State v. Mitchell , 2019 Ohio 5270 ( 2019 )

[Cite as State v. Mitchell, 2019-Ohio-5270.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-12
:
v. : Trial Court Case No. 2018-CR-328
:
SARAH MITCHELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 20th day of December, 2019.
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DAVID M. MORRISON, Atty. Reg. No. 0087487, Greene County Prosecutor’s Office,
Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
WILLIAM O. CASS JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 117,
Kettering, Ohio 45429
Attorney for Defendant-Appellant
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FROELICH, J.
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{¶ 1} Sarah Mitchell pled guilty in the Greene County Court of Common Pleas to
aggravated possession of drugs, a third-degree felony. The trial court sentenced her to
the maximum term of three years in prison. Mitchell appeals from her conviction,
claiming that the trial court erred in imposing the maximum prison sentence. For the
following reasons, the trial court’s judgment will be affirmed.
{¶ 2} The presentence investigation report (PSI) reveals the following facts.
{¶ 3} On September 13, 2017, Mitchell was seated with two other individuals in a
parked vehicle at a Taco Bell in Fairborn when police officers approached the vehicle.
Taco Bell employees had advised the officers that that the vehicle had been parked for
more than hour and the occupants may be intoxicated. Mitchell, who was in the driver’s
seat, told the officers that they were homeless and living out of the car. Mitchell gave
the officers permission to search the vehicle. In the front passenger side area, officers
located a McDonald’s bag with a loaded syringe inside. (The front-seat passenger
denied knowing about the syringe and claimed that the McDonald’s bag was not hers.)
{¶ 4} After being placed in a cruiser, Mitchell was asked if there was anything else
in the car. Mitchell responded that she was not sure, but “there is a pill bottle with a clear
liquid in my backpack.” Officers located a pill bottle with no label and a clear liquid in a
black backpack on the driver’s seat. Mitchell told the officers that the liquid was a “clear
form of meth” and that it belonged to her front-seat passenger, but she had taken it
because of “the addict in her [Mitchell].” The substance was field-tested and found to be
positive for methamphetamine. Mitchell was placed in handcuffs, at which time a syringe
cap fell out of her pocket.
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{¶ 5} The PSI reflects that, at the time of the offense, Mitchell was on community
control for trafficking in heroin, a felony of the fourth degree, in Hocking C.P. No. 2015-
CR-0134.
{¶ 6} In May 2018, Mitchell was indicted on one count of aggravated possession
of drugs, a third-degree felony, based on her possession of a pill bottle filled with Mountain
Dew with some methamphetamine mixed with it. Mitchell, who then resided in Perry
County, was arrested on the charge on July 22, 2018, and was released on bond soon
thereafter. She pled not guilty at her arraignment on August 3, 2018. Mitchell failed to
appear for a pretrial conference on August 29, and a capias was issued for her arrest.
{¶ 7} In September 2018, the parties reached a plea agreement. In consideration
for Mitchell’s plea of guilty to the charged offense, the State recommended that she
receive community control with inpatient chemical dependency treatment. The State
further recommended the minimum mandatory fine if Mitchell were found not to be
indigent. At the plea hearing on September 20, the trial court informed Mitchell that it
was not required to accept the State’s recommendation and that it wanted Mitchell to
participate in a presentence investigation so that it could determine an appropriate
sentence, which could be either prison or community control.
{¶ 8} The trial court set a bond of $15,000 (no ten percent) pending sentencing.
Mitchell posted a bond on October 15, 2018. One of her bond conditions included that
she report to the Adult Probation Department for her presentence interview on October
23, 2018. Sentencing was scheduled for November 15, 2018.
{¶ 9} According to the PSI, on October 17, 2018, two days after her release,
Mitchell allegedly committed trafficking in heroin, a felony of the second degree, and
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permitting drug abuse, a felony of the fifth degree, in Perry County. See Perry C.P. No.
2018-CR-0097. On October 23, Mitchell left a voice mail with the Greene County Adult
Probation Department, asking to reschedule her PSI interview that was scheduled for that
afternoon. A probation officer repeatedly attempted to reach Mitchell, but was
unsuccessful. On November 6, a probation officer requested a capias for Mitchell’s
arrest due to Mitchell’s failure to report to the Adult Probation Department or return any
phone calls. Mitchell was arrested in Perry County on December 31, 2018 related to
charges in that county, and was arrested on the Greene County bond violation on January
4, 2019.
{¶ 10} At sentencing on February 28, 2019, defense counsel told the court that
Mitchell “has some significant drug issues seeming to stem since 2014” and “it’s apparent
that she has a pretty severe addiction to many drugs.” Counsel stated that Mitchell had
successfully completed treatment at one time at a community-based correctional facility
(CBCF), but continued to struggle. Counsel noted that the degree of the offense in this
case was largely due to the amount of Mountain Dew in the pill bottle, as opposed to the
amount of methamphetamine. Counsel acknowledged that Mitchell was “a candidate for
prison at this time having been through CBCF,” but counsel expressed concern with
Mitchell’s going to prison because she (Mitchell) would be surrounded by people who
would encourage addiction. Counsel asked the court to consider ordering Mitchell to
complete inpatient treatment again before imposing a prison sentence.
{¶ 11} Speaking on her own behalf, Mitchell indicated that she was an addict and
“really could benefit from more treatment.” Mitchell wanted an opportunity to be a parent
to her three children, who she stated were in her mother’s custody.
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{¶ 12} The trial court imposed the maximum sentence of 36 months in prison.
The court explained its reasons, stating:
The first thing I want to say to you is – and I want you to understand,
and I’d hope most people involved in this process would understand this –
I have true empathy for an addict, a person who is in the grip of drugs; and
I do appreciate having been here a fairly long time and seeing many people
sitting in your chairs that grip doesn’t let go, and it’s hard, regardless what
people want to do, to overcome that.
And I suppose if anyone had a magic wand to be able to do
something that would fix an addition, we would want to do that.
It’s basically running the criminal justice system. Nine out of ten
people who come to this court, their case has something to do with drugs,
whether it’s a drug offense itself or they’re high on drugs or did something
to get money for drugs. It is the criminal justice system – the addiction and
the people that do these things.
What the courts try to do is take steps to offer opportunities for people
because ultimately it’s not any court order that fixes people. It’s the
individual’s choice.
Having said that, I still recognize the difficulties for a person’s
addiction, particularly when the addiction is heroin, but any addiction long-
term has a negative [e]ffect on people.
Ultimately the Court has a lot of considerations in a disposition, and
one of the considerations is, what is in your best interest? What can we do
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to help you in a manner and in an environment that might make sense, that
might be something that you would embrace?
I don’t know really where you are in terms of your ability or your
desire to overcome your addiction. I mean, I know people say they want
to overcome an addition, and I hear that, and I appreciate that; but that’s –
it’s easy to say the words. It’s hard to follow that road, and I appreciate
that as well.
Now, I do have to tell you this: The case that’s in front of me also
requires me to make a generalized statement, not just to you, but to the
public at large; and I emphasize that with my previous comment that drugs
are running the justice system.
Your addiction has resulted in your committing a lot of offenses, and
here’s probably what’s driving my decision more than anything else, and
this is something you’ve done in the past.
You committed a crime in Hocking County, and you were on
probation; but while you’re on Community Control in Hocking County, you
committed the crime in this county.
When you – and this is probably equally bad – while you were
released on bond in this county, you know what you did. Two days later,
you’re committing another felony offense in another county. I know it’s not
done yet, but you were charged with that.
The mere fact that you were in a position to have probable cause to
be charged does not bode well.
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Your addiction takes me to the point of saying, I just don’t have a
spot for you on Community Control that’s going to work for you.
I have to do something that accomplishes two things: One, gets you
into an environment that if you want drug treatment, it’s going to be available
to you; and, secondly, since you’ve never been sent to prison before, to ask
you – to have you ask yourself a question, is this where I want to go in my
life?
Now, I don’t know where they’re going to send you, but I’ve been to
Marysville before. Probably not a place that people are living out the
dream, and so you’ve got to decide ultimately is this the future I’m seeking
or do I have to work hard to try something else?
Now, I’m not your father. I’m not trying to lecture you. I apologize
if you take it as that. I’m doing this for me because I want you to
understand why I’m doing what I’m doing.
I’m imposing a prison sentence. This prison sentence is going to be
of a duration that will provide an opportunity for you.
I’m not going to order this. There’s a program at the institution
known as the Tapestry Program.1 The reason I think it’s a good program
is, they do not allow judges to order anyone into that program. They only
allow people who say, I want to do this program.
1 The Tapestry program is a therapeutic community located within the Ohio Reformatory
for Women in Marysville, Ohio. It serves 90 alcohol/drug dependent women, housed
separately from the general population, and helps participants “develop skills they need
to maintain sobriety and live a pro-social life.” CompDrug, Tapestry (ORW),
https://www.compdrug.com/tc/tapestry (accessed Dec. 4, 2019).
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If you are interested in some form of treatment that might have an
impact upon your future, th[en] my advice is, you are – when you get to the
institution say that you want to enter the Tapestry Program, and they’ll
screen you for that.
Now, personally I think you’re a great candidate for the program, and
they should accept you into the program; and, again, you’re going to have
a sentence that’s long enough that will provide that opportunity to do that,
because it’s a long-term program, which I believe are the best programs
because you don’t go in 90 days and get cured. It doesn’t happen.
I mean, you kind of put your toe in the water and you know how –
what the temperature is, but you haven’t taken a bath yet, and that’s what
these long-term programs do. They immerse you in the understanding of
what it takes to address a drug addiction, so that’s why I’m doing what I’m
doing, and we’ll proceed. * * *
(Footnote added.)
{¶ 13} The trial court then found that a prison term was consistent with the
purposes and principles of sentencing and that Mitchell was not amenable to community
control sanctions. The court further found that community control would demean the
seriousness of Mitchell’s conduct and would not place an unnecessary burden on
government resources. As stated above, the court imposed 36 months in prison, the
maximum sentence.
{¶ 14} Mitchell appeals from her conviction, claiming that “the trial court’s decision
to impose a maximum sentence is clearly and convincingly not supported by the record.”
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{¶ 15} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
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. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,
2017-Ohio-4097, ¶ 6.
{¶ 16} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies 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.
{¶ 17} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes 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). The court must “consider the need for incapacitating the
offender, deterring the offender and others from future crime, rehabilitating the offender,
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and making restitution to the victim of the offense, the public, or both.” Id. R.C.
2929.11(B) further provides 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.”
{¶ 18} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct
is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth
four factors indicating that an offender’s conduct is less serious than conduct normally
constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts
are to consider regarding the offender’s likelihood of committing future crimes. Finally,
R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service
record, if any.
{¶ 19} For purposes of sentencing, a court “is not confined to [considering] the
evidence that strictly relates to the conviction offense because the court is no longer
concerned * * * with the narrow issue of guilt.” State v. Bowser, 186 Ohio App. 3d 162,
2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.); State v. Davis, 2d Dist. Clark No. 2018-
CA-49, 2019-Ohio-1904, ¶ 47. Sentencing courts may consider, for example, “hearsay
evidence, facts related to charges that were dismissed pursuant to a plea bargain, and
allegations contained in a PSI report.” State v. Bautista, 2d Dist. Clark No. 2015-CA-74,
2016-Ohio-5436, ¶ 12, citing State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-
Ohio-4248, ¶ 8.
{¶ 20} The PSI reflects that Mitchell’s drug offenses date back to December 2008,
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when she was convicted in the Hocking County Municipal Court of possession of
marijuana and drug paraphernalia. In 2014, she pled guilty in two separate cases in the
Perry County Municipal Court to possession of drug abuse instruments and “marijuana
paraphernalia.” In 2016, Mitchell was convicted of trafficking in heroin, a fourth-degree
felony, in Hocking County, for which she received an “unknown jail sanction” and was
placed on community control. The instant offense, a third-degree felony, was committed
while she was on community control, and she allegedly committed two additional felony
drug offenses in October 2018 in Perry County – trafficking in heroin and permitting drug
abuse – two days after her release on bond in this case. In short, the severity of
Mitchell’s drug offenses had escalated recently, substantiating defense counsel’s
argument that Mitchell had a “pretty severe addiction” when sentencing occurred.
{¶ 21} The trial court’s three-year sentence was within the permissible range of
sentences for a violation of R.C. 2925.11(A), see R.C. 2929.14(A)(3)(b), and the trial court
provided an extensive explanation of its reasons for imposing that sentence. In short,
the trial court found that Mitchell was not amenable to community control, and that the
maximum sentence was necessary to afford her enough time to obtain drug treatment in
prison. Because Mitchell’s sentence was lawful, we focus on whether it was clearly and
convincingly unsupported by the record.
{¶ 22} Mitchell had not previously served a prison sentence, but we cannot
conclude, on this record, that a prison sentence was clearly and convincingly unsupported
by the record. Mitchell committed the instant offense while on community control and
twice violated the terms of her bond while this case was pending. The second time, she
allegedly committed new drug offenses two days after her release on bond pending
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sentencing and she failed to comply with the bond condition that she participate in the
presentence investigation. Although the State recommended community control (in
accordance with the plea agreement), the court could have reasonably concluded that
Mitchell was not amenable to community control.
{¶ 23} While Mitchell’s argument on appeal focuses on the trial court’s imposition
of a prison sentence rather than community control, she further claims that the court erred
in imposing the maximum sentence. A lengthy prison sentence which is at least for the
offender’s “own good” must be reviewed in light of R.C. 2929.11(A)’s purpose of
“promot[ing] 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.” (Emphasis added.) Before imposing
the maximum sentence, a trial court should consider the significant toll inherent in lengthy
prison sentences, such as the effect on an offender’s future housing, employment, family
relationships, social support networks, and the like, as well as the economic costs.2 In
addition, although the trial court indicated a familiarity with the Tapestry program, the
availability of long-term treatment programs in the prison setting, particularly given the
prevalence of drug addiction as an underlying cause of criminal activity, is not always
present. The unfortunate reality is that the demand for addiction treatment far exceeds
the available programs, both in prison and in the community. Here, there is no indication
that court did not consider these or other relevant factors.
{¶ 24} We cannot conclude that the trial court’s imposition of the three-year
2
See, e.g., Leipold, Is Mass Incarceration Inevitable?, 56 Am. Crim. L.Rev. 1579 (2019);
Jain, Capitalizing on Criminal Justice, 67 Duke L.J. 1381 (2018).
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sentence is clearly and convincingly unsupported by the record in this case. Defense
counsel and Mitchell acknowledged – and her continuing and escalating drug offenses
reflect – that Mitchell had a severe addiction and that treatment was needed. Mitchell
had previously completed (successfully) a treatment program at a community-based
correctional facility, but had relapsed. Whether another court may have exercised its
discretion differently and imposed community control or a less than maximum sentence
in an attempt to provide her an opportunity for treatment is immaterial; the trial court’s
three-year sentence, in this case, is not clearly and convincingly unsupported by the
record.
{¶ 25} Mitchell’s assignment of error is overruled.
{¶ 26} The trial court’s judgment will be affirmed.
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WELBAUM, P.J. and DONOVAN, J., concur.
Copies sent to:
David M. Morrison
William O. Cass Jr.
Hon. Stephen Wolaver