[Cite as State v. Durbin,
2019-Ohio-3701.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-19-003
Appellee Trial Court No. 18 CR 427
v.
Shane E. Durbin DECISION AND JUDGMENT
Appellant Decided: September 13, 2019
…
Timothy F. Braun, Sandusky County Prosecuting Attorney, and
Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.
Brett A. Klimkowsky, for appellant.
…
MAYLE, P.J.
{¶ 1} Appellant, Shane Durbin, appeals the January 2, 2019 judgment of the
Sandusky County Court of Common Pleas sentencing him to two years in prison
following his conviction of operating a vehicle under the influence (“OVI”). For the
following reasons, we affirm.
I. Background and Facts
{¶ 2} On June 15, 2018, Durbin was indicted on one count each of OVI in
violation of R.C. 4511.19(A)(1)(a),1 a fourth-degree felony; OVI in violation of R.C.
4511.19(A)(1)(b), a fourth-degree felony; OVI in violation of R.C. 4511.19(A)(2), a
fourth-degree felony; driving under suspension in violation of R.C. 4510.11, an
unclassified misdemeanor; and failure to yield the right-of-way at a stop sign in violation
of R.C. 4511.43(A), a minor misdemeanor. Each OVI charge also included a
specification under R.C. 2941.1413 that, within 20 years of the offense, Durbin had been
convicted of or pleaded guilty to five or more OVI offenses.
{¶ 3} Durbin agreed to plead guilty to the count of OVI charged under R.C.
4511.19(A)(1)(b), along with the attached specification. During the plea hearing on
November 5, 2018, the trial court engaged in a colloquy with Durbin regarding his rights
and informed him that the penalties for a conviction included a mandatory prison
sentence of one, two, three, four, or five years, a mandatory driver’s license suspension of
three years to life, and a mandatory fine of $1,350 to $10,500. Durbin said that he
1
Effective March 22, 2019, Ohio’s criminal statutes were extensively amended by 2017
S.B. No. 201. None of the amendments are applicable to Durbin’s case, however, so all
of our citations to the Revised Code refer to the former versions of the statutes that are
applicable to Durbin’s crimes.
2.
understood each right and the potential penalties. At the conclusion of the hearing, the
trial court accepted Durbin’s plea and found him guilty.
{¶ 4} On January 2, 2019, at the sentencing hearing, Durbin’s retained attorney
asked the court to sentence Durbin to a rehabilitation facility so he could receive
treatment for his drinking problem. During her statement, counsel noted that Durbin had
contacted an inpatient treatment facility and learned that he would have to pay out-of-
pocket for treatment because he did not have health insurance. According to Durbin’s
attorney, “Knowing that he would be going away today for either a jail or prison sentence
or potentially an inpatient treatment, then he did not start that treatment as he thought it
would be more or less a waist [sic] of money at this point because he does have to face
the—his consequences for this action.” Counsel noted that Durbin had tried three
outpatient rehabilitation programs, which had been unsuccessful. She also mentioned
that he became disabled while serving in the military and had “limited resources also at
this time to obtain [rehabilitation] services on his own.”
{¶ 5} The trial court, in reviewing the presentence investigation, stated that Durbin
had been in the army for six years, was facing his eighth OVI conviction, and was driving
with a suspended license and without insurance at the time he was arrested. Before
imposing a sentence, the trial court stated that its “job is to attempt to protect the public
from future crime and impose an appropriate punishment for your conduct.” It then
imposed a two-year prison sentence, a five-year driver’s license suspension, a $1,350
3.
fine, and court costs. The court told Durbin that it would not consider granting him
driving privileges until Durbin paid the fine.
{¶ 6} Durbin now appeals, raising one assignment of error:
1. The Trial Court’s sentence of Shane E. Durbin (“Appellant”)
violates the law insofar as the Trial Court penalized Appellant in part due to
being indigent.
II. Law and Analysis
{¶ 7} In his assignment of error, Durbin argues that the trial court did not comply
with the principles and purposes of sentencing in R.C. 2929.11 because the court did not
consider the potential for his rehabilitation in crafting a sentence and that the trial court
illegally sentenced him to prison because he could not afford to pay for inpatient alcohol
treatment or pay the imposed fine. In response, the state argues that Durbin’s prison
sentence comports with R.C. 2929.11 and there is no evidence supporting Durbin’s
argument that the trial court imprisoned him because he was indigent.
{¶ 8} We review sentencing challenges under R.C. 2953.08(G)(2). As pertinent
here, the statute allows an appellate court to increase, reduce, or otherwise modify a
sentence or vacate the sentence and remand the matter for resentencing only if it clearly
and convincingly finds “[t]hat the sentence is otherwise contrary to law.” R.C.
2953.08(G)(2)(b).
4.
{¶ 9} A sentence is not clearly and convincingly contrary to law where the trial
court sentences the defendant within the statutorily permissible range, properly applies
postrelease control, and considers the principles and purposes of sentencing in R.C.
2929.11 and the seriousness and recidivism factors in R.C. 2929.12. State v. Kalish, 120
Ohio St.3d 23,
2008-Ohio-4912,
896 N.E.2d 124, ¶ 18; see also State v. Tammerine, 6th
Dist. Lucas No. L-13-1081,
2014-Ohio-425, ¶ 15-16.
{¶ 10} If the appellate court finds that a sentence is not clearly and convincingly
contrary to law, it may vacate or modify the sentence “only if the appellate court finds by
clear and convincing evidence that the record does not support the sentence.” State v.
Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231, ¶ 23.
{¶ 11} Under R.C. 2929.11(A), the purposes of felony sentencing are “to protect
the public from future crime by the offender and others, to punish the offender, and to
promote the effective rehabilitation of the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.” To achieve these purposes, the sentencing court
must consider “the need for incapacitating the 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.” Id. The sentence imposed shall be reasonably calculated to
achieve these overriding purposes, “commensurate with and not demeaning to the
seriousness of the offender’s conduct and its impact upon the victim, and consistent with
5.
sentences imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B).
Although the statute requires the trial court to impose “the minimum sanctions that the
court determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources,” this does not mean that the court must impose the
statutory minimum sentence. State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-
Ohio-434, ¶ 18. To the contrary, “the trial court ha[s] full discretion to impose any
sentence within the authorized statutory range ….” State v. Connors, 2d Dist.
Montgomery No. 26721,
2016-Ohio-3195, ¶ 6.
{¶ 12} A trial court’s “consideration of the appropriate factors set forth in R.C.
2929.11 can be presumed unless the defendant affirmatively shows to the contrary.”
State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423,
108 N.E.3d 1, ¶ 243. For an
appellate court to find error, the defendant must present evidence to rebut this
presumption. State v. Smith, 6th Dist. Sandusky No. S-14-037,
2015-Ohio-1867, ¶ 11.
{¶ 13} Here, Durbin claims—without citing any supporting evidence from the
record—that the trial court failed to consider the potential for his rehabilitation through
inpatient treatment under R.C. 2929.11. First, this unsupported assertion is insufficient to
rebut the presumption that the trial court properly considered the factors in R.C. 2929.11.
Second, sentencing Durbin directly to inpatient treatment was not an available option.
Durbin pleaded guilty to and was convicted of a violation of R.C. 4511.19(A) that was a
fourth-degree felony and included a specification under R.C. 2941.1413. The trial court
6.
was therefore required to sentence him to a prison term of at least one year, R.C.
4511.19(G)(1)(d)(i) and R.C. 2929.13(A), (G)(2), and could not opt to send him to an
inpatient treatment facility.
{¶ 14} Additionally, Durbin’s reliance on Bearden v. Georgia, 461 U.S. 660,
103
S.Ct. 2064,
76 L.Ed.2d 221 (1983), is misplaced. In Bearden, the Supreme Court of the
United States held that a state could not revoke a defendant’s probation and imprison him
based solely on the defendant’s inability to pay a fine due to indigence.
Id. at syllabus.
Bearden is inapplicable here. The trial court in this case did not impose any punishment
on Durbin because he was indigent.2 Rather, the court sentenced Durbin to prison
because prison was the required punishment for his crimes. See R.C. 4511.19(G); R.C.
2929.13(G).
{¶ 15} Finally, Durbin fails to show, by clear and convincing evidence, that his
sentence is not supported by the record. This was Durbin’s eighth OVI conviction and he
was unsuccessful with three outpatient rehabilitation programs. The court noted that
Durbin had seven prior opportunities to “turn it around” after each of his seven prior OVI
convictions, but “it hasn’t happened yet.” Again, he was convicted of a violation of R.C.
2
Indeed, there is nothing in the record to indicate that Durbin claimed to be indigent at
sentencing. Durbin was represented by retained counsel at sentencing, who said that he
thought starting an inpatient program less than a month before his sentencing would be a
“waist [sic] of money” because he knew that he would receive either a jail or prison term.
And although counsel said that Durbin had “limited resources” to pay for treatment, she
did not say that Durbin could not afford to pay for treatment or could only obtain
treatment if it was court-ordered.
7.
4511.19(A) that was a fourth-degree felony and included a specification under R.C.
2941.1413, so the trial court was required to sentence him to a prison term, a driver’s
license suspension, and a fine. R.C. 4511.19(G)(1)(d)(i), (iii), (iv); R.C. 2929.13(A),
(G)(2). We find this to be sufficient support for Durbin’s sentence.
{¶ 16} In sum, we find that Durbin’s sentence is not clearly and convincingly
contrary to law. Durbin’s assignment of error is not well-taken.
III. Conclusion
{¶ 17} Based on the foregoing, the January 2, 2019 judgment of the Sandusky
County Court of Common Pleas is affirmed. Durbin is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, P.J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
8.
