[Cite as State v. Montgomery,
2021-Ohio-2500.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 20CA4
:
v. :
:
KEITH L. MONTGOMERY, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Eric J. Allen, Columbus, Ohio, for Appellant.
Jason D. Holdren, Gallia County Prosecuting Attorney, Jeremy Fisher,
Assistant Prosecuting Attorney, Gallipolis, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Keith L. Montgomery challenges the trial court’s denial of his
Motion to Withdraw Guilty Plea, filed January 30, 2020, in the Gallia
County Court of Common Pleas. Mr. Montgomery also asserts the trial
court’s imposition of a maximum sentence on the basis that the trial court
relied on inaccurate information in formulating his sentence. However,
upon review of the record, we find no merit to Mr. Montgomery’s
arguments. Accordingly, we overrule his assignments of error and affirm
the judgment of the trial court.
Gallia App. 20CA04 2
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On or about August 14, 2019, Keith L. Montgomery,
“Appellant,” was indicted on two counts: Count One, Possession of Heroin,
a violation of R.C. 2925.11(A); and Count Two, Trafficking in Heroin, a
violation of R.C. 2925.03(A)(2). Both counts are felonies of the second
degree. The indictment arose subsequent to a traffic stop initiated by
Trooper Drew Kuehne of the Ohio State Highway Patrol on July 17, 2019, in
Gallia County. During the stop, Trooper Kuehne performed a Terry pat-
down search of Appellant.
{¶3} Appellant was arraigned on August 16, 2019 and entered not
guilty pleas. Appellant requested and was granted a court-appointed
attorney. Appellant, through his counsel, filed the usual requests for
discovery and request for bill of particulars.
{¶4} On September 30, 2019, Appellant’s counsel also filed a motion
to suppress. Appellant raised several arguments, but chiefly asserted that
Trooper Kuehne’s search went beyond the limits of a Terry search and was
actually an improper body cavity search. The suppression hearing took
place on October 7, 2019. On October 24, 2019, the trial court overruled
Appellant’s motion to suppress. Upon review of the video evidence of the
traffic stop and the parties’ arguments, the trial court found that Trooper
Gallia App. 20CA04 3
Kuehne did not violate Appellant’s Fourth Amendment rights and did not
conduct a body cavity search.
{¶5} On October 29, 2019, the day set for jury trial, Appellant
withdrew his not guilty pleas and entered guilty pleas to both counts.
Appellant signed a “Plea Form.” The trial court found that Appellant was
advised of his constitutional rights and that Appellant had made a knowing,
intelligent, and voluntary waiver of his rights pursuant to Crim.R. 11. The
trial court found Appellant guilty of both charged offenses. The trial court
deferred sentencing and ordered a pre-sentence investigation (PSI).
{¶6} Appellant’s case came on for sentencing on November 13,
2019. At that time, Appellant through counsel expressed his desire to
withdraw his guilty pleas. Appellant then addressed the trial court as
follows:
Your Honor, I would to uh, I had a discussion with my
lawyer um, from my understanding, I wouldn’t be able to
uh, appeal, uh, I don’t, the suppression hearing or uh, my
sentence. Uh, and due to the fact that I wouldn’t be able
to appeal I’d like to redraw my, withdraw my plea
because uh, I would like to maintain some, some type of
rights to, for my appeal.
{¶7} On November 20, 2019, Appellant’s counsel filed a Motion to
Withdraw Guilty Plea. The motion asserted the same suppression issues as
Gallia App. 20CA04 4
previously argued. The motion also raised an issue of possible tampering
with evidence. In the motion, Appellant asserted:
A review of the CD indicates that a baggie of an
unidentified substance was placed on the car hood. It
appeared to be one solid substance. Yet, the results of
the laboratory analysis resulted in the analysis of three
units of this same evidence. It is unclear how a baggie
containing one substance because [sic] three units unless
the first alleged evidence had been split into three units.
There is no documentation on how the baggie material
was split or who did it. The parties knew that an official
proceeding or investigation [was] in progress …. Yet
it appears that the “evidence” with this defendant was
broken up which would impair its value and possibly
change the charges against the Defendant.
{¶8} The trial court conducted a hearing on the motion to withdraw
on November 25, 2019. The parties made arguments but did not present
evidence. On January 30, 2020, the trial court filed a detailed journal entry
concluding that Appellant did not present a reasonable and legitimate basis
for withdrawing his guilty plea. Appellant’s motion to withdraw his plea
was thereby denied.
{¶9} On February 4, 2020, Appellant’s sentencing took place. Given
that the two offenses which Appellant pled to were allied offenses, the State
elected to proceed to sentencing on Count Two, Trafficking in Heroin. The
court considered the principles and purposes of sentencing, under R.C.
2929.11. The court also considered the seriousness and recidivism factors
Gallia App. 20CA04 5
under R.C. 2929.12. The trial court noted that Appellant was on federal
parole at the time of his offenses in Gallia County, and that he had a history
of criminal convictions, having served one state prison term and one federal
prison term.
{¶10} The trial court imposed a mandatory minimum prison term of
eight years and a maximum period of twelve years, along with a mandatory
period of three years of Post Release Control upon his release from prison.
Appellant was ordered to pay all costs of prosecution. This timely appeal
followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ABUSED ITS
DISCRETION IN DENYING THE
APPELLANT’S PRESENTENCE MOTION TO
WITHDRAW HIS GUILTY PLEA IN
VIOLATION OF RIGHT TO DUE PROCESS
GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION.
II. THE TRIAL COURT ERRED WHEN IT
SENTENCED THE APPELLANT TO A
MAXIMUM TERM OF INCARCERATION
BASED UPON A NON-EXISTENT STATE
PRISON TERM.
ASSIGNMENT OF ERROR ONE
{¶11} Appellant asserts that his motivation to withdraw his guilty
Gallia App. 20CA04 6
pleas is not a mere change of heart. Appellant argues that his plea occurred
prior to the chemical substance being tested in a laboratory and prior to the
preparation of the report which revealed the results of the testing. Appellant
pointed out that the substance confiscated from him was apparently divided
into three separate units for testing. Appellant argues that additional
investigation is necessary to find who broke the drugs into three separate
units. Appellant asserts that if it could be proven someone tampered with
the evidence, this could serve to undermine the credibility of the state’s
witnesses.
{¶12} In response, the State of Ohio argues Appellant’s
characterization of the chronology of the lab testing and report and his plea
hearing is misleading. The State points out that it filed a supplemental
response to discovery on September 23, 2019, containing the laboratory
report of the analysis of the drugs. The State argues that Appellant had the
laboratory report two weeks before the suppression hearing and over a
month prior to trial.1
{¶13} The State’s brief also recites and analyzes the various factors
utilized by Ohio appellate courts which assist in appellate review of cases
where it is contended that a trial court has abused its discretion in denying a
1
The certificate of service on the supplemental disclosure indicates service on or about September 27,
2019. The suppression hearing was held October 7, 2019. Appellant’s trial date, which ended up being a
change of plea hearing, was October 29, 2019.
Gallia App. 20CA04 7
pre-sentence motion to withdraw plea. The State concludes that Appellant
did not have a legitimate and reasonable basis to withdraw his plea.
STANDARD OF REVIEW
{¶14} In State v. Curtis, 4th Dist. Meigs No.20CA6, 2021-Ohio-1145,
at ¶ 10, we recently observed that Crim.R. 32.1 states: “A motion to
withdraw a plea of guilty … may be made only before sentence is
imposed ….” Although “a presentence motion to withdraw a guilty plea
should be freely and liberally granted[,] … a defendant does not have an
absolute right to withdraw a plea prior to sentencing.” State v. Xie,
62 Ohio
St.3d 521, 527,
584 N.E.2d 715 (1992). “ ‘The decision to grant or deny a
presentence motion to withdraw a guilty plea is within the sound discretion
of the trial court and will not be reversed absent an abuse of that
discretion.’ ” State v. McCoy, 4th Dist. Gallia No. 19CA4,
2020-Ohio-3088,
¶ 12, quoting Xie at paragraph two of the syllabus. An “abuse of discretion”
is “an unreasonable, arbitrary, or unconscionable use of discretion” or “a
view or action that no conscientious judge could honestly have taken.” State
v. Brady,
119 Ohio St.3d 375,
2008-Ohio-4493,
894 N.E.2d 671, ¶ 23.
{¶15} In Curtis, at ¶ 11, we recited the nine factors we consider
when reviewing a trial court's ruling on a presentence motion to withdraw a
guilty plea:
Gallia App. 20CA04 8
(1) whether “highly competent counsel” represented
the defendant; (2) whether the trial court afforded the
defendant “a full Crim.R. 11 hearing before entering
the plea”; (3) whether the trial court held “a full
hearing” regarding the defendant's motion to
withdraw; (4) “whether the trial court gave full and
fair consideration to the motion”; (5) whether the
defendant filed the motion within a reasonable time;
(6) whether the defendant's motion gave specific
reasons for the withdrawal; (7) whether the defendant
understood the nature of the charges, the possible
penalties, and the consequences of his plea; (8)
whether the defendant is “perhaps not guilty or ha[s] a
complete defense to the charges”; and (9) whether
permitting the defendant to withdraw his plea will
prejudice the state.
(Alteration in Howard.) State v. Howard, 2017-Ohio-9392,
103 N.E.3d 108,
¶ 24 (4th Dist.), quoting State v. McNeil,
146 Ohio App.3d 173, 176,
765
N.E.2d 884 (1st Dist.).
“ ‘ “Consideration of the factors is a balancing test, and
no one factor is conclusive.” ’ ” Id., quoting State v.
Jones, 10th Dist. Franklin No. 15AP-530, 2016-Ohio-
951, ¶ 14, quoting State v. Zimmerman, 10th Dist.
Franklin No. 09AP-866, 2010-Ohio-4087, ¶ 13. “ ‘The
ultimate question is whether there exists a “reasonable
and legitimate basis for the withdrawal of the plea.” ’ ”
Id., quoting State v. Delpinal, 2d Dist. Clark Nos. 2015-
CA-97 & 2015-CA-98, 2016-Ohio-5646, ¶ 9, quoting
Xie
at 527. “A mere change of heart is not a legitimate and
reasonable basis for the withdrawal of a plea.” Id.
LEGAL ANALYSIS
{¶16} An examination of the above-listed factors supports the
conclusion that the trial court’s decision to deny Appellant’s presentence
Gallia App. 20CA04 9
motion to withdraw his guilty pleas was not unreasonable, arbitrary, or
unconscionable. Therefore, the trial court did not abuse its discretion by
denying Appellant’s motion to withdraw his guilty pleas.
{¶17} In the trial court’s entry denying Appellant’s motion to
withdraw his plea, the trial court discussed the chronology of the
proceedings. The court noted that on October 29, 2019, after potential jurors
had appeared and were prepared to serve, Appellant informed the court he
wished to enter guilty pleas. At that time, the trial court engaged in a
detailed 30-minute plea colloquy and accepted Appellant’s guilty pleas. The
trial court then dismissed the jury pool.
{¶18} In the entry, the trial court also summarized the Crim.R. 11
hearing, noting that the court discussed with Appellant the maximum
potential penalties, indefinite sentencing, the nature and elements of the
charges, and the mandatory prison term. The Court also discussed the effect
of a guilty plea, informing Appellant that by pleading guilty he was waiving
the right to appeal any adverse evidentiary ruling, such as the denial of his
motion to suppress. The Court also inquired of Appellant, individually,
whether he understood his rights and that he was waiving his rights. To all
the inquiries, and notably, his appeal rights, Appellant acknowledged
understanding.
Gallia App. 20CA04 10
{¶19} The trial court specifically inquired as to the factual basis for
each element of the charges. Appellant admitted to possession of heroin by
stating:
Appellant: “I had the drugs.”
Trial court: “As to the trafficking in heroin charge, what is it that you did
that violates the law?”
Appellant: “I, I possessed it and I was traveling with it and I had the
heroin.”
Trial court: “Were you going to give it to someone else?”
Appellant: “Yes, yes.”
{¶20} The trial court also spent time going over each paragraph of
Appellant’s guilty plea form. The court noted, as do we, that Appellant did
not hesitate to ask questions when he had them or needed clarification.
{¶21} In the entry, the trial court also discussed the factors. As to the
first factor, the trial court noted Appellant’s counsel had practiced law in
Ohio since 1995 and had handled hundreds of felony cases.
{¶22} As to the second, third, and fourth factors respectively, the trial
court noted that Appellant was given a full Crim.R. 11 hearing and a full
hearing on his motion to withdraw his pleas. The trial court also referenced
its detailed decision denying the motion to withdraw as self-explanatory
Gallia App. 20CA04 11
evidence of full and fair consideration. Upon review of the record, we
would agree with these characterizations.
{¶23} As to the fifth factor, the trial court considered Appellant’s
motion to be filed within a reasonable time. Given that he expressed his
desire to withdraw his plea on the morning of his initial sentencing date, we
find this factor debatable.
{¶24} As to the sixth factor, the trial court found Appellant’s reasons
for requesting withdrawal confusing. We agree with this assessment. When
Appellant verbally explained his reasons, he indicated he would “like to
maintain some type of rights … for my appeal.” However, his written
motion focused on a newly asserted claim that the evidence may have been
tampered with.
{¶25} As to this new claim, the trial court observed that Appellant
would have had the opportunity to raise any allegation of tampering at the
suppression hearing. The trial court noted that the Defendant had the
opportunity at the suppression hearing to question the officer about any
discrepancies in the description of the drugs seized. The description of the
drugs contained in the report was in Defendant’s possession well in advance
of the suppression hearing. The chronology in this case demonstrating the
date of the State’s disclosure of the report and the date of the suppression
Gallia App. 20CA04 12
hearing confirms that Appellant would have had ample time to raise the
issue.
{¶26} In State v. Minkner, 2d Dist. Champaign No. 2006CA32, 2007-
Ohio-5574, the defendant claimed he had not been provided with or given
sufficient time to review important discovery materials. Minkner argued he
did not have adequate information to knowingly, intelligently, and
voluntarily enter his guilty pleas. On appeal, the 2nd District observed:
The record demonstrates that the day Defendant entered
his guilty pleas he was provided with copies of his cell
phone records and the marked buy money that police
used. The plea proceeding was delayed for
approximately one hour while Defendant and his counsel
reviewed that material, along with some audiotapes of the
controlled drug buys made by the confidential
informants. Prior to Defendant’s plea, the State had
supplied the defense with discovery packets. …
During the plea hearing, Defendant never raised with the
trial court the contention that he needed additional
information or more time to review the discovery
material before deciding whether he wanted to accept the
State’s plea offer. Id. at ¶ 13.
{¶27} The court further noted:
Defendant’s guilty pleas waived any and all
constitutional infirmities that occurred prior to those
pleas, including his right to discovery and any error
associated with discovery violations, unless those
violations rendered Defendant’s pleas less than knowing,
intelligent, and voluntary. Id. at ¶ 15.
Gallia App. 20CA04 13
{¶28} In this case, Appellant has not argued that his plea was not
voluntarily made. Here, Appellant had far more time to review discovery
and raise any issues than did the defendant in Minkner.
{¶29} As to the seventh factor, the trial court concluded that
Appellant understood the nature of the charges, the possible penalties, and
the consequences of his plea. The trial court spoke to Appellant directly.
The court also discussed the “Plea Form” document paragraph by paragraph.
Appellant repeatedly informed the court that he understood these issues.
Our review of the plea hearing confirms this assessment.
{¶30} As to the eighth factor concerning a defendant’s possible
innocence or complete defense to the charges, the trial court’s decision noted
that Appellant admitted to the court that he possessed the required amount of
heroin and intended to give it to another. The trial court correctly concluded
that Appellant has not asserted innocence nor has he a complete defense to
the charges. Had Appellant asserted innocence in his motion or on appeal, it
would be contradicted by his statements at the change of plea hearing. See
e.g., State v. Williams, 3rd Dist. Logan No. 8-18-06, 2018-Ohio-3615, at
¶ 17; State v. Hughes, 3d Dist. Shelby No. 17-20-04,
2020-Ohio-4516, at
¶ 16.
Gallia App. 20CA04 14
{¶31} Finally, the trial court discussed the prejudice to the State of
Ohio. While the State’s brief does not emphasize prejudice, the trial court
discussed the fact that a jury was called; the jurors received a nominal fee;
and the jurors, their employers, and their families were inconvenienced. As
with the timing of Appellant’s motion, we find this factor is debatable.
{¶32} The trial court found that Appellant simply had a change of
heart, opining that Appellant was attempting to delay a sentence to prison in
Ohio and possible federal prison on a parole violation. After considering the
above factors, the trial court found Appellant was given the most complete
considerations possible and did not have a reasonable and legitimate basis
for withdrawing his guilty pleas. We therefore find the record supports the
trial court’s conclusion. We find no abuse of discretion by the trial court in
its decision to overrule Appellant’s motion to withdraw his pleas.
Accordingly, we find no merit to Appellant’s first assignment of error. It is
hereby overruled.
ASSIGNMENT OF ERROR TWO
{¶33} Appellant was sentenced to the Ohio Department of
Rehabilitation and Correction for a mandatory minimum period of eight
years and a maximum period of twelve years for Count Two. The
sentencing judgment entry states: “The defendant has a history of criminal
Gallia App. 20CA04 15
convictions having served one state prison term and one federal prison
term.” Appellant challenges his sentence, arguing that the trial court erred
by relying on incorrect information when enhancing Appellant’s sentence.
Appellant states that he has served one federal prison term, but he has not
served one state prison term.
{¶34} In response, the State of Ohio observes that Appellant was
sentenced within the prescribed range for a felony of the second degree. The
trial court also considered the necessary factors when sentencing Appellant.
The State argues that Appellant has a serious criminal history, served a
lengthy federal prison term for similar conduct to this case, and was on
federal probation at the time of the crime in this case. The State concludes
that this court should overrule Appellant’s second assignment of error.
STANDARD OF REVIEW
{¶35} The trial court imposed the maximum sentence. R.C. 2953.08
provides for appeals based on felony sentencing guidelines. See State v.
Cottrill, 4th Dist. Ross No. 20CA3604, 2020-Ohio-7033, at ¶ 11. Pursuant
to R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or
vacate and remand a challenged felony sentence if the court clearly and
convincingly finds either “that the record does not support the sentencing
court's findings,” under the specified statutory provisions, or “the sentence is
Gallia App. 20CA04 16
otherwise contrary to law.” State v. Mitchell, 4th Dist. Meigs No. 13CA13,
2015-Ohio-1132, ¶ 11; State v. Brewer,
2014-Ohio-1903,
11 N.E.3d 317,
¶ 37 (4th Dist.). “[C]lear 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,
161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the
syllabus. Thus, 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. See State v. Walker, 4th Dist. Gallia No. 19CA1,
2020-Ohio-617,
¶ 19.
LEGAL ANALYSIS
{¶36} When Appellant was given an opportunity to address the court
at sentencing, he stated:
I noticed, uh, some of the things that he mentioned in my
PSI, some of those things were, were, not accurate. They
were overblown, but I do understand that I did commit a
crime you know, so I’m not making no excuses by saying
that I was a victim or nothing like that.
{¶37} Later at sentencing, the trial court asked the parties if there was
Gallia App. 20CA04 17
anything in the PSI that needed to be corrected or commented upon. Neither
Appellant nor his counsel indicated affirmatively. Appellant did not make
further comments.
{¶38} In this case, we do not have the PSI report before us. R.C.
2951.03 allows the trial court to review or disregard an alleged factual
inaccuracy in a presentence investigation report if the defendant alleges at
sentencing that the report is inaccurate. R.C. 2951.03(B)(5). See State v.
Sexton,3d Dist. Union No. 14-B-25, 2015-Ohio-934, at ¶ 85. However,
Appellant did not object to the alleged mistakes in the PSI report or to the
trial court’s mistaken statements at sentencing, other than the vague
statement set forth above.
{¶39} As a general rule an appellate court will not consider an alleged
error that the complaining party did not bring to the trial court's attention at
the time the alleged error is said to have occurred. This rule is a product of
our adversarial system of justice. See Sexton, supra. “ ‘Its purpose is
practical: to prevent the defensive trial tactic of remaining silent on a fatal
error during trial with the expectation of demanding a reversal on appeal if
the verdict is guilty.’ ” Sexton, supra, quoting State v. Craft, 52 Ohio
App.2d 1, 4-5,
367 N.E.2d 1221, 1224 (1977). The rule is also consistent
with the structure of our court system. An appellate court is not to be the
Gallia App. 20CA04 18
first court to decide an issue; it is to review decisions made by the trial court
after the lower court has had an opportunity to hear the arguments of the
parties. See Sexton, supra. “ ‘The traditional appeal calls for an
examination of the rulings below to assure that they are correct, or at least
within the range of error the law for sufficient reasons allows the primary
decision-maker.’ ” Sexton, supra, quoting Carrington, Meador &
Rosenberg, Justice on Appeal (1976) 2. State v. Slagle,
65 Ohio St.3d 597,
604,
605 N.E.2d 916 (1992); accord State v. Quarterman,
140 Ohio St.3d
464,
2014-Ohio-4034, ¶ 15 (2014) (recognizing the “well-established rule”
that failure to call an error to the attention of the trial court results in
forfeiture of that error on appeal). This general rule is subject to Crim.R. 52,
which gives the appellate court discretion to review the trial court's decision
for plain error.
Quarterman, supra, at ¶ 16.
{¶40} The standard of review under plain error “is a strict one.” See
Sexton, supra, at ¶ 86; State v. Murphy, 91 Ohio St.3d 516, 532,
747 N.E.2d
765 (2001). “[A]n alleged error ‘does not constitute a plain error or defect
under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly
would have been otherwise.’ We have warned that the plain error rule is not
to be invoked lightly. Notice of plain error under Crim.R. 52(B) is to be
taken with the utmost caution, under exceptional circumstances and only to
Gallia App. 20CA04 19
prevent a manifest miscarriage of justice.’ ”
Id., quoting State v. Campbell,
69 Ohio St.3d 38, 41,
630 N.E.2d 339 (1994), and State v. Long,
53 Ohio
St.2d 91,
372 N.E.2d 804 (1978), paragraphs two and three of the syllabus.
Under the plain error standard, “the defendant bears the burden of
demonstrating that a plain error affected his substantial rights” and “[e]ven if
the defendant satisfies this burden, an appellate court has discretion to
disregard the error and should correct it only to ‘prevent a manifest
miscarriage of justice.’ ” (Emphasis sic.) State v. Perry,
101 Ohio St.3d
118,
2004-Ohio-297,
802 N.E.2d 643, ¶ 14, quoting State v. Barnes,
94 Ohio
St.3d 21, 27,
759 N.E.2d 1240 (2002), and Long,
53 Ohio St.2d 91,
372
N.E.2d 804, at paragraph three of the syllabus. “Even constitutional rights
‘may be lost as finally as any others by a failure to assert them at the proper
time.’ ”
Murphy at 532, 747 N.E.2d 765, quoting State v. Childs,
14 Ohio
St.2d 56, 62,
236 N.E.2d 545 (1968).
{¶41} In Sexton, the appellant did not even allege that a plain error
occurred or that his substantial rights had been affected in any way. The
Ohio Supreme Court has recently refused to engage in a plain error review
where the defendant did not make any attempt to demonstrate plain error on
appeal. See Quarterman at ¶ 20-21. Therefore, under the benchmark
provided by the Ohio Supreme Court that “[n]otice of plain error … is to
Gallia App. 20CA04 20
be taken with the utmost caution,”
Murphy at 532, 747 N.E.2d 765, and that
the defendant carries the burden “of demonstrating that a plain error affected
his substantial rights,” Perry at ¶ 14, the Sexton court chose not to proceed
on plain error analysis, and also noted that no manifest miscarriage of justice
was apparent from the record. Sexton's sentences fell within the applicable
statutory limit and were appropriate based on Sexton's extensive criminal
record. Sexton at ¶ 88. The Sexton court further observed that factual
inaccuracies in a PSI are not necessarily grounds for reversal as R.C.
2951.03 allows the trial court to disregard an alleged factual inaccuracy in a
presentence investigation report. See R.C. 2951.03(B)(5); State v. Mayor,
7th Dist. Mahoning No. 07 MA 177,
2008-Ohio-7011, ¶ 3.
{¶42} In this case, Appellant made a vague dispute at sentencing
about the PSI report but did not formally object. On appeal, he has not
alleged that a plain error occurred. While arguing that the trial court’s entry
and the PSI report incorrectly reflect he served a state prison term, we have
only the court’s entry before us. Even if we were to undertake a plain error
analysis, we would find no evidence that plain error occurred or affected
Appellant’s substantial rights.
{¶43} However, there is evidence in the record to support the trial
court’s sentence. See e.g. State v. Burnett, 2d Dist. Clark No. 2013-CA-98,
Gallia App. 20CA04 21
2014-Ohio-4246, at ¶ 19. Appellant was sentenced on Trafficking in
Heroin, R.C. 2925.03(A)(2)(C)(6)(e). The plea hearing transcript and guilty
plea form reflect that Appellant was informed he was facing a sentence
range on a felony of the second degree of two to eight years plus one half of
the stated term for the indefinite maximum. At sentencing he was given a
mandatory minimum prison term of eight years and a maximum period of
twelve years, along with a mandatory period of three years of post release
control.
{¶44} The record indicates the trial court considered the record,
defense counsel’s oral statements, Appellant’s oral statements, Appellant’s
record, the presentence investigation report, and other relevant information.
The trial court also considered the principles and purposes of felony
sentencing under R.C. 2929.11 and was guided by the overall purposes of
sentencing, as well as the seriousness and recidivism factors under R.C.
2929.12. The trial court also found Appellant was on federal parole at the
time of the offense and had not responded favorably to sanctions previously
imposed.
{¶45} A trial court's imposition of a maximum prison term for a
felony conviction is not contrary to law if the sentence is within the statutory
range for the offense and if the court considers both the R.C. 2929.11
Gallia App. 20CA04 22
purposes and principles of felony sentencing and the R.C. 2929.12
seriousness and recidivism factors. See Cottrill, supra, at ¶ 22. State v.
Mathias, 5th Dist. Fairfield No. 19CA52, 2020-Ohio-4224, ¶ 9, citing State
v. Taylor, 5th Dist. Richland No. 17CA29,
2017-Ohio-8996, ¶ 16, citing
R.C. 2929.12 and State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and
103414,
2016-Ohio-5234, ¶ 10, 16.
{¶46} In this case, we conclude the trial court did not erroneously rely
on information in the PSI report and we find no basis to conclude that his
maximum sentence is contrary to law. The record supports the trial court’s
findings and considerations in sentencing Appellant as it did. We therefore
overrule Appellant’s second assignment of error.
{¶47} Having found no merit to either of Appellant’s assignments of
error, we hereby affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Gallia App. 20CA04 23
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Gallia County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
______________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
