State v. Cihon

[Cite as State v. Cihon, 2023-Ohio-3108.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 22CA13

v. :

SHANE CIHON, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Christopher Pagan, Middletown, Ohio, for appellant1.

Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy
Fisher, Assistant Gallia County Prosecuting Attorney, Gallipolis,
Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-28-23
ABELE, J.

{¶1} This is an appeal from a Gallia County Common Pleas Court

sentence imposed for a violation of community control. Shane

Cihon, defendant below and appellant herein, assigns three errors

for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT’S CONSECUTIVE-SENTENCES
FINDINGS AT THE SENTENCING AND REVOCATION

1
Different counsel represented appellant during the trial
court proceedings.
 2
GALLIA, 22CA13

HEARINGS WERE ERROR.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT APPLIED A REPEALED STANDARD
FOR A NONTECHNICAL COMMUNITY-CONTROL VIOLATION.
UNDER THE NEW STANDARD, THE RECORD FAILS TO
SUPPORT A FINDING THAT CIHON’S DISCHARGE FROM
THE CBCF DEMONSTRATED HIS REFUSAL TO CONTINUE
WITH THE CBCF PROGRAM, HAVING ABANDONED IT. SO
THE TRIAL COURT’S IMPOSITION OF A PRISON
SANCTION EXCEEDING 180-DAYS WAS CONTRARY TO
LAW, AN ABUSE OF DISCRETION, AND CLEARLY-AND-
CONVINCINGLY UNSUPPORTED BY THE RECORD .”

THIRD ASSIGNMENT OF ERROR:

“IT IS UNLAWFUL TO DENY APPELLATE COUNSEL A
COPY OF CIHON’S PSI TO INVESTIGATE, RESEARCH,
AND PRESENT ISSUES FOR APPEAL.”

{¶2} In November 2021, a Gallia County Grand Jury returned an

indictment that charged appellant with (1) grand theft of a motor

vehicle in violation of R.C. 2913.02(A)(1), a fourth-degree felony,

and (2) vandalism in violation of R.C. 2909.05(B)(1)(a), a fifth-

degree felony. Appellant pleaded not guilty to both charges.

{¶3} At the February 24, 2022 plea hearing, appellee recited

the terms of the parties’ plea agreement:

Mr. Cihon would enter pleas of guilty to Count 1 and Count
2. Count 1 is grand theft of a motor vehicle, in violation
of 2913.02(A)(1), a felony of the fourth degree due to the
property involved. Count 2 is vandalism in violation of
2909.05(B)(1)(A), felony of the fifth degree due to the
value involved in the vandalism. In return for those two
pleas of guilty the joint recommendation at the time of
sentencing is for a period of community control, 36 months.
 3
GALLIA, 22CA13

Also Mr. Cihon agrees to pay restitution in the amount of
$4,614.50 to the victim * * *, that’s from Count 1. Also
he agrees to successfully complete the STAR program as a
special condition of the community control and he agrees
to pay the cost in the case.

{¶4} After appellant’s counsel agreed with the plea

agreement’s terms, the trial court gave the necessary advisements

and asked appellant, “So you and the State have presented to me an

agreed recommendation for sentencing. You understand I do not have

to accept that?” Appellant replied, “Yes ma’am.” The court

informed appellant that (1) on the grand theft charge, he “could

receive prison of six, seven, eight, nine, 10, 11, 12, 13, 14, 15,

16, 17 or 18 months” and face fines of “up to $5,000,” and (2) on

the vandalism charge, he “could receive prison of six, seven,

eight, nine, 10, 11 or 12 months” and a “fines of up to $2,500,”

and (3) the maximum would be 30 months. Appellant stated that he

understood this information.

{¶5} At this point, appellant entered a guilty plea to both

counts. Appellant acknowledged on his plea form that the maximum

penalty for Count 1 is 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,

or 18 months, the maximum penalty for Count 2 is 6, 7, 8, 9, 10,

11, or 12 months, and maximum fines of $5,000 and $2,500,

respectively. The agreement stated:

Prison terms for multiple charges, even if consecutive
 4
GALLIA, 22CA13

sentences are not mandatory, may be imposed consecutively
by the Court.

Court costs, restitution and other financial sanctions
including fines, day fines, and reimbursement for the cost
of any sanctions may also be imposed.

* * *

Community Control: If this Court is not required by law to
impose a prison sanction, it may impose community control
sanction or non-prison sanctions upon me. I understand
that if I violate the terms or conditions of a community
control sanction, the Court may extend the time for which
I am subject to this sanction up to a maximum of 5 years,
impose a more restrictive sanction, or imprison me for up
to the maximum stated term allowed for the offenses as set
out above.

I understand the nature of these charges and the possible
defenses I might have. I am satisfied with my attorney’s
advice and competence. * * * No promises have been made
except as part of this plea agreement stated entirely as
follows:

Joint recommendation for 36 months community control and
Defendant agrees to pay restitution in the amount of
4,614.50 to the victim * * *. Defendant to successfully
complete the STAR program. Defendant agrees to pay costs
in all cases.

* * *

I understand that the recommendation of the Prosecuting
Attorney is not binding upon the Court and that the Court,
and the Court alone, determines the appropriate sentence.

{¶6} At appellant’s February 28, 2022 sentencing hearing, the

trial court stated that (1) if the court ordered the sentences to

be served consecutively, appellant faced up to 30 months in prison
 5
GALLIA, 22CA13

and $7,500 in fines, and (2) in lieu of prison, the court could

impose up to a five year community control sanction. The court

also asked the state to recite the parties’ agreement, and the

state indicated the joint recommendation included: (1) 36 months

community control, (2) successful completion of the STAR CBCF

program, (3) $4,614.50 restitution to the victim, and (4) pay court

costs. Defense counsel agreed that appellee accurately recited

their agreement. The court then noted that it had reviewed the

pre-sentence investigation report (PSI) and found “three prior

prison terms served” under (D)(2), and under (D)(4) “a pattern of

substance use and refusal or inability to remain in treatment.”

The court then accepted the parties’ community control

recommendation and imposed a 36-month sentence on each count, to be

served “at one time for one 36 month period.” The court also

imposed a 180 day suspended jail sentence on each count. The court

further specified that for (1) the fifth-degree felony, the court

reserved six, seven, eight, nine, 10, 11, or 12 months, and (2) the

fourth-degree felony, the court reserved six, seven, eight, nine,

10, 11, 12, 13, 14, 15, 16, 17 or 18 months “consecutively by

agreement but I’m also finding consecutive sentences are necessary

to protect the public from future crime,” and not disproportionate.

(Emphasis added.)
 6
GALLIA, 22CA13

{¶7} The trial court’s sentencing entry provides that the

court considered counsels’ oral statements, appellant’s oral

statement, the victim’s statement, the underlying agreement recited

on the record, appellant’s record, the PSI, and other relevant

information. The court further noted appellant’s “history of

criminal convictions, having served three prior prison terms, [and]

* * * exhibits a pattern of drug abuse related to the offense and a

refusal to engage in treatment.” The court concluded that the

“agreed sentence complies with the statutory mandates as to

sentencing and accepts the sentence.” Consequently, the court

sentenced appellant to serve 36 months community control for each

count, to be served concurrently with each other. The court

stated:

Defendant was informed that if Defendant violates any of
the terms of community control, violates any law or leaves
the state without permission of the probation officer, such
violation may result in imposition of a reserved prison
term on each count from the range of prison terms for the
offense: six to twelve months for the underlying fifth
degree felony; and six to eighteen months for the
underlying fourth degree felony.

The court further ordered the sentences to “be served consecutively

to each other,” and stated that consecutive sentences “are agreed

upon by the parties.” (Emphasis added.) Specific terms of

probation included: (1) successfully complete a community-based
 7
GALLIA, 22CA13

correctional facility (CBCF) program; (2) after release from the

CBCF, successfully complete transitional living; (3) intensive

supervision reporting; (4) participate in substance abuse and

mental health evaluation and treatment, including Medication

Assisted Treatment if appropriate; (5) complete moral recognition

training; (6) comply with 60 days of substance abuse monitoring

(SAM); and (7) serve 180 days of jail on each count (commitment

deferred until the court determines it necessary). The court also

advised appellant that, if he violates community control and is

sentenced to prison, after his release the APA may place him on

post-release control up to two years. The court further explained

the consequences of a post-release control violation.

{¶8} On June 7, 2022, appellee moved to revoke appellant’s

community control because of appellant’s involvement in a verbal

and physical altercation with a CBCF resident, “a major rule

violation of physical aggression and STAR determined that defendant

was not amenable to treatment at this time. The defendant was

unsuccessfully discharged from STAR Community Justice Center on

June 6, 2022.”

{¶9} At the June 9, 2022 hearing, appellant waived the reading

of his alleged community control violation, the notice period, and

his rights and penalties. Appellant also denied the alleged
 8
GALLIA, 22CA13

violation. At the July 25, 2022 hearing, the trial court observed

that the state claimed that appellant had been “unsuccessfully

discharged from STAR [the CBCF].” The court reminded appellant of

his sentence and indicated “if I choose to impose maximum prison

consecutively, one after another, you’re facing 30 months” and, in

the alternative, “we could extend the period of your community

control up to the full five years, impose more restrictive

sanctions including local jail time, lockdown in-patient rehab or

another residential sanctions uh, including the CBCF.” Appellant

indicated to the court that he understood the potential sanctions,

and further indicated he understood the post-release control term

and consequences for a violation. After appellant admitted to the

community control violations, the court’s entry states:

The Defendant previously entered a guilty plea to Count
One, “Grand Theft (MV),” a violation of Section
2913.02(A)/(1)(B)(5) of the Ohio Revised Code, a felony of
the fourth degree; and Count Two, “Vandalism,” a violation
of Section 2909.05(B)(1)(a) of the Ohio Revised Code, a
felony of the fifth degree.

The Court further finds that the Defendant was placed on
community control for a period of thirty-six (36) months
on each count on February 28, 2022. Defendant was
specifically notified that a violation of community control
would result in imprisonment for six to eighteen (6-18)
months on Count One; and six to twelve (6-12) months on
Count Two.

The Court further finds that the Defendant has violated
 9
GALLIA, 22CA13

the terms of the community control sanction order by 1)
failed to successfully complete CBCF program.

* * *

The Defendant was specifically advised that although the
Court accepted the guilty plea, the Court is not under any
obligation to accept the plea agreement as to penalty and
same is reserved pending the pre-sentence investigation
report.

{¶10} At the August 15, 2022, sentencing hearing, the trial

court further determined that appellant’s CBCF discharge was

“nontechnical.” After the court noted appellant’s history of

criminal convictions, less than favorable response to previous

sanctions, pattern of drug abuse, and refusal to engage in

treatment, the court revoked appellant’s community control sentence

and ordered him to serve an 18-month prison term on Count 1 and a

12-month prison term on Count 2, to be served consecutively for a

term of 30 months. This appeal followed.

I.

{¶11} In his first assignment of error, appellant asserts that

the trial court’s consecutive sentence findings at his sentencing

and revocation hearings constitute reversible error.2 In

2
A trial court may make consecutive-sentencing findings using
a preponderance of the evidence standard, a more likely than not
standard. However, pursuant to R.C. 2953.08(G)(2), an appellate
 10
GALLIA, 22CA13

particular, appellant argues that the parties’ plea agreement is

silent about consecutive sentences and the court’s alternative

holding, made at the sentencing hearing, that consecutive sentences

were necessary for any future violation, conflicts with its

simultaneous holding that appellant would be amenable to community

control.

{¶12} Appellant contends that the trial court should not make

consecutive-sentencing findings at a sentencing hearing when the

court ultimately imposed a community control sanction. In support,

appellant cites State v. Howard, 162 Ohio St.3d 314, 2020-Ohio-314,

165 N.E.3d 1088, ¶ 23-28 for the proposition that a defendant is

not required to challenge on direct appeal the lack of consecutive-

sentencing findings and that a trial court must make consecutive-

sentencing findings when it revokes community control. Id. at ¶

25.

{¶13} This court has previously held that “a trial court is not

court may reverse or modify a trial court's consecutive sentence if
it clearly and convincingly finds that the record does not support
the findings. State v. Gwynne, __ Ohio St.3d. , 2022-Ohio-4607.
The supreme court instructed that the first core requirement is
there be some evidentiary support in the record for the
consecutive-sentence findings that the trial court made. The
second requirement is that “whatever evidentiary basis there is,
that it be adequate to fully support the trial court's consecutive-
sentence findings.” We include more detailed discussion of Gwynne
in Section IV of this opinion.
 11
GALLIA, 22CA13

prohibited, per se, from sentencing an offender to concurrent terms

of community control but consecutive prison terms as a possible

punishment for violating those community control sanctions.”

State v. Marcum, 4th Dist. Hocking No. 19CA7, 2020-Ohio-3962, ¶ 10,

citing State v. Dusek, 4th Dist. Hocking No. 18CA18, 2019-Ohio-

3477, ¶ 4. Moreover, the Supreme Court of Ohio held in State v.

Jones, __ Ohio St.3d __, 2022-Ohio-4485, __ N.E.3d __, that “when a

court revokes community control, it may require that the reserved

prison term be served consecutively to any other sentence then

existing or then being imposed but only if at the time it imposed

community control, it notified the offender that a consecutive

sentence on revocation of community control was a possibility.”

Id. at ¶ 2.

{¶14} In the case sub judice, at appellant’s original

sentencing the trial court considered the R.C. 2929.11 principles

and purposes of sentencing and the R.C. 2929.12 seriousness and

recidivism factors and sentenced appellant to serve two 36-month

terms of community control, to be served concurrently with each

other. The court further informed appellant that, if he violated

community control, violated any law, or left the state without

permission, such violation “may result in imposition of a reserved

prison term on each from the range of prison terms for the offense:
 12
GALLIA, 22CA13

six to twelve months for the underlying fifth degree felony; and

six to eighteen months for the underlying fourth degree felony.

Ohio Revised Code Section 2929.19(B)(4). The sentence in this case

shall be served consecutively to each other.” The court made the

required consecutive sentencing findings under R.C. 2929.14(C) and

found:

Consecutive sentences are agreed upon by the parties and
are necessary to protect the public from future crime and
to punish the offender. Consecutive sentences are not
disproportionate to the seriousness of the offender’s
conduct nor are they disproportionate to the danger the
offender poses to the public. Further the Defendant’s
history of criminal conduct demonstrates the necessity of
consecutive sentences to protect the public from future
crime. Ohio Revised Code Section 2929.14(C).

{¶15} Thus, at the original sentencing hearing the trial court

made the consecutive-sentencing findings before it imposed two

concurrent community control terms. At the revocation hearing, the

trial court considered appellant’s physical altercation at the

CBCF, reviewed the R.C. 2929.11 and 2929.12 principles and factors,

and again made the consecutive-sentence findings. Thus, we find no

abuse of discretion in the trial court’s decision to revoke

appellant’s community control. The record also clearly and

convincingly supports the trial court’s consecutive sentencing

findings.
 13
GALLIA, 22CA13

{¶16} Appellant also contends that his plea agreement is

contractual. However, sentencing recommendations do not bind a

trial court. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1,

922 N.E.2d 923, ¶ 28 (court may reject a plea agreement and not

bound by jointly-recommended sentence). Although the trial court

may have misspoken in stating that the consecutive sentence is an

agreed sentence, the court did, in fact, make the required findings

to impose consecutive sentences at both the original sentencing

hearing and again at the revocation hearing. While appellant

argues that prison should be discouraged for fourth and fifth-

degree felony offenders and that appellant had “showed commitment

and rehabilitation,” we agree with the trial court’s conclusion

that appellant’s violent acts and unsuccessful discharge from the

CBCF program violated the terms of his community control.

{¶17} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II.

{¶18} In his second assignment of error, appellant asserts that

the trial court applied an outdated standard to determine what

constitutes a “technical” or “nontechnical” community control

violation. Appellant contends that under the new statutory
 14
GALLIA, 22CA13

standard, the record in the case sub judice fails to support a

finding that appellant’s discharge from the CBCF demonstrated his

refusal to continue with the CBCF program. Therefore, appellant

argues that the trial court’s imposition of a prison sanction that

exceeds 180 days is contrary to law, constitutes an abuse of

discretion, and the record does not clearly and convincingly

support the sanction.

{¶19} Generally, appellate courts review trial court decisions

to revoke community control sanctions under the abuse of discretion

standard of review. State v. Crose, 3d Dist. Crawford No. 3-22-34,

2023-Ohio-880, ¶ 8; State v. Mehl, 4th Dist. Athens No. 20CA14,

2022-Ohio-1154, ¶ 7. An abuse of discretion suggests that a

decision is unreasonable, arbitrary, or unconscionable. State v.

Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).

{¶20} Mehl acknowledged this court’s two-part standard in

community control revocation cases. First, we review the record to

determine “whether there is substantial evidence to support the

court’s finding that [the offender] violated the terms of * * *

community control.” Mehl at ¶ 7, citing In the Matter of C.M.C.,

4th Dist. Washington No. 09CA15, 2009-Ohio-4223, ¶ 17. If

substantial evidence exists, “we review the court’s ultimate
[Cite as State v. Cihon, 2023-Ohio-3108.]

decision to revoke * * * under the more deferential abuse of

discretion standard.” Id.

[A] trial court’s decision to revoke community control is
reviewed for an abuse of discretion, and in making its
determination, a trial court can take into consideration
the nature of the community control violation at issue,
the manner in which the condition was violated, as well as
any other relevant circumstances in the case. Further,
trial courts are granted much greater latitude and
discretion in their decision making when the violation is
one of substance rather than form. Additionally, when a
trial court determines that community control should be
revoked and a prison term should be imposed, a trial court
must consider both the seriousness of the original offense
leading to the imposition of community control as well as
the gravity of the community control violation. Finally,
in imposing a prison sentence for a violation of community
control, trial courts should consider the principles and
purposes of felony sentences, should balance the
seriousness and recidivism factors found in R.C. 2929.11
and R.C. 2929.12, and then should impose a prison term
within the statutory range for the underlying offense,
which the defendant was advised during his or her initial
sentencing hearing.

Mehl at ¶ 18.

{¶21} Previously, the Supreme Court of Ohio defined

“nontechnical community-control violation” in State v. Nelson, 162

Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, ¶ 26. The court

observed that the term “technical violation” is not defined in the

statute, and distinguished between whether a rule is “specifically

tailored to address” the defendant’s misconduct, or whether a rule

is a “mere administrative requirement facilitating community

control supervision.” Id. at ¶ 33. In particular, the court held
[Cite as State v. Cihon, 2023-Ohio-3108.]

that a violation of a community-control sanction is nontechnical

if, considering the totality of the circumstances, the violation

concerns a condition of community control “specifically tailored to

address” matters related to the defendant’s misconduct or if it can

be deemed a “substantive rehabilitative requirement which addressed

a significant factor contributing to” the defendant’s misconduct.

Id. at ¶ 26, citing State v. Davis, 12th Dist. Warren No. CA2017-

11-156, 2018-Ohio-2672, ¶ 17-18. On the other hand, a violation is

“technical” when the condition violated equates to “an

administrative requirement facilitating community control

supervision.” Nelson at ¶ 26, citing Davis at ¶ 18.

{¶22} As appellant points out, after Nelson on April 12, 2021

the General Assembly amended R.C. 2929.15 to define the term

“technical violation.” R.C. 2929.15(E) provides:

(E) As used in this section, “technical violation” means a
violation of the conditions of a community control sanction
imposed for a felony of the fifth degree, or for a felony
of the fourth degree that is not an offense of violence
and is not a sexually oriented offense, and to which
neither of the following applies:

(1) The violation consists of a new criminal offense that
is a felony or that is a misdemeanor other than a minor
misdemeanor, and the violation is committed while under
the community control sanction.

(2) The violation consists of or includes the offender’s
articulated or demonstrated refusal to participate in the
community control sanction imposed on the offender or any
of its conditions, and the refusal demonstrates to the
court that the offender has abandoned the objects of the
[Cite as State v. Cihon, 2023-Ohio-3108.]

community control sanction or condition.

(Emphasis added).

{¶23} In the case at bar, the CBCF discharged appellant due to

his physical altercation with a fellow resident, an offense of

violence, that during the revocation hearing he admitted to having

committed. The trial court asked, “So you understand what the

State says you’ve done to violate them?” Appellant replied, “Yes,

ma’am.” When asked if he agreed that the state would be able to

prove a violation, appellant replied, “Yes ma’am.” At sentencing,

the court stated: “Mr. Cihon admitted to and was found in violation

of the terms of community control * * * as set forth in the filing

of June 7. Unsuccessful discharge at STAR because of harming

another * * * resident.”

{¶24} Thus, regardless of whether the R.C. 2929.15 amendments

supersede the Nelson standard, we believe that appellant’s

community control violation constitutes a violent act that

constitutes an act of violence, and does not fall under the

definition of “technical violation.”

Consequently, under both the Nelson standard and amended R.C.

2929.15(E), appellant’s violent act that led to his discharge from

the CBCF constitutes a non-technical violation.

{¶25} Accordingly, we overrule appellant’s second assignment of
[Cite as State v. Cihon, 2023-Ohio-3108.]

error.

III.

{¶26} In his final assignment of error, appellant asserts that

denying appellate counsel a copy of appellant’s pre-sentence

investigation (PSI) report is unlawful. In particular, appellant

contends that counsel’s lack of access and ability to retain a copy

of appellant’s PSI hampers counsel’s ability to investigate,

research, and present issues for appeal, and instead is required to

travel to view the PSI and make notes.

{¶27} Crim.R. 32.2 and R.C. 2951.03 address presentence

investigation reports. Crim.R. 32.2 provides:

Unless the defendant and the prosecutor in the case agree
to waive the presentence investigation report, the court
shall, in felony cases, order a presentence investigation
and report before imposing community control sanctions or
granting probation. The court may order a presentence
investigation report notwithstanding the agreement to
waive the report. In misdemeanor cases the court may order
a presentence investigation before granting probation.

R.C. 2951.03(A)(1) provides, “No person who has been convicted of

or pleaded guilty to a felony shall be placed under a community

control sanction until a written presentence investigation report

has been considered by the court.” The report must address the

circumstances of the offense; the criminal record, social history,

and present condition of the defendant; and, possibly, the victims’
[Cite as State v. Cihon, 2023-Ohio-3108.]

statements regarding the offense’s impact. Id.; State v. Johnson,

138 Ohio St.3d 282, 2014-Ohio-770, 6 N.E.3d 38, ¶ 8.

{¶28} R.C. 2951.03 permits access to the PSI report in certain

circumstances. R.C. 2951.03(B)(1) instructs that “the court, at a

reasonable time before imposing sentence, shall permit the

defendant or the defendant’s counsel to read the report,” with some

exceptions. Further, as per R.C. 2951.03(B)(2), “[p]rior to

sentencing, the court shall permit the defendant and the

defendant’s counsel to comment on the presentence investigation

report and, in its discretion, may permit the defendant and the

defendant’s counsel to introduce testimony or other information

that relates to any alleged factual inaccuracy contained in the

report.” In addition, R.C. 2951.03(D)(1) provides when a defendant

and counsel may seek access to the presentence investigation

report, which is otherwise “confidential information” and “not a

public record:”

The court, an appellate court, * * * the defendant, the
defendant’s counsel, the prosecutor who is handling the
prosecution of the case against the defendant, * * * may
inspect, receive copies of, retain copies of, and use a
presentence investigation report * * * only for the
purposes of or only as authorized by Criminal Rule 32.2 or
this section, division (F)(1) of section 2953.08, section
2947.06, or another section of the Revised Code.

{¶29} Relevant to the case at bar, pursuant to R.C.
[Cite as State v. Cihon, 2023-Ohio-3108.]

2951.03(D)(2) the defendant, his counsel, and the prosecutor may

not make copies of the report. Instead, they must return all

copies of the report to the court “[i]mmediately following the

imposition of sentence upon the defendant,” and per R.C.

2951.03(D)(3), the “court or other authorized holder of the report

* * * shall retain the report * * * under seal,” except when it is

being used for specified purposes. R.C. 2951.03(D)(2) and (3);

Johnson at ¶ 11.

{¶30} In Johnson, the Supreme Court of Ohio held that newly

appointed appellate counsel may access a presentence investigation

report upon a proper showing, subject to similar restrictions as in

R.C. 2951.03 and 2953.08(F)(1), and any further directives of the

appellate court. Id. at ¶ 14. Thus, appellate counsel is

permitted access for appellant’s first appeal as of right. See

also State v. Vasquez, 9th Dist. Summit No. 29858, 2021-Ohio-3453

(access to PSI denied when defendant sought PSI for use in future

petition for post-conviction relief, noting due process

implications of Johnson not present). Moreover, R.C. 2951.03(D)(2)

provides that, unless a presentence investigation report is being

used for one of the permissible purposes listed in division (D)(1)

of the statute, the report must be kept under seal.

{¶31} While we understand that this procedure appellant
[Cite as State v. Cihon, 2023-Ohio-3108.]

outlines could indeed create a hardship for appellant’s counsel, as

an intermediate appellate court we may not depart from Supreme

Court of Ohio directives and statutory requirements. Therefore, we

overrule appellant’s third assignment of error.

IV.

{¶32} Additionally, in his reply brief appellant cites the

recent Supreme Court of Ohio decision, issued after appellant

submitted his merit brief, that expanded appellate review and

sentencing determinations of consecutive sentences. In State v.

Gwynne, __ Ohio St.3d. __, 2022-Ohio-4607, the court created a de

novo review process for appellate courts at ¶ 2:

We hold that based on the language of R.C. 2929.14(C)
(4), the consecutive-sentence findings are not simply
threshold findings that, once made, permit any amount of
consecutively stacked individual sentences. Rather,
these findings must be made in consideration of the
aggregate term to be imposed. Additionally, we hold that
appellate review of consecutive sentences under R.C.
2953.08(G)(2) does not require appellate courts to defer
to the sentencing court’s findings in any manner.
Instead, the plain language of the statute requires
appellate courts to review the record de novo and decide
whether the record clearly and convincingly does not
support the consecutive-sentence findings.

Thus, appellate courts are now apparently tasked to consider,

independently of a trial court’s determination, whether the record
[Cite as State v. Cihon, 2023-Ohio-3108.]

clearly and convincingly supports the imposition of an aggregate

sentence that is necessary, proportionate and arises from

sufficiently aggravated circumstances to overcome the statutory

presumption for the imposition of concurrent sentences. R.C.

2929.41(A) and R.C. 2929.14(C)(4).

{¶33} In the case sub judice, after our review we believe that

the record supports the trial court’s necessity and proportionality

findings and, after our de novo review, we believe the record

clearly and convincingly supports the consecutive sentence

findings. Here, appellant’s history of criminal convictions,

pattern of drug abuse, apparent unwillingness or inability to

engage in, and comply with, drug treatment programs and refrain

from committing a major rule violation (act of violence) at a

treatment facility demonstrates that the 30-month aggregate

consecutive sentence is warranted.

{¶34} Accordingly, based upon the foregoing reasons, we affirm

the trial court’s judgment.

JUDGMENT AFFIRMED.
GALLIA, 22CA13

23
JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee
recover of appellant the 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 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 the 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 that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:___________________________
Peter B. Abele, 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.