.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Andrew J. King, J.
-vs- :
:
JAMES M. BARNETT, : Case No. 2024 AP 06 0019
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2023 CR 04 0135
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: April 28, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN D. STYER TRAVIS COLLINS
Prosecuting Attorney 105 Jamison Ave
Tuscarawas County Prosecutor's Office Cadiz, Ohio 43907
By: KRISTINE W. BEARD
Assistant Prosecuting Attorney
125 E. High Ave.
New Philadelphia, Ohio 44663
Baldwin, P.J.
{¶1} The appellant, James M. Barnett, appeals his sentence in the Tuscarawas
County Court of Common Pleas for his convictions of Possession of Cocaine in violation
of R.C. 2925.11 and Operation of a Vehicle in Willful and Wanton Disregard of the Safety
on Highways in violation of R.C. 4511.20.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On April 28, 2023, the appellant was indicted for Possession of Cocaine in
violation of R.C. 2925.11 and Operating a Vehicle While Under the Influence in violation
of R.C. 4511.19.
{¶3} On March 18, 2024, the appellee amended the second count of the
indictment to Operation of a Vehicle in Willful and Wanton Disregard of the Safety of
Persons or Property in violation of R.C. 4511.20. In exchange for a plea to the amended
indictment, the appellee agreed to recommend the trial court sentence the appellant to
community control sanctions with a reserved sentence of twelve months on count one,
and fifty hours of community service on county two.
{¶4} On May 22, 2024, the trial court conducted sentencing. At the sentencing
hearing, the trial court found that the appellant failed to attend his interview to complete
the presentence investigation report. The appellant disputed this finding.
{¶5} The trial court did not follow the State’s recommendation and sentenced the
appellant to six months of jail time.
{¶6} The appellant filed a notice of appeal and raised the following assignment
of error:
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT
APPELLANT HAD NOT ATTENDED HIS PRESENTENCE INVESTIGATION
APPOINTMENT WITHOUT PERMITTING APPELLANT THE OPPORTUNITY TO
PRESENT EVIDENCE REGARDING THE ALLEGATION THAT HE HAD NOT
ATTENDED SAID APPOINTMENT.”
I.
{¶8} In the appellant’s first assignment of error, the appellant argues that the trial
court abused its discretion by finding the appellant had not attended his presentence
investigation appointment without permitting the appellant to present evidence regarding
the allegation and that this error was not harmless. We agree.
{¶9} The appellee has conceded that the trial court erred. However, the State
argues that this error is harmless.
STANDARD OF REVIEW
{¶10} Crim.R. 52(A) defines harmless error as “[a]ny defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” “[T]he government
bears the burden of demonstrating that the error did not affect the substantial rights of the
defendant.” State v. Perry,
2004-Ohio-297
.
ANALYSIS
{¶11} In the case sub judice, the State alleges that the appellant failed to establish
the trial court solely relied on the presentence investigation that the appellant alleged was
inaccurate. However, as this Court previously held, “if the record reflects that none of the
trial court’s findings or considerations would be affected in the least by the alleged
inaccuracies in the report,” then the error is harmless. State v. Williamson, 2005-Ohio-
3524 (5th Dist.) ¶25. In this case, it was the first reason the trial court listed for imposing
a sentence.
{¶12} The trial court clearly relied on the belief the appellant failed to attend his
interview for the presentence investigation report. At the sentencing hearing, the trial court
imposed a sentence of six-months jail time because of 1) the appellant’s failure to comply
with the trial court’s instructions of getting a presentence investigation report and 2) not
being amendable to community sanctions.
{¶13} Therefore, as the trial court clearly relied on disputed facts in the
presentence investigation report and that the State failed to show that this error is
harmless, the appellant’s sole assignment of error is well taken.
{¶14} Accordingly, we sustain the appellant’s sole assignment of error.
CONCLUSION
{¶15} The judgment of the Tuscarawas County Court of Common Pleas is
reversed and remanded to the trial court for further proceedings consistent with this
opinion.
By: Baldwin, P.J.
Hoffman, J. and
King, J. concur.
