[Cite as State v. Kegley,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 3-16-06

v.

BART W. KEGLEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Crawford County Common Pleas Court Trial Court No. 14-CR-0072

Judgment Affirmed

Date of Decision: December 29, 2016

APPEARANCES:

Adam Charles Stone for Appellant

Matthew E. Crall for Appellee Case No. 3-16-06

SHAW, P.J.

{¶1} Defendant-appellant, Bart W. Kegley, appeals the May 26, 2016,

judgment of the Crawford County Court of Common Pleas revoking his community

control sanctions and imposing a prison term of sixty-seven months. On appeal,

Kegley argues that the trial court erred in (1) revoking his community control, (2)

failing to notify him that he would be subject to a specific term of prison upon

violating community control, and (3) imposing a prison term not supported by the

record.

{¶2} On April 14, 2014, the Crawford County Grand Jury returned a three-

count indictment against Kegley on Count One: Possession of Drugs—to wit:

Marijuana, in violation of R.C. 2925.11(C)(3)(d), a felony of the third degree; Count

Two: Possession of Drugs—to wit: cocaine, in violation of R.C. 2925.11(C)(4)(a),

a felony of the fifth degree; and Count Three: Illegal Cultivation of Marijuana, in

violation of R.C. 2925.04(A) & (C)(5)(d), a felony of the second degree, due to the

allegation that the offense was committed in the vicinity of a juvenile. Kegley

pleaded not guilty to the charges.

{¶3} On September 23, 2014, Kegley entered into a negotiated plea

agreement and plead guilty to Counts One and Two as stated in the indictment, and

Count Three was amended to remove the allegation that the offense was committed

in the vicinity of a juvenile, thereby reducing the level of the offense to a felony of

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the third degree. The plea agreement called for Kegley to be sentenced to a five-

year term of community control with the understanding that Kegley is subject to a

total prison term of eighty-four months if he failed to complete the term of

community control. On the same day, the trial court accepted Kegley’s guilty pleas

and entered a sentence consistent with the terms of the plea agreement.

Accordingly, pursuant to its September 23, 2014 Judgment Entry, Kegley was

placed on a five-year term of community control and was notified that he is subject

to an eighty-four-month prison term if he failed to successfully complete community

control.

{¶4} On August 24, 2015, a motion was filed by State Probation Officer

Mark Stalter requesting the trial court issue a show cause order for Kegley to

demonstrate why his community control should not be revoked. Probation Officer

Stalter alleged that Kegley had violated the terms of his community control

supervision on or about August 19, 2015, by (1) possessing marijuana, (2)

possessing drug paraphernalia, (3) testing positive for the use of Cocaine, and (4)

testing positive for the use of Marijuana.

{¶5} On November 30, 2015, Kegley appeared before the trial court for a

hearing on the motion for revocation of his community control. Kegley admitted to

violating the terms of his community control and the case proceeded to sentencing.

In its December 7, 2015 Judgment Entry, the trial court revoked Kegley’s

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community control based upon his admissions at the hearing and other matters

evidencing Kegley’s conduct while on supervision. The trial court then imposed

the maximum prison term on each of the three counts and ordered the prison terms

to run consecutively for a total stated prison term of eighty-four months.

{¶6} Kegley appealed the trial court’s decision to revoke his community

control and to impose a prison term of maximum, consecutive sentences.

{¶7} On May 16, 2016, this Court reversed the trial court’s sentence as

contrary to law because it failed to make the statutory findings necessary to impose

consecutive sentences found in R.C. 2929.14(C)(4). Accordingly, the case was

remanded to the trial court. See State v. Kegley, 3d Dist. Crawford No. 3-15-20,

.

{¶8} On May 25, 2016, the trial court held a new hearing on the motion for

revocation of Kegley’s community control. Kegley again admitted to the conduct

comprising the violations of his community control. The trial court heard extensive

arguments from both parties regarding the consequences for Kegley’s violations.

The State advocated for the imposition of a prison term, while defense counsel

insisted that an alternative sanction would be more appropriate. After considering

the arguments from both sides and reviewing documentation from an outpatient

drug treatment center submitted by Kegley, the trial court stated on the record its

findings based upon the relevant statutory factors to support its decision to impose

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a prison term. The trial court then imposed a prison term of thirty months on Count

One, Possession of Marijuana, a seven-month prison term on Count Two,

Possession of Cocaine, and a thirty-month prison term on Amended Count Three,

Illegal Cultivation of Marijuana. The trial court ordered the prison terms to run

consecutive for a total stated prison term of sixty-seven months.

{¶9} Kegley filed this appeal, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. I THE TRIAL COURT COMMITTED PLAIN ERROR IN VIOLATION OF R.C. 2929.13(E)(2) WHEN IT REVOKED APPELLANT’S COMMUNITY CONTROL AND SANCTIONED HIM TO ANY PRISON TERM IN CONNECTION WITH THE VIOLATION OF APPELLANT’S COMMUNITY CONTROL IN DIRECT CONTRAVENTION OF THE STATUTE’S PROHIBITION.

ASSIGNMENT OF ERROR NO. II THE TRIAL COURT’S FINDINGS OF FACT UNDER R.C. 2929.12, R.C. 2929.13(E)(2), R.C. 2929.14, AND R.C. 2929.15(B) ARE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE IN THE RECORD OF THE PROCEEDINGS HELD BY THE TRIAL COURT ON MAY 25, 2016.

ASSIGNMENT OF ERROR NO. III THE TRIAL COURT COMMITTED PLAIN ERROR IN VIOLATION OF R.C. 2929.15(B)(5) WHEN IT REVOKED APPELLANT’S COMMUNITY CONTROL AND SANCTIONED HIM TO A PRISON TERM WITHOUT SPECIFICALLY NOTIFYING APPELLANT OF THE SPECIFIC PRISON TERM TO WHICH HE WOULD BE SUBJECT FOR VIOLATING COMMUNITY CONTROL.

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{¶10} For ease of discussion, we elect to address the assignments of error

together and out of order.

Third Assignment of Error

{¶11} In his third assignment of error, Kegley maintains that the trial court

erred at his original sentencing hearing in 2014 when it placed him on five years of

community control and failed to adequately notify him that he is subject to a specific

prison term if he violated the terms of his community control. The premise of

Kegley’s argument is based purely on semantics. Kegley claims that upon placing

him on community control in 2014, the trial court only informed him that he was

“subject to” an eighty-four-month prison term if he violated the terms of his

community control, and asserts that he was not notified by the trial court that it

“would” impose a prison term, as opposed to an alternative sanction, as a

consequence of his community control violations.

{¶12} The record establishes that the trial court notified Kegley in the

sentencing entry placing him on community control that “if [he] fails to successfully

complete community control that [he] is subject to thirty-six (36) months of prison

on Count I; twelve (12) months in prison on Count II; and thirty-six (36) months

[in] prison on amended Count III for a total of eighty-four months in prison.” (Doc.

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No. 23 at 2).1 Kegley has not cited any relevant authority to support his position on

appeal. Rather, the cases he cites involve scenarios distinguishable from the one

implicated in the case at hand. Accordingly, we find no merit in Kegley’s argument

that he received inadequate notification of the possible prison sanctions for violating

his community control.

First Assignment of Error

{¶13} In his first assignment of error, Kegley argues that the trial court

committed plain error in revoking his community control and in imposing a prison

term upon him for violating the terms of his community control. Specifically,

Kegley directs this court to R.C. 2929.13(E), which states:

(1) Except as provided in division (F) of this section, for any drug offense that is a violation of any provision of Chapter 2925. of the Revised Code and that is a felony of the third, fourth, or fifth degree, the applicability of a presumption under division (D) of this section in favor of a prison term or of division (B) or (C) of this section in determining whether to impose a prison term for the offense shall be determined as specified in section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06, 2925.11, 2925.13, 2925.22, 2925.23, 2925.36, or 2925.37 of the Revised Code, whichever is applicable regarding the violation.

(2) If an offender who was convicted of or pleaded guilty to a felony violates the conditions of a community control sanction imposed for the offense solely by reason of producing positive results on a drug test, the court, as punishment for the violation of the sanction, shall not order that the offender be imprisoned unless the court determines on the record either of the following:

1 A transcript of the original sentencing proceedings was not made a part of the record. Therefore, we shall presume regularity in those proceedings that the same notification was given to Kegley in open court.

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(a) The offender had been ordered as a sanction for the felony to participate in a drug treatment program, in a drug education program, or in narcotics anonymous or a similar program, and the offender continued to use illegal drugs after a reasonable period of participation in the program.

(b) The imprisonment of the offender for the violation is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code.

{¶14} On appeal, Kegley characterizes his violations of community control

as solely producing a positive drug test. However, in addition to testing positive for

marijuana and cocaine on August 19, 2015, Kegley was also found to be in

possession of marijuana and in possession of drug paraphernalia. Thus, because

Kegley’s violations of his community control sanctions were not based solely on a

positive drug test, R.C. 2929.13(E)(2) was not implicated. Even assuming,

arguendo, that R.C. 2929(E)(2) applies to this case, the trial court stated on the

record that it considered principles and purposes of sentencing in R.C. 2929.11 and

found imposing a prison term for Kegley’s violations of community control to be

appropriate. Accordingly, we find no merit in Kegley’s contention on this basis and

overrule the first assignment of error.

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Second Assignment of Error

{¶15} In his second assignment of error, Kegley argues that the trial court’s

decision to impose a prison sentence, instead of an alternative non-residential

sanction or drug treatment program, for his violations of community control is not

supported by the record. Pursuant to the Supreme Court of Ohio’s recent holding

in State v. Marcum,

,

, this court will review

a felony sentence using the standard set forth in R.C. 2953.08. Section 2953.08 of

the Revised Code governs appeals based on felony sentencing guidelines.

Subsection (G)(2) sets forth this court’s standard of review as follows:

(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.

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{¶16} The Supreme Court in Marcum also declared that “it is fully consistent

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.”

.

{¶17} Clear and convincing evidence is that measure or degree of proof

which is more than a mere “preponderance of the evidence,” but not to the extent of

such certainty as is required “beyond a reasonable doubt” in criminal cases, and

which will produce in the mind of the trier of facts a firm belief or conviction as to

the facts sought to be established. Cross v. Ledford,

, (1954),

paragraph three of the syllabus.

{¶18} Revised Code Chapter 2929 governs sentencing. Revised Code

2929.11 provides, in pertinent part, that the “overriding purposes of felony

sentencing are to protect the public from future crime by the offender and others and

to punish 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). In advancing these purposes,

sentencing courts are instructed to “consider the need for incapacitating the

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offender, deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or both.”

{¶19} Meanwhile, R.C. 2929.11(B) states that felony sentences must be

“commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim” and also be consistent with sentences imposed in

similar cases. In accordance with these principles, the trial court must consider the

factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s

conduct and the likelihood of the offender’s recidivism. R.C. 2929.12(A).

{¶20} “Although the trial court must consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.

2929.12, the sentencing court is not required to ‘State on the record that it considered

the statutory criteria or discuss[ed] them.’ State v. Maggette, 3d Dist. Seneca No.

13–16–06,

, quoting State v. Polick,

(4th Dist. 1995). “A trial court’s statement that it considered the required

statutory factors, without more, is sufficient to fulfill its obligations under the

sentencing statutes.”

citing State v. Abrams, 8th Dist. Cuyahoga No. 103786,

2016–Ohio–4570, citing State v. Payne,

,

, ¶ 18.

{¶21} On remand in this case for resentencing, the trial court devoted a great

deal of time on the record to stating its reasons supporting its determination that a

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prison sentence was the appropriate sanction for Kegley’s community control

violations. As previously indicated, Kegley admitted to his conduct consisting of

the four violations of his community control: (1) possessing marijuana, (2)

possessing drug paraphernalia, (3) testing positive for marijuana on a drug test, and

(4) testing positive for cocaine on a drug test.

{¶22} In determining the appropriate sanction for Kegley’s community

control violations, the trial court discussed his prior criminal record which was

detailed in the post-sentence investigation report. The trial court noted that in 1995

Kegley committed criminal damaging by slashing tires in a parking lot. When law

enforcement apprehended Kegley, they found brass knuckles in his possession. The

trial court stated that it did not intend to give this offense “a huge amount of weight

in this particular case,” but stated it was significant because “that’s the beginning of

when criminal behavior began to creep up” in Kegley’s life. (May 25, 2016 Hrg. at

25).

{¶23} In 2011, Kegley was convicted of minor misdemeanor possession of

marijuana. Two years later, in 2013, Kegley was convicted of possession of

marijuana in violation of a Crestline City Ordinance. The trial court noted that the

facts of the offense indicated that Kegley’s vehicle was pulled over by law

enforcement and $827.90 in small bills was found in the vehicle, in addition to the

marijuana. Kegley received thirty days in jail suspended and was placed on two

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years of community control. It was while Kegley was on community control for

this prior case that he committed the drug-related felonies in this case.

{¶24} The trial court also discussed the underlying felony offenses for which

Kegley was placed on the five-year term of community control in this case. In

March of 2014, the Crawford County Sheriff’s Office executed a search warrant of

Kegley’s home, based upon information from a source who indicated that Kegley

maintained and sold a large amount of marijuana from his home, and also sold

smaller amounts of cocaine.

{¶25} Law enforcement indicated that the odor of marijuana was

overpowering upon entering the home. Officers encountered an eighteen-year-old

and a sixteen-year-old, who appeared to be the children of Kegley and his longtime

girlfriend and co-defendant. A fifteen-year-old girl was also found in the home.

Law enforcement made contact with Kegley and took him into custody as he began

yelling out a string of numbers to his girlfriend. Kegley’s girlfriend was found in

the master bedroom with a large quantity of marijuana and a loaded .22 rifle. She

was also taken into custody. A sweep of the home revealed several drug

paraphernalia items, various quantities of marijuana stashed throughout the home,

and a smaller amount of cocaine. Nine firearms, many loaded with ammunition,

were also found in the home. Some of these firearms were located in a gun safe,

along with some cash and a large amount of marijuana, and some were found

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strategically hidden in places—e.g., three handguns were found on top of the

furnace ducts. Two of the juveniles were found in the basement where a large

quantity of marijuana and the three handguns were located.

{¶26} The officers moved to the pole barn where the source had indicated a

large amount of marijuana was stored. There, they discovered a grow operation

consisting of 93 marijuana plants, along with grow lights, buckets, gauges, heating

items, large amount of potting soil and other marijuana-related grow items.

{¶27} The trial court found it significant that Kegley’s criminal record

demonstrated that “[a]t no point has he ever been able to successfully complete any

community control.” (May 25, 2016 Hrg. at 36). The trial court also noted the

significance of the nature of Kegley’s community control violations in this case—

i.e., possession of marijuana and of drug paraphernalia—as being very similar to the

underlying offenses for which he was placed on community control, which also

indicated a lack of amenability to community control sanctions.

{¶28} For his part, Kegley maintained that he sought treatment at

Maryhaven, a local outpatient drug treatment facility, and claimed to take his

substance abuse treatment seriously. Kegley provided documents from Maryhaven

to the trial court, which demonstrated that he took six urine drug test at the facility,

with one test producing a negative result and five producing an “inconclusive” result

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due to his creatine level being out of range, indicating that his urine had been diluted.

(May 25, 2016 Hrg. at 33).

{¶29} In considering this proposed mitigating evidence, the trial court stated

that “[n]ow, the Court is quite familiar with creatine being out of range. And, in

fact, if you look down here [referring to the test results documentation] where they

talk about his tests they gave him, let me see, there’s one, two, three, four, five, six,

they actually say one negative test but they actually consider those five

[inconclusive results] positive tests if you want to go all the way down and look at

the fine print.” (Id.) The trial court observed that “it appears Mr. Kegley was saying

the right things. It doesn’t appear that he was doing the right things” and noted that

Kegley had demonstrated a pattern of either avoiding or failing to take drug

treatment seriously. (Id. at 34, 36).

{¶30} In addition to the four violations of his community control, to which

he admitted, the trial court also cited the severity of the underlying facts in this case,

Kegley’s criminal history, specifically his unsuccessful completion of community

control, and his lack of commitment to drug treatment as factors supporting its

decision to revoke Kegley’s community control and to impose a prison term upon

him. The trial court also determined on the record that the imposition of a sixty-

seven-month prison term was consistent with the principles and purposes of felony

sentencing stated in R.C. 2929.11 and the recidivism factors in R.C. 2929.12.

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{¶31} With regard to consecutive sentencing, we note that even though the

trial court made the appropriate findings on the record pursuant to R.C.

2929.14(C)(4) to impose consecutive sentences, the trial court failed to incorporate

those statutory findings in its judgment entry. The Supreme Court of Ohio has held

that the findings required by R.C. 2929.14(C)(4) must be made at the sentencing

hearing and included in the sentencing entry. State v. Bonnell,

,

, syllabus. However, a trial court’s inadvertent failure to

incorporate the statutory findings in the sentencing entry after properly making

those findings at the sentencing hearing does not render the sentence contrary to

law; rather, such a clerical mistake may be corrected by the court through a nunc

pro tunc entry to reflect what actually occurred in open court. Bonnell, ¶ 30.

{¶32} For the reasons stated above, we conclude that Kegley failed to prove

by clear and convincing evidence that the record does not support the trial court’s

sentence in this case. Therefore, we do not find the sentence entered by the trial

court to be contrary to law and overrule the second assignment of error.

{¶33} The trial court’s judgment is hereby affirmed. This matter is remanded

solely for the trial court to enter a nunc pro tunc entry that includes the consecutive

sentencing findings that it made at the May 26, 2016 resentencing hearing.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

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/jlr

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