State v. Alspaugh

[Cite as State v. Alspaugh, 2018-Ohio-801.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
CASE NO. CA2017-09-011
Plaintiff-Appellee, :
OPINION
: 3/5/2018
- vs -
:
COURTNEY D. ALSPAUGH, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 17CR12266
Martin P. Votel, Preble County Prosecuting Attorney, Preble County Courthouse, 101 East
Main Street, Eaton, Ohio 45320, for plaintiff-appellee
Kim Bui, 8080 Beckett Center Drive, Suite 112, West Chester, Ohio 45069, for defendant-
appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Courtney D. Alspaugh, appeals from her conviction in
the Preble County Court of Common Pleas after she pled guilty to involuntary manslaughter
and aggravated trafficking in drugs. For the reasons outlined below, we affirm.
{¶ 2} On February 6, 2017, the Preble County Grand Jury returned a six-count
indictment charging Alspaugh with, among other offenses, involuntary manslaughter, a first-
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degree felony, and aggravated trafficking in drugs, a fourth-degree felony. The charges
arose after it was alleged Alspaugh and a co-defendant provided a lethal dose of heroin to
the victim, S.B., thus causing her to overdose and die. A short time later, on February 15,
2017, and after an attorney was appointed to represent her, Alspaugh appeared at her
arraignment hearing and entered a plea of not guilty. The matter was then scheduled for a
jury trial to be held on April 17, 2017.
{¶ 3} On April 3, 2017, Alspaugh moved for a continuance, which the trial court
granted, thereby rescheduling her jury trial for May 30, 2017. At the state's request, the jury
trial was then continued to June 26, 2017. Thereafter, on June 9, 2017, two weeks before
her jury trial was scheduled to begin, Alspaugh filed a motion requesting new counsel be
appointed to represent her at trial. In support of her motion, Alspaugh claimed she was "not
getting actively represented" by her appointed counsel. Alspaugh further claimed that
"[c]ommunication has been limited" with her appointed counsel and that she had "not
received information like court dates."
{¶ 4} On June 16, 2017, the trial court held a hearing on Alspaugh's motion for new
counsel. At this hearing, Alspaugh claimed she was "not being informed about anything,"
and that although her appointed counsel claimed to have called, she "never got anything. I
don't, I'm not real sure why." In response, Alspaugh's appointed counsel claimed she had
spoken with Alspaugh about her case multiple times both in person and on the phone.
Alspaugh's appointed counsel further claimed that she "had not received by (sic) voice mails
from her, so at this point, you know, I have spoken to her on multiple occasions. We met
at some length and gone over the discovery." Following this hearing, the trial court issued
a decision denying Alspaugh's motion for new counsel.
{¶ 5} On June 29, 2017, Alspaugh entered into a plea agreement, wherein she
agreed to plead guilty to involuntary manslaughter and aggravated trafficking in drugs in
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exchange for dismissal of the remaining charges against her. After engaging Alspaugh in
the necessary Crim.R. 11 plea colloquy, the trial court accepted Alspaugh's guilty plea and
scheduled the matter for sentencing. Approximately one month later, on August 24, 2017,
the trial court sentenced Alspaugh to serve an aggregate five-year prison term. The trial
court also notified Alspaugh she would be subject to a mandatory term of up to five years
of postrelease control.
{¶ 6} Alspaugh now appeals from her conviction, raising two assignments of error
for review.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S REQUEST
FOR NEW COUNSEL.
{¶ 9} In her first assignment of error, Alspaugh argues the trial court erred by
denying her request for the appointment of new counsel after claiming she was "in the dark,"
did not know what was "going to be going on," and did not receive a return phone call from
her appointed counsel. We disagree.
{¶ 10} "An indigent defendant has no right to have a particular attorney represent
him and therefore must demonstrate 'good cause' to warrant substitution of counsel." State
v. Liso, 12th Dist. Brown Nos. CA2013-11-013 and CA2013-11-016, 2014-Ohio-3549, ¶ 7.
The term "good cause" includes a conflict of interest, a complete breakdown in
communication, or an irreconcilable conflict which leads to an apparently unjust result.
State v. Bullock, 12th Dist. Clermont No. CA2005-04-031, 2006-Ohio-598, ¶ 13. The
decision whether to substitute an appointed attorney for an indigent defendant is within the
trial court's sound discretion. State v. Bizzell, 12th Dist. Clinton No. CA2006-04-015, 2007-
Ohio-2160, ¶ 6. This court reviews a trial court's decision denying a defendant's request to
substitute appointed counsel under an abuse of discretion standard. State v. Hubbard, 12th
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Dist. Warren No. CA2007-01-008, 2008-Ohio-2630, ¶ 5. An abuse of discretion implies that
the court's decision was unreasonable, arbitrary, or unconscionable, and not merely an
error of law or judgment. State v. Tyree, 12th Dist. Fayette No. CA2016-09-012, 2017-
Ohio-4228, ¶ 9.
{¶ 11} After a thorough review of the record, we find no error in the trial court's
decision denying Alspaugh's motion for appointment of new counsel. Although Alspaugh
claims otherwise, the record indicates Alspaugh was adequately represented by her
appointed counsel at all times relevant. This includes Alspaugh's appointed counsel
negotiating an advantageous plea deal that ultimately resulted in Alspaugh being sentenced
to a reduced sentence of five years in prison. Therefore, while Alspaugh may have wanted
further attention from her appointed trial counsel, nothing in the record indicates Alspaugh's
appointed counsel was in any way deficient in her representation of Alspaugh before the
trial court. Accordingly, finding no error in the trial court's decision, Alspaugh's first
assignment of error is overruled.
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO FIVE
YEARS IN PRISON, CONSIDERING THE DEFENDANT'S LACK OF CRIMINAL
HISTORY.
{¶ 14} In her second assignment of error, Alspaugh argues the trial court decision to
sentence her to five years in prison was excessive considering her lack of criminal history.
We again disagree.
{¶ 15} As with all felony sentences, we review this sentence under the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, ¶ 1. Pursuant to that statute, an appellate court may modify or vacate a sentence
only if, by clear and convincing evidence, "the record does not support the trial court's
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findings under relevant statutes or that the sentence is otherwise contrary to law." State v.
Harp, 12th Dist. Clermont CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence is not clearly
and convincingly contrary to law where the trial court "considers the principles and purposes
of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease
control, and sentences the defendant within the permissible statutory range." State v.
Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. Thus, this court may
"increase, reduce, or otherwise modify a sentence only when it clearly and convincingly
finds that the sentence is (1) contrary to law or (2) unsupported by the record." State v.
Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1.
{¶ 16} After a thorough review of the record, we find Alspaugh's five-year prison
sentence was neither clearly and convincingly contrary to law nor unsupported by the
record. In so holding, we note that although not explicitly stated on the record during her
sentencing hearing, it is clear the trial court considered the purposes and principles of
sentencing as found in R.C. 2929.11, as well as the seriousness and recidivism factors
listed in R.C. 2929.12. State v. Lancaster, 12th Dist. Butler No. CA2007-03-075, 2008-
Ohio-1665 (affirming a sentence where the trial court did not state at the sentencing hearing
that the court considered R.C. 2929.11 or R.C. 2929.12 specifically, but stated its
consideration of both statutes in its judgment entry of conviction).
{¶ 17} The record also makes clear that the trial court sentenced Alspaugh within the
permissible statutory range for a first-degree felony. See R.C. 2929.14(A)(1) ("[f]or a felony
of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, ten, or
eleven years"). Therefore, while it may be true that Alspaugh did not have any criminal
history, as the trial court properly found, the charges upon which she pled guilty were
"extremely serious" and resulted in the loss of a person's life. Accordingly, because the trial
court's decision to sentence Alspaugh to five years in prison was not excessive given the
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facts and circumstances of this case, Alspaugh's second assignment of error is likewise
without merit and overruled.
{¶ 18} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.
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