State v. Betts , 2020 Ohio 4891 ( 2020 )

[Cite as State v. Betts, 2020-Ohio-4891.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-226
v. : (C.P.C. No. 18CR-2361)
Felicia Betts, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 13, 2020
On brief: Dave Yost, Attorney General, and Mark C. Sleeper
for appellee. Argued: Joseph J. Asfoura.
On brief: Yeura R. Venters, Public Defender, and Robert D.
Essex, for appellant. Argued: Robert D. Essex.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Felicia Betts, appeals a judgment of the Franklin
County Court of Common Pleas sentencing her to serve 17 months for Medicaid fraud and
pay restitution in the amount of $214,957.84 to the Ohio Department of Medicaid. The trial
court correctly concluded that Betts abused a position of trust to defraud the State,
permitting the imposition of a prison sentence as punishment for the crime. Because there
was no question raised before the trial court about the scarcity of community control
resources, a statute requiring the trial court to make inquiries about available resources
before sentencing Betts to prison was not applicable. We therefore overrule both of Betts'
assignments of error and affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 15, 2018, a Franklin County Grand Jury indicted Betts, a nurse, for
a single third-degree felony count of Medicaid fraud. (Mar. 15, 2018 Indictment.) Betts
No. 19AP-226 2
initially pled "not guilty" to the charge, but changed her plea to "guilty" to a lesser-included
fourth-degree felony count of Medicaid fraud with an agreed restitution amount of
$214,957.84. (Feb. 19, 2019 Plea Form at 1; Nov. 14, 2018 First Plea Hearing Tr. at 6-8, filed
May 22, 2019; Feb. 19, 2019 Second Plea Hearing Tr. at 5-6, 11, filed May 22, 2019.)
{¶ 3} During the plea hearing, the facts of the case were read into the record as
follows:
[PROSECUTION:] Ms. Betts was originally scheduled to work
as a night-shift nurse for a young child. Was authorized to work
twelve hours a day, seven days week. That began in May of
2016. After working for approximately a month and a half, the
child's parents sought to discontinue the night-shift-nursing
service. At that time, Ms. Betts stopped providing services for
that recipient. However, those hours were still authorized in
the All Services Plan, and that was never changed. So beginning
about a month later, the defendant billed one weekend to the
department of Medicaid and got paid for it. In August, billed a
couple more weekends and continued to get paid. And then
beginning in September of 2016, began billing every week for
seven days a week, twelve hours per day for shifts and was paid
over $214,000, all for shifts that she never worked. During that
two-year period, she continued to get paid those moneys out of
the treasury here in Franklin County.
THE COURT: According to my notes from when we talked
before [at a prior plea hearing], there were 80 separate false
bills; is that right?
[PROSECUTION:] That's correct, Your Honor. There were 80
different times when she had to log in a submit that false
billing.
THE COURT: And has any reimbursement been made yet by
Ms. Betts?
[PROSECUTION:] It's my understanding she made a payment
today of $500 down at the clerk's office.
THE COURT: Any exceptions, [from the Defense]?
[DEFENSE:] Not for purposes of the plea, Your Honor.
(Feb. 19, 2019 Plea Hearing Tr. at 3-4.) A pre-sentence investigation was ordered.
{¶ 4} During the trial court's sentencing hearing, the prosecution argued that,
Betts, who had been an independent Medicaid provider who was permitted to bill the Ohio
No. 19AP-226 3
Department of Medicaid directly, took advantage of her "position of trust" to commit the
offense and therefore could be subjected to prison time pursuant to R.C.
2929.13(B)(1)(b)(vii). (Mar. 14, 2019 Sentencing Tr. at 9, filed May 22, 2019.) The defense
responded that Betts had not occupied a position of trust in relation to the Ohio Department
of Medicaid other than in the colloquial sense in which any customer expects and trusts a
service provider not to falsely overbill for services. Id. at 10. The defense agreed that, had
Betts used her status as a nurse to steal from her patients, it might consider that to be abuse
of a position of trust in the relevant sense, but reiterated that the relationship with the State
was not of that character. Id.
{¶ 5} The trial court orally found that Betts, by virtue of setting herself up in a
position where she could bill the government for services, had acquired a position of trust
which she subsequently abused to enable the crime. Id. In light of the serious financial loss
to the State and what the trial court found to be Betts' less-than-forthcoming responses
during the presentence investigation interview, the trial court sentenced Betts to 17 months
in prison. Id. at 11; Mar. 14, 2019 Jgmt. Entry.
{¶ 6} Betts now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 7} Betts alleges two assignments of error
[1.] The appellant's prison sentence on a felony of the fourth
degree was not supported by the record and was contrary to law
where the court found she was in a position of trust pursuant
to R.C. 2929.13(B)(1)[(b)](viii) where no fiduciary relationship
existed between Ms. Betts and the State of Ohio.
[2.] The trial court's sentence is contrary to law as the court did
not comply with R.C. 2929.13(B)(1)(c) mandating the court to
inquire of ODRC regarding programs that may be available for
the appellant prior to imposing a prison sentence.
III. DISCUSSION
A. Standard of Review
{¶ 8} "Both the state and the defendant have an appeal as of right if a sentence is
'contrary to law.' " State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, ¶ 21, quoting R.C.
2953.08(B)(2); R.C. 2953.08(A)(4). When reviewing an appeal as of right from a criminal
sentence, the Ohio Revised Code instructs:
No. 19AP-226 4
(1) If the sentencing court was required to make the findings
required by division (B) or (D) of section 2929.13 or division (I)
of section 2929.20 of the Revised Code, or to state the findings
of the trier of fact required by division (B)(2)(e) of section
2929.14 of the Revised Code, relative to the imposition or
modification of the sentence, and if the sentencing court failed
to state the required findings on the record, the court hearing
an appeal under division (A), (B), or (C) of this section shall
remand the case to the sentencing court and instruct the
sentencing court to state, on the record, the required findings.
(2) The court hearing an appeal under division (A), (B), or (C)
of this section shall review the record, including the findings
underlying the sentence or modification given by the
sentencing court.
The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this division
if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G); see also State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 7-10,
22-23. Division (F) of R.C. 2953.08 requires us to review the entire trial court record,
including oral and written statements, and presentence reports. R.C. 2953.08(F)(1)
through (4). In short, we consider whether the trial court made the required findings and
whether appellate materials listed in division (F) show, "clearly and convincingly," that the
record at sentencing did not support the trial court's findings or that the sentence was
contrary to law. Marcum at ¶ 22.
B. First Assignment of Error – Whether the Trial Court Erred in
Concluding that Betts Abused a Position of Trust
{¶ 9} R.C. 2929.13(B)(1) contains a list of conditions required for imposing prison
terms on persons convicted of non-violent fourth- or fifth-degree felonies:
No. 19AP-226 5
(a) Except as provided in division (B)(1)(b) of this section, if an
offender is convicted of or pleads guilty to a felony of the fourth
or fifth degree that is not an offense of violence or that is a
qualifying assault offense, the court shall sentence the offender
to a community control sanction or combination of community
control sanctions if all of the following apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) The offender previously has not been convicted of or
pleaded guilty to a misdemeanor offense of violence that the
offender committed within two years prior to the offense for
which sentence is being imposed.
(b) The court has discretion to impose a prison term upon an
offender who is convicted of or pleads guilty to a felony of the
fourth or fifth degree that is not an offense of violence or that is
a qualifying assault offense if any of the following apply:
***
(vii) The offender held a public office or position of trust, and
the offense related to that office or position; the offender's
position obliged the offender to prevent the offense or to bring
those committing it to justice; or the offender's professional
reputation or position facilitated the offense or was likely to
influence the future conduct of others.
R.C. 2929.13(B)(1).1
{¶ 10} The record does not indicate any dispute between the parties about the
sentencing law as applied to Betts' conviction, that is, that Betts was required to be
sentenced to community control unless one of the conditions in division (B)(1)(b) applied.
See R.C. 2929.13(B)(1)(a). Consistent with current R.C. 2929.13(B)(1)(b)(vii) (formerly
division (viii) of the statute), the trial court found that Betts held a position of trust in that
she was permitted to directly bill the Ohio Department of Medicaid for her services and had
1 At the time of Betts' sentencing, the language regarding positions of trust currently found at R.C.
2929.13(B)(1)(b)(vii) was located instead at R.C. 2929.13(B)(1)(b)(viii). See 2019 Am.Sub.H.B. No. 166
(archived online at 2019 Ohio HB 166, Part 2 of 7) (deleting division (B)(1)(b)(iv) and renumbering remaining
divisions accordingly). Additionally, division (B)(1)(a) of R.C. 2929.13 contained four subdivisions (i) through
(iv), but that change does not affect our analysis of this assignment of error. 2019 Am.Sub.H.B. No. 166.
No. 19AP-226 6
used that position of trust to defraud the department. (Mar. 14, 2019 Sentencing Tr. at 9.)
The issue in this assignment of error is whether the record indicates the trial court's finding
that Betts held a position of trust was "clearly and convincingly" not supported or was
contrary to law. R.C. 2953.08(G); Marcum at ¶ 22.
{¶ 11} In State v. Massien, the Supreme Court of Ohio analyzed the "position of
trust" factor at considerable length. 125 Ohio St. 3d 204, 2010-Ohio-1864, ¶ 14-40. It noted
that some districts had found the factor to be met in virtually any case involving a breach
of trust. Id. at ¶ 14. However, it rejected an "unrestrained application of the phrase 'position
of trust' to 'every breach of ethical, moral, or filial duty by a private individual,' " finding
such an application to be "[in]consistent with the sentencing principles set forth by the
General Assembly" which, "as a whole[,] illustrate[d] that the General Assembly intended
a narrow application of the phrase 'position of trust.' " (Citations omitted.) Id. at 21-22. The
high court rather construed "position of trust" to refer to a "special relationship of trust and
confidence equivalent to a fiduciary relationship." Id. at paragraph two of the syllabus. The
high court noted that a fiduciary relationship has been defined as "one in which 'special
confidence and trust is reposed in the integrity and fidelity of another and there is a
resulting position of superiority or influence, acquired by virtue of this special trust.' " Id.
at ¶ 16, quoting In re Termination of Pratt, 40 Ohio St. 2d 107, 115 (1974).2
{¶ 12} Though the principles of law set forth in Massien are useful in this case,
Massien does not directly dictate the result here. That is, in Massien, the high court
considered whether a nurse who stole medicine occupied a position of trust relative to her
employer, the hospital. Massien at ¶ 3. It concluded that her relation was that of employee
to employer, and that she did not "occup[y] a special relationship of trust and confidence
equivalent to a fiduciary relationship." Id. at paragraphs two and four of the syllabus. Here,
the relationship under consideration is the relation between an individual practitioner
acting as a billing service provider and the Ohio Department of Medicaid. In other words,
applying the principles (if not the result) of Massien, the question this Court is to answer is
whether Betts enjoyed a special relationship of trust and confidence equivalent to a
2 "The law has been zealous in guarding against abuse of such a relationship, but the fact of the relationship
must be proved. * * * This question is one of fact, not of title, and can only be answered by examination of the
duties assigned to and performed by the [person in question]." In re Termination of Pratt, 40 Ohio St. 2d 107,
115 (1974).
No. 19AP-226 7
fiduciary relationship with the Ohio Department of Medicaid. Id. at paragraph two of the
syllabus.
{¶ 13} There is no evidence in the record to indicate how exactly Betts came to be in
the position of being able to bill the Ohio Department of Medicaid directly for the services
she provided. However, the relevant administrative code provisions require that providers
seeking to bill the Department must agree "[t]o render medical services as medically
necessary for the patient and only in the amount required by the patient * * *; submit claims
only for services actually performed; and, bill [Ohio Department of Medicaid] for no more
than the usual and customary fee charged other patients for the same service." Ohio
Adm.Code 5160-1-17.2(A). In addition, it is grounds for the Department to propose to
terminate a provider's agreement if "[t]he provider, by any act or omission, has negatively
affected * * * the fiscal or programmatic integrity of the medicaid program." Ohio
Adm.Code 5160-1-17.6(G)(13). The regulations provide for the possibility of audits of
providers and other checks based on a tiered system. Ohio Adm.Code 5160-1-17.8.
However, private duty nurses (as Betts seems to have been) are subject only to "limited"
risk review which does not include site visits or other substantial audit-style oversight.
Compare Ohio Adm.Code 5160-1-17.8(D)(1) with Ohio Adm.Code 5160-1-17.8(D)(2)(b);
see also Ohio Adm.Code 5160-1-17.8 (appendix) (noting that private duty nurses are
screened at the "limited" risk review level).
{¶ 14} The parties do not cite, and nor did we locate, any Ohio caselaw on the nature
of the relationship that exists between medical providers and the State of Ohio in the
context of billing Medicaid or insurers. However, the United States Sixth Circuit Court of
Appeals has held, consistent with the Third, Fourth, Fifth, Seventh, and Ninth Circuits, that
"health care providers, or persons who hold themselves out as providers of care, occupy a
position of trust with respect to both public and private insurance companies if they
exercise professional or managerial discretion in treating patients and in billing for those
treatments, which discretion is given deference by the insurers and helps to facilitate the
crime." United States v. Hodge, 259 F.3d 549, 555-56 (6th Cir.2001) (collecting cases);
accord United States v. Silber, E.D.Mich. No. 09-20223, 2010 WL 5174588, 2010 U.S. Dist.
LEXIS 132442, *31-34 (Dec. 15, 2010). In Hodge, the Sixth Circuit upheld a finding by the
trial court that the defendant, a founder and manager of a substance abuse treatment
No. 19AP-226 8
facility, occupied a position of trust relative to billing healthcare insurance companies and,
by billing them for services not actually provided, abused that trust in order to commit
fraud. Hodge at 555-57. The Sixth Circuit noted the significance of the fact that the
insurance companies are forced to rely on "a presumption of honesty" when reviewing
statements from providers. Id. at 557. This analysis seems consistent with the Ohio
Administrative Code provisions and we therefore consider it persuasive in this case.
{¶ 15} The record leaves no question that Betts occupied a position that obligated
her to act in the fiscal interest of the State in treating her patients and that she was subject
to little or no oversight. Ohio Adm.Code 5160-1-17.2(A); Ohio Adm.Code 5160-1-
17.6(G)(13); Ohio Adm.Code 5160-1-17.8(D)(1), appendix. (Feb. 19, 2019 Plea Hearing Tr.
at 3-4.) The record is likewise clear that she used this position to bill and be paid for illusory
services, for more than one year before her fraud was detected. (Feb. 19, 2019 Plea Hearing
Tr. at 3-4.) Whatever the other circumstances that permitted the situation to develop, we
find the record sufficient to conclude that "confidence and trust [was] reposed in the
integrity and fidelity of [Betts]," that she thereby acquired "a resulting position of
superiority or influence," and that she used it and the accompanying "presumption of
honesty" to defraud the Ohio Department of Medicaid. (Citations and quotations omitted.)
Massien at ¶ 16; Hodge at 557.
{¶ 16} Under the circumstances, the appellate record does not show, "clearly and
convincingly," that the record at sentencing failed to support the trial court's findings or
that the sentence was contrary to law. R.C. 2953.08(G); Marcum, 2016-Ohio-1002, at ¶ 22.
We therefore overrule Betts' first assignment of error.
C. Second Assignment of Error – Whether the Trial Court made
Appropriate Inquiry Regarding Alternative Community Control
Sanctions
{¶ 17} At the time when Betts was sentenced, R.C. 2929.13 included this provision:
If a court that is sentencing an offender who is convicted of or
pleads guilty to a felony of the fourth or fifth degree that is not
an offense of violence or that is a qualifying assault offense
believes that no community control sanctions are available for
its use that, if imposed on the offender, will adequately fulfill
the overriding principles and purposes of sentencing, the
court shall contact the department of rehabilitation and
correction and ask the department to provide the court with
the names of, contact information for, and program details of
No. 19AP-226 9
one or more community control sanctions that are available
for persons sentenced by the court. Not later than forty-five
days after receipt of a request from a court under this division,
the department shall provide the court with the names of,
contact information for, and program details of one or more
community control sanctions that are available for persons
sentenced by the court, if any. Upon making a request under
this division that relates to a particular offender, a court shall
defer sentencing of that offender until it receives from the
department the names of, contact information for, and
program details of one or more community control sanctions
that are available for persons sentenced by the court or for
forty-five days, whichever is the earlier.
If the department provides the court with the names of, contact
information for, and program details of one or more
community control sanctions that are available for persons
sentenced by the court within the forty-five-day period
specified in this division, the court shall impose upon the
offender a community control sanction under division (B)(1)(a)
of this section, except that the court may impose a prison term
under division (B)(1)(b) of this section if a factor described in
division (B)(1)(b)(i) or (ii) of this section applies. If the
department does not provide the court with the names of,
contact information for, and program details of one or more
community control sanctions that are available for persons
sentenced by the court within the forty-five-day period
specified in this division, the court may impose upon the
offender a prison term under division (B)(1)(b)(iv) of this
section.
(Emphasis added.) R.C. 2929.13(B)(1)(c) (prior to Oct. 17, 2019); see 2019 Am.Sub.H.B.
No. 166. Betts argues that the trial court made no inquiry about available community
control programs or resources before sentencing her to prison, and therefore, could not
have legally sentenced her to prison under former R.C. 2929.13(B)(1)(b)(viii). (Betts' Brief
at 12-15.)
{¶ 18} The State agrees that the trial court did not make the above inquiry, but notes
the inquiry under the former section of the law (R.C. 2929.13(B)(1)(c)) was conditioned on
whether a trial court "believe[d] that no community control sanctions [were] available for
its use." R.C. 2929.13(B)(1)(c) (prior to Oct. 17, 2019). (State's Brief at 22-33.) In other
words, the State argues that this division of the statute was intended to require courts, faced
with a lack of community control resources, to make inquiry about other possible resources
No. 19AP-226 10
before sentencing an otherwise community-control-deserving offender to prison. (State's
Brief at 22-33.) It was not intended to prevent a trial court from sending to prison an
offender who deserved prison. See State v. Lawson, 2d Dist. No. 2017-CA-28, 2018-Ohio-
1532.
{¶ 19} The State also suggests a plain error analysis, since the defense did not object
at sentencing on this basis. (State's Brief at 21-24.) The State argues in applying a plain
error analysis that Betts failed to show that the asserted error was "outcome-
determinative." Id. at 24. While we agree that a plain error analysis is appropriate, the plain
error standard under Crim.R. 52(B) permits plain errors or defects to be noticed if
substantial rights were affected. Id. Approximately five years after this rule was adopted,
the Supreme Court stated that "a jury instruction violative of R.C. 2901.05(A) does not
constitute a plain error or defect under Crim. R. 52(B) unless, but for the error, the outcome
of the trial clearly would have been otherwise." State v. Long, 53 Ohio St. 2d 91, 96-97
(1978). This led to a large number of cases that placed emphasis on showing clear outcome
determination as a prerequisite to finding plain error. See, e.g., State v. Pickens, 141 Ohio
St.3d 462, 2014-Ohio-5445, ¶ 109; State v. Osie, 140 Ohio St. 3d 131, 2014-Ohio-2966, ¶ 85.
{¶ 20} We note, however, that in 2015, the Supreme Court, in State v. Rogers, 143
Ohio St. 3d 385, 2015-Ohio-2459, ¶ 22, held that the outcome-determinative analysis for
plain error is based on "a reasonable probability that the error resulted in prejudice" using
"the same deferential standard for reviewing ineffective assistance of counsel claims." Id.,
citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83 (2004) (construing
Fed.R.Crim.P. 52(b), the federal analog to Crim.R. 52(B), and also noting that the burden
of proving entitlement to relief for plain error "should not be too easy"). The Supreme Court
marked the existence of this shift when, two years later, it stated:
Even if the error is obvious, it must have affected substantial
rights, and "[w]e have interpreted this aspect of the rule to
mean that the trial court's error must have affected the
outcome of the trial." [State v. Barnes, 94 Ohio St. 3d 21, 27
(2002).] We recently clarified in State v. Rogers, * * * that the
accused is "required to demonstrate a reasonable probability
that the error resulted in prejudice—the same deferential
standard for reviewing ineffective assistance of counsel
claims." (Emphasis sic.) Id. at ¶ 22, citing [] Dominguez
Benitez, 542 U.S. [at] 81-83.
No. 19AP-226 11
(Underlined emphasis added, but italic emphasis original.) State v. Thomas, 152 Ohio St. 3d
15, 2017-Ohio-8011, ¶ 33; but see id. at ¶ 66 (Fischer, J., dissenting) (indicating that he
would revert to the "clearly would have been otherwise" language).
{¶ 21} Pre-Rogers plain error language (using clear outcome determination) has
been repeated in cases that cite only to pre-Rogers precedent, but cases that have directly
considered the standard in light of Rogers and Thomas have noted the shift. Compare State
v. Tench, 156 Ohio St. 3d 85, 2018-Ohio-5205, ¶ 218, and State v. Myers, 154 Ohio St. 3d
405, 2018-Ohio-1903, ¶ 130, with State v. Ford, 158 Ohio St. 3d 139, 2019-Ohio-4539,
¶ 124; but c.f. State v. Clinton, 153 Ohio St. 3d 422, 2017-Ohio-9423, ¶ 39, and State v.
Cepec, 149 Ohio St. 3d 438, 2016-Ohio-8076, ¶ 67 (citing pre-Rogers cases). Accordingly,
we have observed these Supreme Court decisions, en toto, to point toward a legal standard
for plain error that was clarified and enunciated by Rogers and thereafter highlighted in
Thomas in both the majority decision and dissent. We thus have previously determined
that an accused seeking to show that an obvious error affected his or her substantial rights
(and thereby, the outcome) must "demonstrate a reasonable probability that the error
resulted in prejudice," such that there is a "probability of a different result [that] is sufficient
to undermine confidence in the outcome of the proceeding." (Internal quotations omitted.)
State v. Pippins, 10th Dist. No. 15AP-137, 2020-Ohio-503, ¶ 25; State v. Burney, 10th Dist.
No. 15AP-197, 2020-Ohio-504, ¶ 23; see also Myers, 2018-Ohio-1903, at ¶ 130; Dominguez
Benitez, 542 U.S. at 81-83; Tench, 2018-Ohio-5205, at ¶ 218; Thomas, 2017-Ohio-8011, at
¶ 33; Rogers, 2015-Ohio-2459, at ¶ 22.
{¶ 22} Applying this articulation of plain error to Betts' case, we agree with the State.
The trial court sentenced Betts to prison because it made a finding according to former R.C.
2929.13(B)(1)(b)(viii) that she committed fraud through use of a "position of trust" and
because it considered the offense to have been serious, not because it believed it had no
community control resources available for Betts. (Mar. 14, 2019 Sentencing Tr. at 9-11.) We
find former R.C. 2929.13(B)(1)(c) was inapplicable here. The trial court's failure to make
the inquiry contemplated by that division was not based on any belief by the trial court or
recognition in the record that community control resources were inadequate for Betts'
community supervision in lieu of being locked up. Rather, the record supports the trial
court's decision to impose a prison sentence in that she occupied a position of trust and her
No. 19AP-226 12
crime was serious enough under the sentencing factors to warrant it. We find no obvious
error suggesting a reasonable probability that Betts suffered prejudice such that our
confidence in the outcome of the proceeding was or would be undermined. We thus
overrule Betts' second assignment of error.
IV. CONCLUSION
{¶ 23} The trial court did not err in concluding that Betts, as an independent entity
authorized to directly bill the Ohio Department of Medicaid for in-home health services,
occupied a position of trust that she abused when she fraudulently, for more than a year,
billed for services she never provided and netted over $200,000. It was not error for the
trial court to conclude that Betts' criminal conduct satisfied current R.C.
2929.13(B)(1)(b)(vii) and as a consequence, warranted a prison sentence, even though her
crime was a felony of the fourth degree. Because the trial court did not evince a belief that
no community control resources were available to use in Betts' case, it need not have
inquired under former R.C. 2929.13(B)(1)(c) about the availability of resources before
sentencing her to prison. We, therefore, affirm the judgment of the Franklin County Court
of Common Pleas.
Judgment affirmed.
KLATT and BEATTY BLUNT, JJ., concur.