony; Count Three of possession of a fentanyl-related compound in
violation of R.C. 2925.11(A), (C)(11)(b), a fourth-degree felony; Counts Four and
Five of possession of drugs in violation of R.C. 2925.11(A), (C)(2)(a), fifth-degree
felonies; Count Six of possessing drug abuse instruments in violation of R.C.
2925.12(A), (C), a first-degree misdemeanor; Count Seven of illegal use or
possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), (F)(1), a
fourth-degree misdemeanor; and Count Eight of trafficking in a fentanyl-related
compound in violation of R.C. 2925.03(A)(2), (C)(9)(c), a third-degree felony.
Counts One, Two, Three, Four, and Eight contained a specification for the forfeiture
of currency pursuant to R.C. 2941.1417(A). Whitaker appeared for arraignment on
October 18, 2021 and entered a not guilty plea to the counts and specifications in
the indictment.
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{¶3} On January 24, 2022, Whitaker withdrew her pleas of not guilty and,
pursuant to a negotiated-plea agreement, entered pleas of guilty to Counts One,
Three, and Four of the indictment, and their related specifications. In exchange, the
State recommended the trial court dismiss the remaining counts and specifications.
The trial court accepted Whitaker’s pleas and found her guilty. That same day, the
trial court filed its judgment entry of conviction.
{¶4} On August 3, 2022, the trial court sentenced Whitaker to five years of
community control. As a condition of her community control, Whitaker was
required to successfully complete a community based correctional facility (CBCF)
program and follow the recommendations for after-care. Pursuant to the parties’
agreement, the trial court dismissed the remaining counts and specifications in the
indictment. The trial court filed its sentencing entry on August 8, 2022.
{¶5} Whitaker filed a notice of appeal on August 22, 2022. She raises a
single assignment of error for our review.
Assignment of Error
Appellant’s sentence was not supported by sufficient evidence for
the reason the trial court abused its discretion.
{¶6} In her assignment of error, Whitaker argues that the trial court did not
properly consider the purposes and principles of felony sentencing when fashioning
her sentence. Whitaker also argues that her sentence is not supported by the record.
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Standard of Review
{¶7} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
‘only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and
12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that ‘“which will produce
in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.”’” Id., quoting Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus.
Relevant Authority
{¶8} “‘Trial courts have full discretion to impose any sentence within the
statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶
9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing
State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. A sentence
imposed within the statutory range is generally valid so long as the trial court
considered the applicable statutory policies that apply to every felony sentence,
including those contained in R.C. 2929.11, and the sentencing factors of 2929.12.
See State v. Watts, 3d Dist. Auglaize No. 2-20-10, 2020-Ohio-5572, ¶ 10, 14; State
v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31.
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{¶9} R.C. 2929.11 provides, in pertinent part, that the “overriding purposes
of felony sentencing are to protect the public from future crime by the offender and
others, to punish the offender, and to promote the effective rehabilitation of the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” R.C. 2929.11(A). To achieve the overriding purposes of felony
sentencing, R.C. 2929.11 directs courts to “consider the need for incapacitating the
offender, deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or both.”
Id. In addition, R.C. 2929.11(B) instructs that a sentence imposed for a felony “shall
be reasonably calculated to achieve the three overriding purposes of felony
sentencing * * *, commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim, and consistent with sentences
imposed for similar crimes committed by similar offenders.”
{¶10} “In accordance with these principles, the trial court must consider the
factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s
conduct and the likelihood of the offender’s recidivism.” Smith at ¶ 10, citing R.C.
2929.12(A). In addition, the trial court must consider “the factors set forth in [R.C.
2929.12(F)] pertaining to the offender’s service in the armed forces of the United
States.” R.C. 2929.12(A). “‘A sentencing court has broad discretion to determine
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the relative weight to assign the sentencing factors in R.C. 2929.12.’” Smith at ¶
15, quoting State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th
Dist.), citing State v. Arnett, 88 Ohio St.3d 208, 215 (2000).
Analysis
{¶11} Whitaker was sentenced for one count of aggravated possession of
drugs in violation of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony; one count of
possession of a fentanyl-related compound in violation of R.C. 2925.11(A),
(C)(11)(b), a fourth-degree felony; and one count of possession of drugs in violation
of R.C. 2925.11(A), (C)(2)(a), a fifth-degree felony. Each of these offenses carries
the potential of a prison sentence. See R.C. 2929.14(A). However, in lieu of prison,
the trial court is able to impose community control sanctions, the duration of which
shall not exceed five years. See R.C. 2929.15, 2929.16, 2929.17, 2929.19. The trial
court is also authorized to order a term of up to six months at a CBCF as a condition
of community control sanctions. R.C. 2929.16(A)(1). Here, the trial court
sentenced Whitaker to five years of community control. As a condition of
Whitaker’s community control, the trial court ordered her to complete a program at
a CBCF. Accordingly, Whitaker’s sentence is within the statutory range.
{¶12} Whitaker argues that the trial court failed to consider R.C. 2929.11 and
2929.12 when it ordered her to complete the CBCF program, as she did not believe
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she was in need of treatment in a secure facility. However, the record belies her
claims.
{¶13} In the judgment entry of sentence, the trial court stated that it
considered “the principles and purposes of sentencing under Ohio Revised Code
Section 2929.11” and “balanced the seriousness and recidivism factors in Ohio
Revised Code Section 2929.12.” (Doc. No. 39).
{¶14} Additionally, at the sentencing hearing, the trial court made the
following statement prior to announcing Whitaker’s sentence:
I’ve considered the record, I’ve considered the purposes and
principles of sentencing. I certainly have considered your past
history, the history since you finished or came out of recovery court.
* * * [A]s you continue to use drugs you are a danger not only to
yourself, you’re a danger to your family, you’re a danger to the public,
at least I think. And I’ve thought this through a lot, Ms. Whitaker. I
really think this is what needs to be done.
(Aug. 3, 2022 Tr. at 17).
{¶15} Furthermore, although the trial court did not expressly reference R.C.
2929.12 at the sentencing hearing, the trial court did discuss some of the seriousness
and recidivism factors during the sentencing hearing. Specifically, the trial court
engaged in a lengthy discussion with Whitaker regarding her long-standing
struggles with substance abuse and her previous unsuccessful attempts at
rehabilitation. (Aug. 3, 2022 Tr. at 10-17). See R.C. 2929.12(D)(4). While the trial
court did not explicitly reference R.C. 2929.12 during the sentencing hearing, “[a]
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trial court’s statement that it considered the required statutory factors, without more,
is sufficient to fulfill its obligations under the sentencing statutes.” Maggette, 2016-
Ohio-5554, at ¶ 32, citing State v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-
Ohio-4570, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. See
State v. Luttrell, 12th Dist. Warren No. CA2021-07-062, 2022-Ohio-1148, ¶ 25
(“The fact that R.C. 2929.11 and 2929.12 are not expressly referenced during a
sentencing hearing is immaterial when the trial court’s sentencing entry cites to both
statutes.”). Therefore, because Whitaker’s sentence is within the statutory range
and the record supports that the trial court fulfilled its obligation of considering R.C.
2929.11 and 2929.12, Whitaker’s sentence is valid. See Watts, 2020-Ohio-5572, at
¶ 14.
{¶16} Further, although “R.C. 2953.08(G)(2)(a) permits an appellate court
to modify or vacate a sentence if it clearly and convincingly finds that ‘the record
does not support the sentencing court’s findings under’ certain specified statutory
provisions[,] * * * R.C. 2929.11 and 2929.12 are not among the statutory provisions
listed in R.C. 2953.08(G)(2)(a).” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729, ¶ 28. Furthermore, “an appellate court’s determination that the record does
not support a sentence does not equate to a determination that the sentence is
‘otherwise contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶
32. Thus, R.C. 2953.08(G)(2) “does not provide a basis for an appellate court to
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modify or vacate a sentence based on its view that the sentence is not supported by
the record under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. “[A]n appellate court errs
if it * * * modifies or vacates a sentence ‘based on the lack of support in the record
for the trial court’s findings under R.C. 2929.11 and R.C. 2929.12.’” State v.
Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17, quoting Jones at ¶
29.
{¶17} Accordingly, even if we were to agree with Whitaker that her sentence
is not supported by the record under R.C. 2929.11 and 2929.12, we could not vacate
or modify her sentence on that basis. As discussed above, Whitaker’s sentence is
within the statutory range and it is clear that the trial court considered R.C. 2929.11
and 2929.12. Hence, Whitaker’s sentence is not clearly and convincingly contrary
to law, and it must therefore be affirmed. See State v. Slife, 3d Dist. Auglaize No.
2-20-17, 2021-Ohio-644, ¶ 17.
{¶18} Whitaker’s assignment of error is overruled.
{¶19} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of sentence of the Hardin
County Court of Common Pleas.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
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