State v. Scott

[Cite as State v. Scott, 2018-Ohio-1116.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO :
Plaintiff-Appellee, : CASE NO. CA2017-07-100
: OPINION
- vs - 3/26/2018
:
BETHANY A. SCOTT, :
Defendant-Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2017-02-0263
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Charles M. Conliff, P. O. Box 18424, Fairfield, OH 45018-0424, for defendant-appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Bethany A. Scott, appeals from the decision of the
Butler County Court of Common Pleas sentencing her to serve six years in prison after she
pled guilty to single counts of robbery and aggravated possession of drugs. For the reasons
outlined below, we affirm.
{¶ 2} On March 22, 2017, the Butler County Grand Jury returned a four-count
indictment charging Scott with, among other offenses, robbery and aggravated possession
Butler CA2017-07-100
of drugs, both second-degree felonies. The charges also included specifications for the
forfeiture of an airsoft pistol and several thousand dollars in cash. According to the bill of
particulars, the charges arose after Scott robbed a Butler County pharmacy of
approximately 2,000 Oxycodone tablets on the evening of January 30, 2017. It was alleged
that during the robbery Scott displayed what appeared to be a handgun – a weapon that
was in actuality an airsoft pistol – and ordered the store clerk to "[g]ive me all the Percocets
and no one will get hurt."1 The following day, Scott was arrested after she was found in
possession of 854 Oxycodone tablets and several thousand dollars in cash. It is undisputed
that at the time of her arrest Scott was several months pregnant.2
{¶ 3} On May 11, 2017, Scott entered into a plea agreement, wherein she agreed
to plead guilty to robbery, a second-degree felony, and aggravated possession of drugs, a
third-degree felony, in exchange for dismissal of the remaining charges against her. After
conducting the necessary Crim.R. 11 plea colloquy, the trial court accepted Scott's guilty
plea and confirmed with Scott that she understood that a prison term was presumed
necessary in her case given the nature of the charges against her. After being so notified,
Scott's trial counsel acknowledged that Scott understood both charges carried a
presumption of prison that "is very difficult to overcome."
{¶ 4} On June 15, 2017, the parties reconvened for purposes of sentencing and
Scott's trial counsel notified the trial court in mitigation that representatives from the MonDay
Community Correctional Institution ("MonDay program"), one of several community based
correctional facilities ("CBCF") presently operating in the state, had spoken with Scott earlier
that morning about a potential referral to that facility, but that he was "not sure that any kind
1. While often manufactured to closely resemble the appearance of a real firearm, an airsoft pistol is a replica
weapon that is more colloquially referred to as a BB gun.
2. The record indicates Scott gave birth to her youngest child while being held in the Butler County jail awaiting
trial on the charges subject to this appeal.
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of report or recommendation was prepared on that basis." Never moving the trial court for
a continuance, Scott's trial counsel then informed the trial court that he believed Scott was
"amenable to available community control sanctions," but understood "that there is a
presumption of prison time and [Scott] understands that going in."
{¶ 5} Following mitigation, and after Scott herself addressed the trial court and
apologized for her actions, the trial court again noted that the charges she pled guilty to
carried a presumption of prison. Thereafter, explicitly stating that it had considered the
purposes and principles of sentencing as found in R.C. 2929.11 and the seriousness and
recidivism factors listed in R.C. 2929.12, the trial court found Scott was not amenable to
community control sanctions and sentenced her to serve six years in prison. The trial court
then ordered Scott to pay $6,400 in restitution, as well as to forfeit the airsoft pistol she used
in the robbery and several thousand dollars in cash. The trial court further notified Scott
that she would be subject to a mandatory three-year term of postrelease control upon her
release from prison.
{¶ 6} Scott now appeals from the trial court's decision sentencing her to serve six
years in prison, raising the following single assignment of error for review.
{¶ 7} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY
IMPOSING A PRISON SENTENCE.
{¶ 8} Scott argues the trial court erred by sentencing her to serve six years in prison
rather than merely imposing community control sanctions. In support of this claim, Scott
argues she was "denied the opportunity to demonstrate that she was, in fact, amenable to
an available community control sanction." Specifically, Scott argues that because her
assessment for the MonDay program had not been completed prior to her sentencing
hearing, the trial court erred by failing to sua sponte continue the sentencing hearing in
order to obtain a "definitive determination" as to whether she had "been accepted or
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rejected" into the MonDay program "or to have referred her for an assessment to an
alternative CBCF program," such as that offered by the River City Correctional Center
("River City program").3 We disagree.
{¶ 9} 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
findings under relevant statutes or that the sentence is otherwise contrary to law." State v.
Harp, 12th Dist. Clermont No. 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.
{¶ 10} After a thorough review of the record, we find Scott's six-year prison sentence
was neither clearly and convincingly contrary to law nor unsupported by the record. The
record makes 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. The record also makes clear the trial court sentenced Scott within the permissible
statutory range for both charges that she pled guilty to, namely, robbery and aggravated
3. According to its website, the MonDay program is a CBCF "that provides a secure treatment environment
for probationable felony offenders." Similarly, the website for the River City program states that it is a CBCF
that serves as "a local alternative to prison with the primary purpose of rehabilitation for non-violent, felony
offenders."
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possession of drugs, one a second-degree felony and the other a third-degree felony. See
R.C. 2929.14(A)(2) and (3) (providing that for a second-degree felony the prison term shall
be between two and eight years, whereas a prison term for a third-degree felony shall be
between nine to thirty-six months). As the record firmly establishes, Scott pled guilty to
robbing a Butler County pharmacy of approximately 2,000 Oxycodone tablets while
displaying what appeared to be a handgun and ordered the clerk to "[g]ive me all the
Percocets and no one will get hurt." The serious nature of these offenses, coupled with the
fact that, as the trial court found, the clerk suffered serious psychological harm, supports
the trial court's sentencing decision.
{¶ 11} Scott nevertheless argues the trial court erred by not sua sponte continuing
her sentencing hearing to obtain a "definitive determination" as to whether she had "been
accepted or rejected" into the MonDay program "or to have referred her for an assessment
to an alternative CBCF program," such as the River City program. The trial court, however,
even without receiving a definitive determination regarding whether Scott would be
accepted into any CBCF program, determined that Scott was not amenable to community
control sanctions, of which placement in a CBCF program would be a component. State v.
Hall, 2d Dist. Greene No. 99 CA 94, 2000 Ohio App. LEXIS 328, *4 (Feb. 4, 2000). We find
no error in the trial court's decision. Again, as the record firmly establishes, Scott pled guilty
to robbing a Butler County pharmacy of approximately 2,000 Oxycodone tablets while
displaying what appeared to be a handgun and ordered the clerk to "[g]ive me all the
Percocets and no one will get hurt." The serious nature of these offenses, along with the
serious psychological harm suffered by the clerk, supports this decision.
{¶ 12} In light of the foregoing, we find the trial court did not err by failing to sua
sponte continue Scott's sentencing hearing in order to obtain a "definitive determination" as
to whether she had "been accepted or rejected" into the MonDay program (or any other
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CBCF program) as Scott now suggests. In further support of this decision, we note that
Scott provided neither this court nor the trial court with any evidence indicating she actually
was or would have been accepted into any of the various CBCF programs presently
operating within the state. Scott, therefore, has demonstrated no resulting prejudice.
Accordingly, finding no error in the trial court's decision sentencing Scott to serve six years
in prison, nor any resulting prejudice, Scott's single assignment of error is overruled.
{¶ 13} Judgment affirmed.
HENDRICKSON and M. POWELL, JJ., concur.
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