State v. Cencebaugh , 2018 Ohio 2216 ( 2018 )

[Cite as State v. Cencebaugh, 2018-Ohio-2216.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27665
:
v. : T.C. NO. 2016-CR-3676
:
BRYANT M. CENCEBAUGH : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of June, 2018.
...........
MATHIAS H. HECK, JR., by SARAH HUTNIK, Atty. Reg. No. 95900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
AMY FERGUSON, Atty. Reg. No. 88397, 130 West Second Street, Suite 1818, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
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DONOVAN, J.
{¶ 1} This matter is before the Court on the July 21, 2017 Notice of Appeal of
Bryant Cencebaugh. Cencebaugh appeals from his July 20, 2017 Judgment Entry of
Conviction, following a no contest plea, to one count of aggravated possession of drugs,
namely fentanyl, in violation of R.C. 2925.11(A), a felony of the fifth degree. Cencebaugh
received a sentence of 11 months, and the court suspended his driver’s license for three
years. We hereby affirm the judgment of the trial court.
{¶ 2} Cencebaugh was indicted on December 28, 2016. On April 28, 2017, he
filed a “Motion to Dismiss Indictment; Hearing Requested,” based upon Ohio’s Good
Samaritan Law, R.C. 2925.11(B)(2)(b). The motion provides that on August 21, 2016,
around 3:02 p.m., Cencebaugh was trespassed from Sycamore Medical Center after he
was found in the men’s restroom “dry heaving” into a trash can and vomiting into a toilet
by security personnel. A syringe with blood in it and a gel capsule that was tested and
determined to be fentanyl were found near Cencebaugh in plain view. The motion
provides that Cencebaugh was prevented from obtaining treatment at the emergency
room, and that on the same day, around 5:02 p.m., he was later “found overdosed in a
home at 419 Kercher Street as a result of a call for a welfare check.” The motion
provides that Cencebaugh sought a referral for treatment within 30 days of the incident.
{¶ 3} The State responded to the motion on May 5, 2017, noting that “no one
sought or obtained medical assistance for Defendant. The Defendant did not claim to
be, nor did anyone believe him to be, experiencing a drug overdose.” The State noted
that Cencebaugh denied knowledge of the syringe and capsule.
{¶ 4} The trial court overruled Cencebaugh’s motion on May 9, 2017. The court
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determined that Cencebaugh was not a “qualified individual” under R.C.
2925.11(B)(2)(a)(viii) because he was not “seeking medical treatment at the time he was
found in the restroom at Sycamore Medical Center,” and because he “denied the use of
drugs, denied having the paraphernalia in the restroom, and did not ask for medical
assistance despite being present at a hospital.”
{¶ 5} On May 10, 2017, Cencebaugh failed to appear as ordered in court, and he
was arrested on June 7, 2017. On June 20, 2017, Cencebaugh entered his plea of no
contest, and he was sentenced on July 19, 2017.
{¶ 6} Cencebaugh asserts a single assignment of error herein as follows:
THE COURT ABUSED IT’S [sic] DISCRETION WHEN
SENTENCING MR. CENCEBAUGH TO ELEVEN MONTHS IN PRISON.
{¶ 7} Cencebaugh asserts that he “was facing a prison sentence of six to twelve
months; however, he was also eligible for community control sanctions. The Judge
examined the purposes and principles of sentencing and determined that a sentence of
11 months was appropriate.” Cencebaugh asserts that “the Judge was within the law in
determining that prison is an appropriate sanction; however, it was an abuse of discretion
based upon the particular facts relied upon at sentencing and seriousness of the charge.”
Cencebaugh acknowledges that he “has 13 previous felony convictions and has had
some problems in the past complying with community control sanctions.” He argues that
“the court should have lowered Mr. Cencebaugh’s sentence or at least not disapproved
of shock incarceration or intensive prison programs.” According to Cencebaugh, it “is
clear based upon the nature of the crime that [he] suffers from a drug abuse issue and
therefore a more community based sanction would have been more appropriate.”
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Cencebaugh asserts that his sentence is “unduly burdensome,” and that “a sanction that
would include drug treatment” should have been imposed.
{¶ 8} The State responds that “Cencebaugh has not satisfied his burden of
showing, by clear and convincing evidence, that the record on appeal does not support
his sentence.” The State asserts that abuse of discretion “is the wrong standard of
review.”
{¶ 9} We agree with the State. As this Court has recently noted:
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 (affirming
sentence of 11 months for possession of heroin, a felony of the fifth degree, on an appeal
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967)).
{¶ 10} The transcript of Cencebaugh’s sentencing hearing reflects that the trial
court indicated that it reviewed the pre-sentence investigation report (“PSI”), and that it
considered the purposes and principles of sentencing in R.C. 2929.11, and the
seriousness and recidivism factors in R.C. 2929.12. The court noted that “this is your 13th
felony conviction and that you’ve had some problems in the past complying with
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community control sanctions.”
{¶ 11} Cencebaugh’s sentence is within the statutory range for a felony of the fifth
degree, and it is not contrary to law. R.C. 2929.14(A)(5). As the State notes,
Cencebaugh’s criminal history is lengthy both as a juvenile and an adult. He has multiple
adult misdemeanor convictions, and 12 previous adult felony convictions.
Cencebaugh’s PSI provides as follows:
Mr. Cencebaugh was sentenced to community control sanctions on
March 16, 2010, in C#09 CR 04189 and C#10 CR 00089. Mr.
Cencebaugh’s performance while under supervision was abysmal. He
failed to pay any financial obligations, and did not complete any of his court
ordered sanctions. Additionally, he was arrested on new misdemeanor
theft offenses. On June 17, 2010, Mr. Cencebaugh entered residential
treatment at the Center for Alcohol and Drug Addictions Services (CADAS).
On July 6, 2010, he was unsuccessfully discharged from the program for
multiple rule violations, being disrespectful to females, and making threats.
On July 13, 2010, he entered the MonDay program. On September 9,
2010, he was unsuccessfully discharged from the MonDay program due to
multiple rule violations. At this time, his probation was revoked, and he
was sentenced to prison.
Mr. Cencebaugh was sentenced to community control sanctions on
February 1, 2012 in 11 CR 3621, 11 CR 4058, and 11 CR 4060. Mr.
Cencebaugh entered residential treatment at Nova Behavioral Health soon
after he was placed on supervision. However, on February 18, 2012, Mr.
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Cencebaugh was discharged from Nova after he was found in possession
of a syringe. An absconding warrant was issued at that time. Mr.
Cencebaugh was arrested on the absconding warrant on February 28,
2012, and by this time he had incurred additional charges in 12 CR 1089
and 12 CR 690. * * *
Mr. Cencebaugh is on probation supervision in the state of Florida
for a drug offense. * * *
{¶ 12} Based upon the forgoing, we find it is evident why the trial court did not
consider community control sanctions or a shorter term appropriate for Cencebaugh, and
we agree with the State that he failed to establish that the record does not support his
sentence. Accordingly, his assigned error is overruled, and the judgment of the trial court
is affirmed.
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HALL, J., concurring:
{¶ 13} I agree with the resolution in this case but write separately to express my
view regarding the standard of review of trial court sentencing decisions. I start with the
notion that the trial court was not required to make any “findings” before imposing the
sentence within the statutory range as long as the court considered the statutory factors
in R.C. 2929.12 and R.C. 2929.13. The court expressed that it did generally consider
those sections.
{¶ 14} My concerns are particularly applicable with respect to paragraph six of
State v. Huffman, 2d Dist. Miami No. 2016-CA-16, 2017-Ohio-4097, which is quoted in
paragraph nine of the majority opinion as follows: “* * * an appellate court may increase,
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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.” In my view, if there
are no “findings” (as opposed to general statutory considerations) required to be made,
then one cannot clearly and convincingly determine that the record does not support the
“specified findings” because “findings” not required to be made do not exist.
{¶ 15} Moreover, my interpretation of State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, allows a sentence to be vacated or modified “only if the
appellate court finds by clear and convincing evidence that the record does not support
the sentence.” Id. at ¶ 23 (Emphasis added).1 The difference is that the above Huffman
quote is in the affirmative, requiring the State or the court to have introduced information
into the record to justify the sentence. I believe the Marcum quote is in the negative. If the
record does not contain evidence from which we can determine that the sentence is
clearly wrong, then it stands, and we are without authority to adjust it. The majority’s quote
puts the burden on the State or the court, incorrectly in my view, to insure there is
information in the record to justify the sentence. This distinction is particularly important
with regard to sentencing following a plea where the record often is sparse, perhaps even
where the defense, or the court, dispenses with a PSI report.
{¶ 16} I previously have written that “even a record that is largely silent is not
1 I acknowledge that the Supreme Court, in several subsequent references to Marcum,
has stated “[i]n State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
we held that R.C. 2953.08(G)(2) allows an appellate court to increase, reduce, or
otherwise modify a sentence only when it clearly and convincingly finds that the sentence
is (1) contrary to law and/or (2) unsupported by the record. Id. at ¶ 7.” See, e.g. State v.
McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1. But the Supreme
Court has not explicitly ruled on the issue I raise here.
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clearly and convincingly contrary to a trial court’s consecutive-sentencing determination
unless there is substantial affirmative factual information in support of the defendant to
conclude that the trial court is clearly wrong.” State v. Kay, 2d Dist. Montgomery No.
26344, 2015-Ohio-4403, ¶ 27 (Hall, J., dissenting). Regardless of my expressed
concerns, in this case the record affirmatively supports the sentence imposed.
Accordingly, I concur.
TUCKER, J., concurring:
{¶ 17} Judge Hall’s concurring opinion raises an interesting, important issue
regarding the interpretation of State v. Marcum and, ultimately, the appropriate
interpretation of R.C. 2953.08(G)(2). But, as Judge Hall notes, the pending case does
not require consideration of the issue. I think Judge Hall’s position has merit, but our
consideration, and resolution, of the issue must await a record that requires such
consideration and resolution.
Copies mailed to:
Sarah Hutnik
Amy Ferguson
Hon. Dennis J. Adkins