State v. Dague

[Cite as State v. Dague, 2017-Ohio-8603.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2017-CA-26
:
v. : T.C. NO. 16-CR-462
:
BRIAN A. DAGUE, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 17th day of November, 2017.

...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, 50
East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 S. Main Street, Suite 400,
Dayton, Ohio 45422
Attorney for Defendant-Appellant

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the March 10, 2017 Notice of Appeal of

Brian Adlon Dague, Jr. Dague appeals from his March 1, 2017 Judgment Entry of
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Conviction, following a guilty plea to attempted theft, in violation of R.C. 2923.02 and

2913.02(A)(1), a felony of the fourth degree. The trial court sentenced Dague to 16

months in prison.

{¶ 2} On September 19, 2016, Dague was indicted on two counts of theft, in

violation of R.C. 2913.02(A)(1). Count One was a felony of the fifth degree, while Count

Two was a felony of the third degree. The charges arose after Dague took numerous

items from his father’s home in New Carlisle between August 10 -14, 2016, and attempted

to sell them at a pawn shop. Dague pled not guilty on September 23, 2016, and on

February 13, 2017, pursuant to a plea agreement, he entered his plea of guilty to an

amended Count Two of the indictment for attempted theft, and Count One was dismissed.

Restitution was agreed to at $1,475.00.

{¶ 3} Dague asserts a single assignment of error herein as follows:

THE TRIAL COURT’S SENTENCE OF 16 MONTHS

IMPRISONMENT WAS NOT CLEARLY AND CONVINCINGLY

SUPPORTED BY THE RECORD.

{¶ 4} Dague acknowledges that his sentence is within the statutory range of six to

18 months for a felony of the fourth degree and accordingly not contrary to law. See

R.C. 2929.14(A)(4). Dague further acknowledges that “the trial court expressly stated

that it had considered the statutory principles of sentencing as well as the statutory

seriousness and recidivism factors of R.C. 2929.11 and 2929.12.” Dague asserts,

however, that while the trial court ordered a presentence investigation report, “as the trial

court indicated at the sentencing hearing of February 28, 2017, the presentence

investigation was incomplete. While the report did include evidence of Appellant’s prior
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record, it notably did not include an Ohio Risk Assessment Survey score or significant

personal information” about Dague “because the probation officer preparing the

presentence report never met” with Dague. Dague asserts that his attorney advised the

court that Dague “attempted several times to call the number he was provided, but was

unable to make contact with the probation officer in time for the presentence report.”

Dague asserts:

Instead of re-referring Appellant for an interview with the probation

officer, the trial court proceeded to sentencing with the limited information it

had before it and defense counsel’s arguments that Appellant’s drug

addiction did not warrant a prison sentence and that community control

sanctions would more appropriately serve both Appellant and the

community and reduce his risk of recidivism.

Given the limited nature of the information available to the trial court

and the lack of a complete presentence investigation report, Appellant

submits that the record does not support the trial court’s sentence of 16

months imprisonment. As such, Appellant demands that the judgment and

sentence of the trial court be vacated and that the matter be remanded to

the trial court for resentencing following a complete presentence

investigation report.

{¶ 5} The State responds as follows:

The trial court’s sentence is supported by the record. Defendant

had prior convictions, including a prior felony conviction for receiving stolen

property, and failed to complete a previous attempt at intervention in lieu of
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conviction. * * * Defendant’s offense in this instance involved stealing from

his own father. * ** The trial court found that prior sanction short of prison

had not been successful, and therefore a prison term was appropriate. * * *

* * * When the trial court asked Defendant if he wished to say

anything, Defendant declined to make any statement to the trial court.

The failure of Defendant to speak to the probation officer for the

presentence investigation report, if error at all, is harmless. A presentence

investigation report is not required when a trial court sentences a defendant

to prison. * * *

In addition, if there was some information that Defendant believed

the trial court should know before imposing sentence, he had an opportunity

to say it in open court. * * *

Given the deferential standard of review, the record does not clearly

and convincingly fail to support the sentence imposed by the trial court. * *

*

{¶ 6} As this Court has previously noted:

“This court no longer applies an abuse of discretion standard when

reviewing felony sentences, as the Supreme Court of Ohio has made clear

that felony sentences are to be reviewed in accordance with the standard

set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist. Clark No. 2016-

CA-28, 2016-Ohio-7415, ¶ 6, citing State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State v. Rodeffer,

2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.) Under the plain language
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of R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence

that the record does not support the trial court's findings under relevant

statutes or that the sentence is otherwise contrary to law.” Marcum at ¶ 1.

“This is a very deferential standard of review, as the question is not whether

the trial court had clear and convincing evidence to support its findings, but

rather, whether we clearly and convincingly find that the record fails to

support the trial court's findings.” State v. Cochran, 2d Dist. Clark No.

2016-CA-33, 2017-Ohio-217, ¶ 7, citing Rodeffer at ¶ 31.

Even before Marcum, we had indicated “[t]he trial court has full

discretion to impose any sentence within the authorized statutory range,

and the court is not required to make any findings or give reasons for

imposing maximum or more than minimum sentences.” (Citation

omitted.) State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-

5759. Accord State v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-

4201, ¶ 14. But “in exercising its discretion, a trial court must consider the

statutory policies that apply to every felony offense, including those set out

in R.C. 2929.11 and R.C. 2929.12.” (Citations omitted.) State v. Castle,

2016-Ohio-4974, 67 N.E.3d 1283, ¶ 26 (2d Dist.). * * *

State v. Folk, 2d Dist. Montgomery No. 27375, 2017-Ohio-8105,¶ 5-6.

{¶ 7} The following exchange occurred at sentencing:

THE COURT: Defense wish to put anything on record?

MR. MURPHY: Yes, Your Honor. Thank you.
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Unfortunately, as the State has indicated, we don’t have all the

information - - or the Court doesn’t have all the information it needs to have

a full presentence investigation. I briefly spoke with Brian out in the hallway

as to why he did not contact Mr. Evans, and he indicated that the number

that he had he called several times. When I looked at the card, it is actually

a card for Deputy Berner, so I’m not sure how he got that card; but he

seemed to believe that was the card or the number he was supposed to

call. So I’m not sure where the mix-up happened, but that’s Brian’s

explanation as to why he was not in contact with Mr. Evans regarding the

presentence investigation.

Reading the presentence investigation and also reading the police

report, I think it’s obvious that Brian has and still suffers from a severe drug

addiction. It appears he does have or was placed on an ILC program back

in 2008 and, unfortunately, was not able to successfully complete that. It

appears, during the same time period, he did have a felony receiving stolen

property as well; and then it looks like a few misdemeanor convictions. I

think, unfortunately, probably the more difficult thing for him is that I think

he’s burned a lot of bridges with his family; and that’s an unfortunate thing

because it just makes the process which he’s going to have to go through

one way or the other that much more difficult without the support and love

of his family.

***

So, again, we understand that the Court’s not required to place him
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on community control and would be certainly justified imposing a sentence

to prison. We would ask the Court to consider some alternative means of

punishment. * * *

THE COURT: Mr. Dague, is there anything you want to say?

DEFENDANT: No, Your Honor.

THE COURT: * * *

The Court has reviewed the information available to it within the

presentence report, which does lack any potential information of any

personal interview that was supposed to be gathered.

I find the following factors apply to this case. There was serious

economic harm as a result of the offense to the victim. The relationship

with the victim facilitated that offense.

As to 2929.12(C), find the Defendant did not cause or expect to

cause physical harm to persons or property.

As to 2929.12(D), recidivism factors, the Defendant has a history of

criminal convictions and has not responded favorably to sanctions

previously imposed for those convictions. There’s no doubt that there’s a

pattern of substance abuse here related to the offense. At least we can

assume they were related to the offense, I guess; but, again, we don’t have

that information from the Defendant.

As to his willingness to get treatment, I don’t have any particular

evidence for that. I do find no genuine remorse for the offense. I find no

factors - - well, excuse me, one factor in 2929.12(E) which is prior to
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committing the offense the Defendant did not have a juvenile delinquency

record.

There is no military service record to consider. I have no Ohio Risk

Assessment Survey score. Based upon the Defendant’s record,

community control is not mandatory.

All the information I have before me, I find the Defendant is not

amenable to community control sanctions. It’s the order of the Court,

therefore, the Defendant be sentenced to 16 Months in the Ohio

Department of Rehabilitation and Corrections * * *.

{¶ 8} Dague’s Judgment Entry of Conviction provides in part:

The Court has considered the record, oral statements, the purposes

and principles of sentencing under R.C. § 2929.11, the seriousness and

recidivism factors relevant to the offense and offender pursuant to R.C. §

2929.12, and the need for deterrence, incapacitation, rehabilitation and

restitution and the sentencing guidelines contained in R.C. § 2929.13. The

Court is guided by the overriding purposes of felony sentencing, including

protection of the public from future crime by the offender and others and

punishment of the offender, using the minimum sanctions that the court

determines will accomplish those purposes without imposing an

unnecessary burden on state or local government resources.

The court further finds that, after considering the factors set forth in

R.C. § 2929.12, a prison term is consistent with the purposes and principles

of sentencing set forth in R.C. 2929.11 and the defendant is not amenable
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to an available community control sanction.

{¶ 9} We have reviewed the entirety of the record and the presentence

investigation report. Regarding Dague’s assertion that the probation officer preparing

the report never interviewed Dague, and that Dague should have been “re-referred” for

an interview prior to sentencing, Probation Officer Daniel Evans’ presentence

investigation report belies Dague’s argument. It provides in part as follows:

At the time of the plea on February 10th, 2017, the defendant was

given a questionnaire to complete and also given this officer’s business card

to call him on Monday, February 13th, 2017. The defendant has not

contacted this probation officer in reference to his presentence investigation

interview. There were two phone numbers listed on the questionnaire that

the defendant completed. This officer attempted to make contact with the

defendant on February 21, 2017. This officer called the first number the

defendant had listed on the form and got a recording that the phone number

was out of service. The second phone number, which was the defendant’s

children’s mother, was contacted and this officer left a message to have the

defendant call this officer. To date, this officer has not received a call back

from the children’s mother or the defendant. This officer spoke with the

defendant’s attorney on February 23rd, 2017, and was given one additional

phone number to call. This officer called that number and left a message.

This officer was called back on February 24, 2017, stating this defendant

has never lived at that address and wished for this officer to lose the

number.
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{¶ 10} Finally, Dague acknowledges that his sentence is not contrary to law, and

we note that the trial court was not required to make any statutory findings in sentencing

Dague. The sentencing transcript and the Judgment Entry of Conviction reflect that the

court considered the factors set forth in R.C. 2929.11 and R.C. 2929.12. Accordingly,

Dague’s sole assignment of error is overruled, and the judgment of the trial court is

affirmed.

.............

HALL, P.J. and FROELICH, J., concur.

Copies mailed to:

Andrew P. Pickering
Michael R. Pentecost
Hon. Richard J. O’Neill