Opinion
Case No. 2020 CA 00032
11-16-2020
STATE OF OHIO, Plaintiff - Appellee v. MANDY J. KINSER, Defendant - Appellant
APPEARANCES: For Plaintiff-Appellee WILLIAM C. HAYES Licking County Prosecutor By: PAULA M. SAWYERS Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 For Defendant-Appellant WILLIAM T. CRAMER 470 Olde Worthington Road, Suite 200 Westerville, Ohio 43082
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 17CR1069 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee WILLIAM C. HAYES
Licking County Prosecutor By: PAULA M. SAWYERS
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055 For Defendant-Appellant WILLIAM T. CRAMER
470 Olde Worthington Road, Suite 200
Westerville, Ohio 43082 Baldwin, J.
{¶1} Defendant-appellant Mandy J. Kinser appeals the revocation of her community control and the imposition of a prison sentence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} According to the Bill of Particulars, on December 22, 2017, a cab driver called the Newark Police from Licking Memorial Hospital to report a stolen cab. The cab driver told police that he had been dispatched to an address and spotted a woman, who was appellant, on a porch. He alleged that he asked her if she was waiting on a cab and that she said yes and got into the cab. Appellant kept changing her destination and eventually refused to get out of the cab. At this point, the cab driver heard from the dispatched that the person who had actually called for the cab was waiting to be picked up.
{¶3} The cab driver was eventually sent back to the area to pick up the correct person. After taking the person to his or her destination, he took appellant to the hospital because of how she was acting. When he went inside the hospital to get the police, he discovered that the cab was missing when he returned.
{¶4} Law enforcement located the cab and initiated their lights, but appellant refused to pull over. During the following chase, the cab exceeded speeds of 80 miles per hour and hit guardrail. The cab ran a red light, lost control, and struck a cement median. Police eventually surrounded the cab, but appellant was attempting to drive in reverse. Appellant refused to exit the vehicle and had to be removed by police. The pursuit lasted a total of 2.9 miles.
{¶5} On December 26, 2017, a criminal complaint was filed alleging that defendant, on December 22, 2017, had failed to comply in violation of R.C. 2921.331(B)(C)(5)(a)(i), a felony of the third degree. On January 24, 2018, appellant was indicted on one count of failure to comply in violation of R.C. 2921.331(B)(C)(5)(a)(i), a felony of the third degree, one count of failure to comply in violation of R.C. 2921.331(B)(C)(4), a felony of the fourth degree, and one count of grand theft of motor vehicle in violation of R.C. 2913.02(A)(1)(B)(5), a felony of the fourth degree. On February 9, 2018, appellant filed a written plea of not guilty by reason of insanity.
{¶6} Appellant was evaluated for competency to stand trial and was found to be competent.
{¶7} On August 6, 2018, appellant entered a plea of guilty to the failure to comply counts and the grand theft count was dismissed. The two counts were merged and the prosecution elected to procced to sentencing on Count One, the third-degree felony.
{¶8} According to the presentence investigation report (PSI), appellant was a forty-one-year-old divorced woman with two adult children and one minor child. Appellant had lost custody of her children due to drug addiction and they all resided with appellant's aunt and uncle. Appellant graduated from high school and had some college experience, but had no degrees. Appellant had been employed as a waitress and delivery driver, among other jobs, but claimed that she had to quit due to abuse she suffered from an ex-fiancé. Appellant suffered from several prior injures and disclosed that she had been physically abused by her ex-husband and physically, emotionally and sexually abused by her ex-fiancé. Appellant also reported that she had been sexually abused at the age of four by her aunt's boyfriend and physically abused by her stepfather. Appellant was suffering from depression and used prescription medication for depression.
{¶9} The PSI indicated that appellant had a history of drug use, including marijuana, cocaine and methamphetamines and, at the time of this offense, was using opiates and methamphetamines regularly. She has a non-violent criminal history that consists of theft-related offenses as well as forgery, criminal trespass and drug offenses. Her history included felonies and a prior prison term. During a prior prison term, appellant was involved in a program for mental health and victimization.
{¶10} In regard to this incident, appellant told the PSI writer that she was picked up and given a ride by someone who she recognized but she could not identify. She claimed that such person gave her the keys to the vehicle and let her borrow his vehicle, but then called the police on her. Appellant admitted not stopping for the police and said at the time that she was "hurt, panicked, confused, sick" and felt suicidal. She also claimed that she was very sick at the time from an injury and was not well mentally or emotionally. Appellant expressed remorse for not stopping for the police and putting everyone in a dangerous situation. She admitted to using methamphetamines the day prior to the offense, but denied being under the influence.
{¶11} The trial court, pursuant to a Judgment Entry filed on August 6, 2018, found appellant amenable to community control and imposed five years of community control with treatment at the Mended Reeds residential program. The trial court also suspended appellant's driving privileges for a period of two years and reserved the maximum term of three years.
{¶12} Thereafter, on September 12, 2018, the prosecutor filed a Motion to Revoke Community Control, alleging that, on August 17, 2018, appellant had become physically confrontational with other guests at Mended Reeds and had absconded from the facility. The trial court, as memorialized in an Entry filed on October 4, 2018, dismissed the motion and ordered appellant back to Mended Reeds.
{¶13} According to a probation report, appellant successfully completed Mended Reeds on December 27, 2018. However, when appellant retuned to Licking County, there was confusion about her mental health medication. The probation officer attempted unsuccessfully to schedule doctor appointments, but appellant went without her medication. She reported to probation once in January 2019 and the stopped reporting. Appellant called and left voicemails for probation, but never provided a location or phone number.
{¶14} On March 19, 2019, appellee filed a second Motion to Revoke Community Control, alleging that appellant had failed to report since on or after January 24, 2019 and that attempts to get her to report were unsuccessful and her whereabouts were unknown. Appellant admitted to the violation and the trial court, via a Judgment Entry filed on April 15, 2019, continued the community control. The trial court ordered that appellant return to Mended Reeds and complete any programming that they suggest, "along with any transitional living for one year upon completion of whatever re-stabilization is necessary."
{¶15} Appellant again completed the Mended Reeds programming successfully and continued with transitional housing until August of 2019. She was then admitted into a sober living facility in Knox County. Appellant admitted to using methamphetamines a couple of day between the programs. She was discharged from the sober living facility on September 22, 219 due to unspecified non-compliance. Appellant reported once to probation and her probation officer made multiple attempts to contact her.
{¶16} In a letter attached to the probation report, appellant indicated that she was suffering with mental and emotional issues including schizophrenia. She indicated that she had been diagnosed as delusional and also spoke of anxiety, PTSD, and insomnia. Appellant said that things turned for the worse over the Labor Day weekend due to a sexual incident. She also said that she was ill with pneumonia throughout November. Appellant admitted that she needed her mental health mediation, but noted that she was struggling with it.
{¶17} On December 12, 2019, appellee filed a third Motion to Revoke Community Control, alleging that appellant had failed to report since on or after October 10, 2019, that attempts to contact her and get her to report were unsuccessful, and that her whereabouts were unknown and a capias was issued. Appellee also alleged that, upon her apprehension on December 5, 2019, appellant had admitted to using methamphetamines a few days prior. The trial court, pursuant to a Judgment Entry filed on January 22, 2020, revoked appellant's community control and ordered that she serve a sentence of three years in prison with 337 days credit for her various confinements.
{¶18} Appellant now raises the following assignments on appeal:
{¶19} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN REVOKING COMMUNITY CONTROL AND IMPOSING THE RESERVED PRISON SENTENCE."
{¶20} "II. BY CLEAR AND CONVINCING EVIDENCE, THE RECORD DOES NOT SUPPORT THE TERMINATION OF COMMUNITY CONTROL AND IMPOSITION OF A MAXIMUM PRISON SENTENCE."
I, II
{¶21} Appellant, in her first assignment of error, argues that the trial court abused its discretion in revoking her community control and imposing a prison sentence on her. In her second assignment of error, appellant asserts that the record does not support the termination of her community control and imposition of the maximum sentence. We disagree.
{¶22} "A community control revocation hearing is not a criminal trial, so the state is not required to establish a violation of the terms of the community control 'beyond a reasonable doubt.' " State v. Kincer, 12th Dist. Clermont No. CA2005-07-059, -2006-Ohio-2249 at ¶ 5, citing State v. Payne, 12th Dist. Warren No. CA2001-09-081, 2002-Ohio-1916. Rather, the state need only present substantial evidence of a violation of the defendant's community control. Id.; State v. Pickett, 12th Dist. Warren No. CA2014-09-115, ¶ 13.
{¶23} The decision whether to revoke probation is within the trial court's discretion. State v. Ritenour, 5th Dist. Tuscarawas No.2006AP-010002, 2006-Ohio-4744, ¶ 37. Thus, a reviewing court will not reverse a trial court's decision absent an abuse of discretion. Id. "Abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is arbitrary, unreasonable, or unconscionable." State v. Maurer, 15 Ohio St.3d 239, 253, 473 N.E.2d 768 (1984).
{¶24} We find that the trial court did not abuse its discretion in revoking appellant's community control. In the case sub judice, the motion to revoke community control alleged that appellant had failed to report to adult probation and had used methamphetamines. At the January 22, 2020 hearing, appellant admitted to the violations contained in the motion. We find that the trial court's decision was not arbitrary, unconscionable or unreasonable. As noted by appellee, by the appellant's admission of the violations, the trial court "was presented with substantial proof and competent credible evidence that [a]ppellant had violated community control."
{¶25} Appellant further specifically contends that there is not clear and convincing evidence in the record supporting the sentence and that the sentence supports the purposes and principles of sentencing set out under R.C. 2929.11 and 2929.12.
{¶26} In accordance with R.C. 2953.08(A)(1), appellant is entitled to appeal as of right the maximum sentence imposed on her conviction. We review felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
{¶27} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court's findings under relevant statutes, or (2) the sentence is otherwise contrary to law. Clear and convincing evidence is that evidence "which will provide 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, 477,120 N.E.2d 118(1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross, 161 Ohio St. at 477 120 N.E.2d 118.
{¶28} A trial court's imposition of a maximum prison term for a felony conviction is not contrary to law as long as the sentence is within the statutory range for the offense, and the court considers both the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 10, 16.
{¶29} R.C. 2929.11(A) governs the purposes and principles of felony sentencing and provides that a sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing, which are (1) to protect the public from future crime by the offender and others, and (2) to punish the offender using the minimum sanctions that the court determines will accomplish those purposes. Further, the sentence imposed shall be "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes by similar offenders." R.C. 2929.11(B).
{¶30} R.C. 2929.12 sets forth the seriousness and recidivism factors for the sentencing court to consider in determining the most effective way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a non-exhaustive list of factors a trial court must consider when determining the seriousness of the offense and the likelihood that the offender will commit future offenses.
{¶31} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court severed the judicial-fact-finding portions of R.C. 2929.14, holding that "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306.
{¶32} "Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under 2953.08(G)(2)." Kalish at ¶ 12. However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C. 2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ 13. See also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1.
{¶33} Thus, post-Foster, "there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to 'consider' the statutory factors." Foster at ¶ 42. State v. Rutter, 5th Dist. Muskingum No. 2006-CA-0025, 2006-Ohio-4061. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions.
{¶34} There is no requirement in R.C. 2929.12 that the trial court state on the record that it has considered the statutory criteria concerning seriousness and recidivism or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431, 655 N.E.2d 820(4th Dist. 1995); State v. Woods, 5th Dist. Richland No. 05 CA 46, 2006-Ohio-1342, ¶ 19 ("... R.C. 2929.12 does not require specific language or specific findings on the record in order to show that the trial court considered the applicable seriousness and recidivism factors"). (Citations omitted).
{¶35} Appellant asserts that she should not have been sentenced to the maximum sentence because she was non-violent and struggled with mental illness. However, we find, in the case sub judice, the trial court considered and applied the factors set forth in R.C. 2929.11 and 2929.12 in sentencing appellant to the maximum prison sentence. Appellant was given multiple opportunities at residential treatment and to address her mental health and substance abuse issues, but was unsuccessful. At the January 22, 2020 hearing, appellant's counsel noted that appellant had stopped taking her mental health medications, causing her to spiral out of control. As noted in her PSI, she had an extensive criminal background and prior incarcerations. In the PSI, it was recommended that if appellant was non-compliant, she be sentenced to 36 months in prison. Moreover, appellant admitted to using methamphetamines the day prior to the offense.
{¶36} Appellant's two assignments of error are, therefore, overruled.
{¶37} Accordingly, the judgment of the Licking County Court of Common Pleas is affirmed. By: Baldwin, J. Hoffman, P.J. and Delaney, J. concur.