State v. Grady , 2019 Ohio 1942 ( 2019 )

[Cite as State v. Grady, 2019-Ohio-1942.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-18-11
v.
RONDALL WALLACE GRADY, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 18-CR-0009
Judgment Affirmed
Date of Decision: May 20, 2019
APPEARANCES:
Emily P. Beckley for Appellant
Eric J. Figlewicz for Appellee
Case No. 16-18-11
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Rondall W. Grady (“Grady”), appeals the
judgment entry of the Wyandot County Court of Common Pleas, General Division,
finding him guilty of one count of aggravated possession of drugs as set forth in
Count One of the indictment, in violation of R.C. 2925.11(A), a felony of the fifth
degree. On appeal, Grady asserts one assignment of error arguing that the sentence
of imprisonment by the trial court is contrary to law. We disagree.
{¶2} Grady was indicted by the Wyandot County Grand Jury on January 10,
2018. (Doc. No. 1). The indictment contained three counts: Count One, aggravated
possession of drugs, a violation of R.C. 2925.11(A), a felony of the fifth degree;
Count Two, trafficking in drugs, a violation of R.C. 2925.03(A)(2), a felony of the
fourth degree, with criminal forfeiture specification, pursuant to R.C.
2981.02(A)(3); and, for Count Three, receiving proceeds of an offense subject to
forfeiture proceedings, in violation of R.C. 2927.21(B), a felony of the fifth degree,
with a specification of criminal forfeiture, pursuant to R.C. 2981.02(A)(3). (Id.).
{¶3} On July 27, 2018, Grady pled guilty to Count One of the indictment
pursuant to a negotiated plea and Counts Two and Three were dismissed by the
State. (July 27, 2018 Tr. 1-14); (Doc. Nos. 57, 59). In Grady’s negotiated plea, the
State agreed to a joint sentencing recommendation of community control sanctions.
(Id. at 11, 13); (Id.). The trial court accepted Grady’s plea, ordered the preparation
-2-
Case No. 16-18-11
of a presentence investigation report (“PSI”), and scheduled the matter for a
sentencing hearing. (Id. at 17); (Doc. No. 59). Important to the issues presented
and prior to sentencing, counsel of record reviewed the PSI and had no objection to
its introduction into evidence. (October 16, 2018 Tr. 5). On October 16, 2018, the
trial court declined to adopt and approve the joint sentencing recommendation and
sentenced Grady to eleven months in prison. (October 16, 2018 Tr. 10, 11); (Doc.
No. 61). Grady timely appealed and asserts that the trial court sentence is contrary
to law. (Doc. No. 65). For the reasons that follow, we affirm the decision of the
trial court.
Assignment of Error No. I
The sentence of a term of imprisonment by the trial court is
contrary to law.
Standard of Review
{¶4} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and
12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St. 3d 516,
2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “‘which will produce
in the mind of the trier of facts a firm belief or conviction as to the facts sought to
-3-
Case No. 16-18-11
be established.’” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus.
{¶5} A “trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing maximum or more than minimum sentences.” State v.
Shreves, 3d Dist. Auglaize No. 2-16-11, 2016-Ohio-7824, ¶ 14, quoting State v.
Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v.
King, 2d Dist. Clark Nos. 2012-CA-25 and 2012-CA-26, 2013-Ohio-2021, ¶ 45. “A
trial court’s statement that it considered the required statutory factors, without more,
is sufficient to fulfill its obligations under the sentencing statutes.” State v.
Nienberg, 3d Dist. Putnam Nos. 12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 12,
quoting Maggette at ¶ 32.
Analysis
{¶6} Appellant argues that the trial court erred by sentencing Grady to prison
for aggravated possession of drugs, a fifth-degree felony, which was not an offense
of violence or a qualifying assault offense and where none of the factors listed in
R.C. 2929.13(B)(1)(b)(i)-(xi) were applicable. (See Appellant’s Brief at 7-8).
Appellant contends that the information provided to the trial court in the PSI was
not “verified,” thereby, making the trial court’s sentence contrary to law. We
disagree.
-4-
Case No. 16-18-11
{¶7} The record supports that the trial court determined that Grady was not
amenable to community control based in part upon Grady’s prior convictions for
misdemeanors committed in Ohio and in West Virginia as well as for Grady’s felony
convictions in North Carolina as reflected in the PSI admitted into evidence without
objection. (October 16, 2018 Tr. 5, 10). Nevertheless, we address this so-called
verification requirement (the perceived inaccuracies in the PSI) and the record as it
relates to the trial court’s consideration of the factors articulated in R.C. 2929.13
and whether the sentencing of the trial court was contrary to law.
(Verification Requirement)
{¶8} The trial court’s PSI reveals that Grady admitted to the PSI writer to
having two felony convictions in New Hanover, North Carolina. (PSI at 10);
(October 16, 2018 Tr. 10). Further in the PSI, Grady reported that he successfully
completed a four-month “drug class” while in prison in North Carolina. (Id. at 15);
(Id.). However, Appellant argues that the preparer of the PSI had a statutory duty
to verify Grady’s self-reported felonies in another state. We find that no such
statutory duty exists. R.C. 2951.03 states, in its pertinent part:
(A)(1) Unless the defendant and the prosecutor who is handling the
case against the defendant agree to waive the presentence
investigation report, no person who has been convicted of or pleaded
guilty to a felony shall be placed under a community control
sanction until a written presentence investigation report has been
considered by the court. The court may order a presentence
investigation report notwithstanding an agreement to waive the report.
If a court orders the preparation of a presentence investigation report
-5-
Case No. 16-18-11
pursuant to this section, section 2947.06 of the Revised Code,
or Criminal Rule 32.2, the officer making the report shall inquire into
the circumstances of the offense and the criminal record, social
history, and present condition of the defendant, all information
available regarding any prior adjudications of the defendant as a
delinquent child and regarding the dispositions made relative to those
adjudications, and any other matters specified in Criminal Rule 32.2.
* * *.
(Emphasis added.) R.C. 2951.03(A)(1). The plain meaning of R.C. 2951.03
requires only an inquiry into a defendant’s criminal record without specifying the
process of how that information is to be realized and from what source. Here, Grady
was the provider of the information given to the PSI writer as to his felony
convictions and prison sentence in North Carolina. We decline to create a criminal
record “independent verification” requirement in R.C. 2951.03 when the language
in that statute is clear and unambiguous. Thus, based upon the plain language of the
foregoing statute, we conclude that the trial court committed no error of law in
considering Grady’s North Carolina felony convictions (and related prison
information) from North Carolina as set forth in the PSI.
(Accuracy of the Presentence Investigation Report)
{¶9} Despite the lack of independent verification of Grady’s criminal
history, Appellant never objected to the use of Grady’s criminal history at the
sentencing hearing. Even if PSI inaccuracies exist, the appellant failed to follow the
procedural safeguards set forth in R.C. 2951.03 to remedy such inaccuracies.
Specifically, R.C. 2951.03 provides, in its pertinent part:
-6-
Case No. 16-18-11
(B)(1) If a presentence investigation report is prepared pursuant to this
section, section 2947.06 of the Revised Code, or Criminal Rule 32.2,
the court, at a reasonable time before imposing sentence, shall permit
the defendant or the defendant’s counsel to read the report, except
that the court shall not permit the defendant or the defendant's counsel
to read any of the following:
(a) Any recommendation as to sentence;
(b) Any diagnostic opinions that, if disclosed, the court believes
might seriously disrupt a program of rehabilitation for the defendant;
(c) Any sources of information obtained upon a promise of
confidentiality;
(d) Any other information that, if disclosed, the court believes might
result in physical harm or some other type of harm to the defendant or
to any other person.
(2) Prior to sentencing, the court shall permit the defendant and the
defendant's counsel to comment on the presentence investigation
report and, in its discretion, may permit the defendant and the
defendant's counsel to introduce testimony or other information that
relates to any alleged factual inaccuracy contained in the report.
(3) If the court believes that any information in the presentence
investigation report should not be disclosed pursuant to division
(B)(1) of this section, the court, in lieu of making the report or any
part of the report available, shall state orally or in writing a summary
of the factual information contained in the report that will be relied
upon in determining the defendant’s sentence. The court shall permit
the defendant and the defendant’s counsel to comment upon the oral
or written summary of the report.
(4) Any material that is disclosed to the defendant or the defendant’s
counsel pursuant to this section shall be disclosed to the prosecutor
who is handling the prosecution of the case against the defendant.
(5) If the comments of the defendant or the defendant’s counsel, the
testimony they introduce, or any of the other information they
introduce alleges any factual inaccuracy in the presentence
-7-
Case No. 16-18-11
investigation report or the summary of the report, the court shall do
either of the following with respect to each alleged factual
inaccuracy:
(a) Make a finding as to the allegation;
(b) Make a determination that no finding is necessary with respect
to the allegation, because the factual matter will not be taken into
account in the sentencing of the defendant.
(C) A court’s decision as to the content of a summary under division
(B)(3) of this section or as to the withholding of information under
division (B)(1)(a), (b), (c), or (d) of this section shall be considered to
be within the discretion of the court. No appeal can be taken from
either of those decisions, and neither of those decisions shall be the
basis for a reversal of the sentence imposed.
(Emphasis added.) R.C. 2951.03(B)(1)-(5). The record supports that Grady had
access to the PSI prior to sentencing and no factual inaccuracies were reported to
the trial court. (October 16, 2018 Tr. 1-15). Interestingly, Grady’s counsel of
record, at the sentencing hearing referred to Grady’s “stint in prison” and drug abuse
treatment while in prison to argue that Grady would be amenable to community
control sanctions. (Id. at 5, 6). Moreover, the State addressed Grady’s prior felony
convictions arguing that, despite his prior criminal history, the facts of the case, and
his residency in multiple states outside Ohio, that the joint sentencing
recommendation of community control was appropriate. (Id. at 8). Nevertheless,
after considering the PSI, the arguments of the parties, and the purposes and
principles of sentencing, the trial court rejected the joint sentencing
recommendation and sentenced Grady to prison. (Id. at 10, 11). Thus, we conclude
-8-
Case No. 16-18-11
that the appellant has failed to demonstrate that the sentence of the trial court is
clearly and convincingly contrary to law.
{¶10} Further, since Appellant never objected to these alleged inaccuracies
in the PSI, we must determine if plain error exists under the facts presented.
{¶11} We recognize plain error “‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” State v. Frye,
3d Dist. Allen No. 1-17-30, 2018-Ohio-894, ¶ 94, citing State v. Landrum, 53 Ohio
St.3d 107, 110, 559 N.E.2d 710 (1990), quoting State v. Long, 53 Ohio St. 2d 91,
372 N.E.2d 804 (1978), paragraph three of the syllabus. Plain error review in
criminal cases is governed by Crim.R. 52(B). Id., citing State v. Risner, 73 Ohio
App.3d 19, 24, 595 N.E.2d 1040 (3d Dist. 1991). For plain error to apply, “the trial
court must have deviated from a legal rule, the error must have been an obvious
defect in the proceeding, and the error must have affected a substantial right.” Id.,
citing State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002). Under the
plain error standard, “the appellant must demonstrate that the outcome of his trial
would clearly have been different but for the trial court's errors.” Id., citing State v.
Waddell, 75 Ohio St. 3d 163, 166, 661 N.E.2d 1043 (1996), citing State v. Moreland,
50 Ohio St. 3d 58, 552 N.E.2d 894 (1990).
{¶12} Appellant asserts that the trial court erred in sentencing Grady based
upon a mistake of fact. Appellant failed to object to the information contained in
-9-
Case No. 16-18-11
the PSI at the sentencing hearing, which consequently, prevented the trial court from
making any finding or determination regarding the alleged inaccuracy. Everyone
in the courtroom on October 16, 2018 was operating under the belief, based upon
information received through Grady, that Grady had two prior felony convictions in
North Carolina. (October 16, 2018 Tr. 5, 6, 8, 10, 15). Importantly, there is nothing
in the record to suggest otherwise. Thus, we cannot conclude that the trial court
deviated from some legal rule, with an obvious defect in the proceeding, that
affected Grady’s substantial rights. Accordingly, we find no plain error exists which
has caused a manifest miscarriage of justice in the case subjudice.
(Sentencing Factors)
{¶13} Finally, Appellant argues that a sentencing presumption against prison
exists herein and that such presumption cannot be rebutted absent verification (of
his felony conviction), and thus, the prison term is contrary to law. Once again, as
we addressed previously, a “verification requirement” does not exist in R.C.
2951.03, and a trial court must be guided by the sentencing factors set forth in R.C.
2929.13. Pertinent to Appellant’s argument, we find that R.C. 2929.13(B)(1)(b)(x)
is dispositive here. Such section provides:
(B)(1)
(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
-10-
Case No. 16-18-11
degree that is not an offense of violence or that is a qualifying assault
offense if any of the following apply:
***
(x) The offender at the time of the offense was serving, or the offender
previously had served, a prison term.
(Emphasis added.) R.C. 2929.13(B)(1)(b)(x). Here, the record is clear that the
defendant reported that he had two prior felony convictions in North Carolina, and
that he served a prison term (in North Carolina) where he completed a four-month
“drug class”.1 (PSI at 10, 15). Thus, the trial court was within its discretion to
impose its prison term under the facts presented, pursuant to R.C.
2929.13(B)(1)(b)(x).
Conclusion
{¶14} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we overrule Appellant’s only assignment of error
and affirm the Judgment of the Wyandot County Common Pleas Court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
1
The State also referred to such convictions (and prison terms) on the record at the sentencing hearing. (Id.
at 5-6, 8).
-11-