State v. Scragg ( 2020 )


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  • [Cite as State v. Scragg, 2020-Ohio-5543.]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    STATE OF OHIO                                     :
    :
    Plaintiff-Appellee                        :   Appellate Case No. 28785
    :
    v.                                                :   Trial Court Case Nos. 2019-CR-3629,
    :   2019-CR-3842, 2020-CR-374
    SAMUEL J. SCRAGG                                  :
    :   (Criminal Appeal from
    Defendant-Appellant                       :   Common Pleas Court)
    :
    ...........
    OPINION
    Rendered on the 4th day of December, 2020.
    ...........
    MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
    Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
    Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
    45422
    Attorney for Plaintiff-Appellee
    TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton,
    Ohio 45402
    Attorney for Defendant-Appellant
    .............
    DONOVAN, J.
    -2-
    {¶ 1} Defendant-appellant Samuel J. Scragg appeals his conviction for one count
    of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of the third
    degree; four counts of forgery, in violation of R.C. 2913.31(A)(3), all felonies of the fifth
    degree; one count of possession of cocaine, in violation of R.C. 2925.11(A), a felony of
    the fifth degree; and one count of receiving stolen property, in violation of R.C.
    2913.51(A), a felony of the fourth degree. Scragg filed a timely notice of appeal on April
    13, 2020.
    {¶ 2} On December 10, 2019, Scragg was indicted in Montgomery C.P. No. 2019-
    CR-3629 for one count of aggravated possession of drugs and one count of use of or
    possession with intent to use drug paraphernalia. On January 6, 2020, Scragg was
    indicted in Montgomery C.P. No. 2019-CR-3842 for three counts of forgery and two
    counts of petty theft. On March 4, 2020, in Montgomery C.P. No. 2020-CR-374, Scragg
    was charged by bill of information with one count of receiving stolen property, one count
    of possession of cocaine, and two counts of forgery.
    {¶ 3} Also on March 4, 2020, Scragg pled guilty to one count of aggravated
    possession of drugs in Case No. 2019-CR-3629; two counts of forgery in Case No. 2019-
    CR-3842; and one count of receiving stolen property, one count of possession of cocaine,
    and two counts of forgery in Case No. 2020-CR-374, in exchange for his pleas, the State
    dismissed the remaining counts and agreed to an overall sentencing limit of 18 months in
    prison.
    {¶ 4} On March 18, 2020, the trial court sentenced Scragg to prison as follows: 12
    months for aggravated possession of drugs in Case No. 2019-CR-3629; 12 months on
    each of the two forgery counts in Case No. 2019-CR-3842; 12 months on each of the two
    -3-
    forgery counts and the single count of possession of cocaine in Case No. 2020-CR-374;
    and 15 months for the single count of receiving stolen property in Case No. 2020-CR-
    374. The trial court ordered that all of Scragg’s sentences be served concurrently for an
    aggregate sentence of 15 months in prison.
    {¶ 5} It is from this judgment that Scragg now appeals.
    {¶ 6} Scragg’s sole assignment of error is as follows:
    THE TRIAL COURT ERRED BY IMPOSING A SENTENCE OF FIFTEEN
    MONTHS IN PRISON.
    {¶ 7} Scragg contends that the trial court erred when it imposed a 15-month prison
    term because it improperly considered the safety of local institutions compared to that of
    state prisons when it calculated his sentence.       Specifically, Scragg argues that the
    following statements made by the trial court at sentencing established that the court erred
    when it crafted his sentence:
    These are unusual times, and we know, we’ve been in touch with the health
    authorities, and the jail ain’t no place to be right about now. * * * And I feel
    for these guys, who are – they’re there because it’s their job, and they’re
    doing their job, and they always do a good job for us, but we can’t – we’re
    not putting anybody in STOP. We’re drawing down that population, same
    reason. We ain’t got any doctors out there. We don’t have any nurses out
    there. No place to be right about now. * * * So we’re doing the same thing
    at the MonDay program. So in my judgment, the safest place for you to be
    right now is at – in one of the State institutions. They actually have doctors
    there.    They actually have nurses there.          They got mental health
    -4-
    professionals there. That’s a far better place to be, far safer, so that’s how
    I’m going to proceed[.] * * *
    Tr. 25-26. The trial court then went on to say that, in fashioning Scragg’s sentence, it
    had considered the “principles and overriding purposes of sentencing that are set out in
    the Code, including avoiding unnecessary burden on government resources, the
    seriousness and recidivism factors in the Code, the dictates of [R.C.] 2929.13, and as
    otherwise set out in the Code * * *.” Tr. 26.
    {¶ 8} Additionally, we note that the judgment entries for Case Nos. 2019-CR-3629,
    2019-CR-3842, and 2020-CR-374 each contain the following language:
    The Court has reviewed and considered a written report of a pre-sentence
    investigation submitted by the Division of Criminal Justice Services of this
    Court and has considered the factors under Sections 2929.11, 2929.12 and
    2929.13, as well as all other relevant provisions of the Revised Code. * * *
    {¶ 9} 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 does not support certain specified findings or (2) that the sentence
    imposed is contrary to law.
    “The trial court has full discretion to impose any sentence within the
    -5-
    authorized statutory range, and the court is not required to make any
    findings or give its reasons for imposing maximum * * * sentences.” State v.
    King, 2013-Ohio-2021, 
    992 N.E.2d 491
    , ¶ 45 (2d Dist.). However, a trial
    court must consider the statutory criteria that apply to every felony offense,
    including those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard,
    
    194 Ohio App. 3d 500
    , 2011-Ohio-3864, 
    957 N.E.2d 55
    , ¶ 11 (2d Dist.),
    citing State v. Mathis, 
    109 Ohio St. 3d 54
    , 2006-Ohio-855, 
    846 N.E.2d 1
    ,       ¶
    38. * * * R.C. 2929.12(B) sets forth nine factors indicating that an offender's
    conduct is more serious than conduct normally constituting the offense,
    whereas R.C. 2929.12(C) sets forth four factors indicating that an offender's
    conduct is less serious than conduct normally constituting the offense.
    Similarly, R.C. 2929.12(D) and (E) each lists five factors that trial courts are
    to consider regarding an offender being more or less likely to commit future
    crimes.
    Although statutory maximum sentences do not require any of the
    findings specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found
    it appropriate “for appellate courts to review those sentences that are
    imposed solely after consideration of the factors in R.C. 2929.11 and
    2929.12 under a standard that is equally deferential to the sentencing court.
    That is, an appellate court may vacate or modify any sentence that is not
    clearly and convincingly contrary to law only if the appellate court finds by
    clear and convincing evidence that the record does not support the
    sentence.” Marcum at ¶ 23.
    -6-
    State v. Roberts, 2d Dist. Montgomery No. 2018-CA-27, 2019-Ohio-49, ¶ 6-8.
    {¶ 10} Here, the record establishes that the trial court did not formulate Scragg’s
    sentences exclusively based upon its opinions regarding the safety of various penal
    institutions in Ohio.   As previously stated, the trial court imposed a sentence of 12
    months in prison for each of Scragg’s fifth-degree felony convictions, the maximum
    sentence.    R.C. 2929.14(A)(5).     The trial court imposed a 12-month sentence for
    Scragg’s third degree felony conviction, three months more than the minimum sentence
    for that level of offense. R.C. 2929.14(A)(3)(b).      For Scragg’s fourth-degree felony
    conviction, the trial court imposed a sentence of 15 months in prison, nine months more
    than the minimum sentence for that level of offense.
    {¶ 11} It is clear from the record before us that the trial court crafted Scragg’s
    sentences based upon his presentence investigation report and the pertinent statutory
    factors, namely those enumerated in R.C. 2929.11 and 2929.12. The trial court stated
    its reasoning on the record and repeated it in the judgment entry for each case. It is
    within the discretion of the individual judge “to determine the weight to assign a particular
    statutory factor.” State v. Arnett, 
    88 Ohio St. 3d 208
    , 215, 
    724 N.E.2d 793
    (2000). When
    making such judgments, the sentencing court “is not required to divorce itself from all
    personal experiences and make [its] decision in a vacuum.”
    Id. at 215-216,
    quoting State
    v. Cook, 
    65 Ohio St. 3d 516
    , 529, 
    605 N.E.2d 70
    (1992). In this case, the trial court
    considered the statutory factors in R.C. 2929.11 and R.C. 2929.12, and the individual
    sentences were within the statutory ranges for those offenses. Additionally, pursuant to
    R.C. 2929.12(A), a trial court “has discretion to determine the most effective way to
    comply with the purposes and principles of sentencing set forth in section 2929.11 of the
    -7-
    Revised Code.” Therefore, we find the trial court’s rationale for sending Scragg to a state
    institution was not clearly and convincingly unsupported by the record, since it had the
    discretion to consider the availability of medical personnel in various institutions, among
    other factors, when imposing sentence. Furthermore, this was not a singular count, but
    rather three separate charging instruments which led to seven felony convictions.
    {¶ 12} Scragg’s assignment of error is overruled.
    {¶ 13} Scragg’s assignment of error having been overruled, the judgments of the
    trial court are affirmed.
    .............
    FROELICH, J. and HALL, J., concur.
    Copies sent to:
    Mathias H. Heck, Jr.
    Jamie J. Rizzo
    Travis Kane
    Hon. Steven K. Dankof
    

Document Info

Docket Number: 28785

Judges: Donovan

Filed Date: 12/4/2020

Precedential Status: Precedential

Modified Date: 4/17/2021