[Cite as State v. Wittenberg, 2017-Ohio-654.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104591
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
MARC D. WITTENBERG
DEFENDANT-APPELLEE
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-593183-A
BEFORE: Laster Mays, J., Keough, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 23, 2017
-i-
ATTORNEYS FOR APPELLANT
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anthony T. Miranda
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Roger M. Synenberg
Dominic J. Coletta
Clare Moran
Synenberg & Associates
55 Public Square, Suite 1331
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Plaintiff-appellant state of Ohio appeals the trial court’s decision to sentence
defendant-appellee Marc Wittenberg (“Wittenberg”) to community control sanctions
instead of imprisonment and asks this court to remand for the trial court to state its
findings under R.C. 2929.13 justifying a sentence of community control sanctions instead
of a term of imprisonment. We remand to the trial court.
I. Facts
{¶2} After executing a search warrant on Wittenberg’s home, the Southeast Area
Law Enforcement Task Force recovered approximately 8,800 grams of marijuana and 900
grams of packaged hashish. Wittenberg was subsequently charged with trafficking in
drugs, drug possession, and possessing criminal tools. Each of these counts had
one-year firearm, schoolyard, and juvenile specifications. As part of a plea agreement
entered into with the state, Wittenberg pleaded guilty to two counts of trafficking in
drugs, a third-degree felony, in violation of R.C. 2925.03(A)(2), and one count of
possessing criminal tools, a fifth-degree felony, in violation of R.C. 2923.24(A).
{¶3} Defense counsel submitted a sentencing memorandum to the state and the
trial court. After the state and defense counsel presented statements at sentencing, the
trial court sentenced Wittenberg to 12 months of community control sanctions and
imposed a $5,000 fine and court costs. The state timely filed this appeal and assigns two
errors for our review:
I. The trial court erred in imposing community control because there
was a presumption of prison, and the trial court did not make any findings
under R.C. 2929.13 justifying a departure from that presumption; and
II. The trial court erred in imposing community control because there
was a presumption of prison, and Wittenberg’s conduct was more serious
than conduct normally constituting the offense.
We will address the first assignment of error because it is dispositive of this appeal.
II. Sentencing
A. Standard of Review
{¶4} The Ohio Supreme Court has determined that “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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 23.
Clear 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.
Id. at ¶ 22.
B. Law and Analysis
{¶5} In the state’s assignments of error, the state argues that the trial court erred in
imposing community control because there was a presumption of prison, and the trial
court did not make any findings under R.C. 2929.13 justifying a departure from that
presumption. The state also contends that the trial court erred in imposing community
control because there was a presumption of prison, and Wittenberg’s conduct was more
serious than conduct normally constituting the offense. R.C. 2925.03(C)(1)(c) states,
“aggravated trafficking in drugs is a felony of the third degree, and, except as otherwise
provided in this division, there is a presumption for a prison term for the offense.”
{¶6} To defeat the presumption, the trial court must conduct the following
analysis:
[T]he sentencing court may impose a community control sanction or a
combination of community control sanctions instead of a prison term on an
offender for a felony * * * that is a violation of any provision of Chapter
2925 * * * of the Revised Code for which a presumption in favor of a
prison term is specified as being applicable if it makes both of the following
findings:
(a) A community control sanction or a combination of
community control sanctions would adequately punish the
offender and protect the public from future crime, because the
applicable factors under section 2929.12 of the Revised Code
indicating a lesser likelihood of recidivism outweigh the
applicable factors under that section indicating a greater
likelihood of recidivism.
(b) A community control sanction or a combination of
community control sanctions would not demean the
seriousness of the offense, because one or more factors under
section 2929.12 of the Revised Code that indicate that the
offender’s conduct was less serious than conduct normally
constituting the offense are applicable, and they outweigh the
applicable factors under that section that indicate that the
offender’s conduct was more serious than conduct normally
constituting the offense.
R.C. 2929.13(D)(2).
{¶7} After a review of the record, we find that the trial court did not make either of
the above findings on the record at sentencing. “Specifically, the trial court did not
make findings that a sentence of community control sanctions would adequately punish
the offender and protect the public from future crime and not demean the seriousness of
the offense.” State v. Heath, 170 Ohio App.3d 366, 2007-Ohio-536, 867 N.E.2d 453, ¶
8 (8th Dist.).
As an initial matter, we note that although the Ohio Supreme Court has held
that judicial findings are no longer mandated in many instances, they are
still required for downward departures, such as when a court refuses to
impose the presumptive prison term under R.C. 2929.13(D). State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. As stated in
Mathis, supra: “When findings under R.C. 2929.13(D) or 2929.20(H) are
missing from the appellate record, the appellate court shall remand the case
to the sentencing court to state on the record the required findings pursuant
to R.C. 2953.08(G)(1), after which the appellate court shall either affirm or
modify the sentence, or vacate the sentence and remand the case for a
hearing de novo if the sentence is contrary to law.”
Id. at ¶ 10.
{¶8} We find that by clear and convincing evidence that the record does not
support that the trial court made the necessary findings to justify sentencing the appellee
to community control. We vacate the sentence and remand this case to the trial court to
resentence appellee and state on the record the required findings pursuant to R.C.
2953.08(G)(1). As a result of this remand, the state’s second assignment of error is
moot.
{¶9} Judgment is vacated and remanded.
It is ordered that the appellant and appellee split costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
MARY EILEEN KILBANE, J., CONCUR