State v. Drummond

[Cite as State v. Drummond, 2024-Ohio-81.]

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

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case Nos. 22CA11
: 23CA2
v. :
: DECISION AND
CHRISTOPHER DRUMMOND, : JUDGMENT ENTRY
:
Defendant-Appellant. : RELEASED 1/8/2024
_____________________________________________________________
APPEARANCES:

Christopher Pagan, Repper-Pagan Law, Ltd., Middletown, Ohio, for Appellant.

Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Assistant
Gallia County Prosecuting Attorney, Gallipolis, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

{¶1} Christopher Drummond, Appellant, appeals from the judgment of the

Gallia County Court of Common Pleas revoking his community control in two

cases and sentencing him to consecutive terms of imprisonment. On appeal,

Drummond contends: 1) that his underlying conviction for failure to appear was

unconstitutional because he received ineffective assistance of counsel; 2) that the

trial court erred by imposing consecutive sentences; and 3) that it is unlawful to

deny his appellate counsel a copy of his presentence investigation report to

investigate, research, and present issues for appeal. As explained further below,
Gallia App. Nos. 22CA11 and 23CA2 2

because Drummond was not granted leave to appeal his underlying conviction for

failure to appear, his first assignment of error which challenges the validity of that

conviction, has been stricken from his appellate brief. Thus, we do not consider it.

Further, because we have found no merit to his second and third assignments of

error, they are both overruled and the judgment of the trial court is affirmed.

FACTS

{¶2} On January 16, 2020, Drummond was indicted for grand theft of a

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

the case was pending, he failed to appear for a scheduled hearing. As a result, he

was charged with failure to appear, a fourth-degree felony in violation of R.C.

2937.99(A). He ultimately entered into a plea agreement with the State which

required him to plead guilty to both charges in exchange for a recommended

sentence of 24 months of community control. At the original sentencing hearing,

the trial court imposed the agreed-upon sentence of community control and it also

reserved 18 month prison terms on each of the offenses. The trial court informed

Drummond that if he violated his community control, the reserved prison terms

would be imposed consecutively for an aggregate prison sentence of 36 months.

The trial court also went on to make consecutive sentence findings, which it

included in the sentencing entry.
Gallia App. Nos. 22CA11 and 23CA2 3

{¶3} Drummond subsequently violated his community control by failing to

report to the probation department, missing or refusing drug screens, and

absconding from supervision all together. A revocation hearing was held on July

5, 2022. Drummond admitted to the charged violations and the matter was

scheduled for sentencing on July 26, 2022, at which time the trial court sentenced

Drummond to the reserved 18-month prison terms in each underlying case. The

trial court ordered these terms to be served consecutively for an aggregate prison

term of 36 months.

{¶4} Drummond immediately appealed from the judgment revoking his

community control and sentencing him to prison on the underlying grand theft of a

motor vehicle case. However, he failed to file an appeal from the judgment entry

that revoked his community control in the underlying failure to appear case. He

later moved this Court to permit him to file a delayed appeal from the revocation of

community control related to his failure to appear conviction, which we granted.

His motion for delayed appeal appears to have also sought leave to appeal from his

underlying conviction for failure to appear. After further briefing, we denied leave

to appeal the underlying conviction. These matters are now before us, having been

consolidated for purposes of appeal.

ASSIGNMENTS OF ERROR

I. DRUMMOND’S FTA CONVICTION WAS
UNCONSTITUTIONAL BECAUSE HE RECEIVED
Gallia App. Nos. 22CA11 and 23CA2 4

INEFFECTIVE ASSISTANCE OF COUNSEL [IAC] AT
THE PLEA HEARING.

II. THE TRIAL COURT ERRED BY IMPOSING
CONSECUTIVE SENTENCES.

III. IT IS UNLAWFUL TO DENY APPELLANT [SIC]
COUNSEL A COPY OF DRUMMOND’S PSI TO
INVESTIGATE, RESEARCH, AND PRESENT ISSUES
FOR APPEAL.

ASSIGNMENT OF ERROR I

{¶5} In his first assignment of error, Drummond contends that his

underlying conviction for failure to appear was unconstitutional because he

received ineffective assistance of counsel at the plea hearing. Drummond sets

forth the following “Issue presented for review”:

1. Counsel’s performance at the plea hearing was
unreasonable because the Pretrial Release Order lacked a
personal recognizance release condition and FTA liability
required violation of a recognizance condition. And Drummond
was prejudiced because there is a reasonable probability he
would have proceeded to trial when the Pretrial Release Order
lacked a recognizance condition to violate.

The State responds by arguing that “the majority of Appellant’s argument is rooted

in a misunderstanding of the actual bond form in this case controlling the failure to

appeal conviction.” The State argues that contrary to Drummond’s assertions,

“[t]he record is clear as to the issuance of an own recognizance bond and

Appellant’s subsequent failure to appear.”
Gallia App. Nos. 22CA11 and 23CA2 5

{¶6} However, because Drummond’s argument challenges his underlying

conviction for failure to appear and because we have administratively denied

Drummond’s motion for leave to file a delayed appeal from his underlying

convictions and sentences, Drummond’s first assignment of error must be stricken

from his brief. Accordingly, we will not address it.

ASSIGNMENT OF ERROR II

{¶7} In his second assignment of error, Drummond contends that the trial

court erred by imposing consecutive sentences. He raises several arguments in

support of this assignment of error, which will be set forth in more detail below.

The State, on the other hand, argues that the imposition of consecutive sentences

was appropriate in this case and that the trial court made the required findings for

imposing consecutive sentences. The State notes that Drummond not only

absconded from supervision for over a year, but that he also failed to comply with

required programming, failed to report to the probation department, and refused

urine screens.

Standard of Review

{¶8} “When reviewing felony sentences appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2).” State v. Johnson, 4th Dist.

Adams No. 19CA1082, 2019-Ohio-3479, ¶ 7, citing State v. Marcum, 146 Ohio
Gallia App. Nos. 22CA11 and 23CA2 6

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 7. R.C. 2953.08(G)(2) states as

follows:

The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing court
for resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly
and convincingly finds either of the following:

(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶9} “Clear and convincing evidence is ‘that measure or degree of proof

which * * * will produce in the mind of the trier of facts a firm belief or conviction

as to the facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123

Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

This Court has explained as follows regarding the review of felony sentences:

“ ‘[R.C. 2953.08(G)(2)] does not say that the trial judge
must have clear and convincing evidence to support its findings.
Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court's
findings. In other words, the restriction is on the appellate court,
not the trial judge. This is an extremely deferential standard of
review.’ ”
Gallia App. Nos. 22CA11 and 23CA2 7

State v. Spangler, 4th Dist. Athens No. 21CA17, 2023-Ohio-2003, ¶ 17, quoting

State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-4458, ¶ 8, in turn

quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992

N.E.2d 453, ¶ 20-21.

Consecutive Sentences

{¶10} There is a statutory presumption in favor of concurrent sentences

pursuant to R.C. 2929.41(A). In order to justify the imposition of consecutive

terms of imprisonment, “a trial court must make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its

sentencing entry, but the court has no obligation to state reasons to support its

findings.” State v. Blair, 4th Dist. Athens No. 18CA24, 2019-Ohio-2768, ¶ 52,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

syllabus. This Court explained as follows in State v. Cottrill regarding the findings

required to support the imposition of consecutive sentences:

“Under the tripartite procedure set forth in R.C.
2929.14(C)(4), prior to imposing consecutive sentences a trial
court must find that: (1) consecutive sentences are necessary to
protect the public from future crime or to punish the offender; (2)
consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to
the public; and (3) that one of three circumstances specified in
the statute applies.”

State v. Cottrill, 4th Dist. Ross No. 20CA3704, 2020-Ohio-7033, ¶ 14, quoting

State v. Baker, 4th Dist. Athens No. 13CA18, 2014-Ohio-1967, ¶ 35-36.
Gallia App. Nos. 22CA11 and 23CA2 8

{¶11} Further, as we explained in Cottrill, the three circumstances are as

follows:

“(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.

(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.”

Cottrill at ¶ 14, quoting R.C. 2929.14(C)(4)(a)-(c).

Any findings required by the applicable statutory sentencing provisions and made

by the sentencing court, such as those contained in R.C. 2929.14(C)(4)(c), must

still be supported by the record. State v. Gray, 4th Dist. Scioto No. 18CA3857,

2019-Ohio-5317, ¶ 21.

{¶12} In State v. Gwynne, -- Ohio St.3d --, 2022-Ohio-4607, -- N.E.3d --, ¶

1-2 (“Gwynne IV”), a majority of the Court held that “the findings required by R.C.

2929.14(C)(4) to impose consecutive prison sentences on an offender ‘must be

made in consideration of the aggregate term to be imposed.’ ” State v. Gwynne, --
Gallia App. Nos. 22CA11 and 23CA2 9

Ohio St.3d --, 2023-Ohio-3851, -- N.E.3d --, ¶ 2 (“Gwynne V”), citing Gwynne IV,

supra. Additionally, in Gwynne IV, the Court concluded that

appellate review of consecutive sentences did not require
appellate courts to defer to the sentencing court’s findings;
rather, this court explained that “appellate courts * * * review the
record de novo and decide whether the record clearly and
convincingly does not support the consecutive-sentence
findings.”

Gwynne V at ¶ 2, quoting Gwynne IV at ¶ 1.

However, the Supreme Court of Ohio has since departed from its prior reasoning in

Gwynne IV and has now clearly held as follows:

The plain language of R.C. 2953.08(G)(2) requires an appellate
court to defer to a trial court’s consecutive-sentence findings, and
the trial court’s findings must be upheld unless those findings are
clearly and convincingly not supported by the record.

Gwynne V at ¶ 5.

{¶13} Thus, the Court has now clearly affirmed that an appellate court’s

application of a de novo standard of review to consecutive-sentence findings “is

contrary to the plain language of R.C. 2953.08(G)(2).” Gwynne V at ¶ 16. This is

because “[d]e novo review of a trial court’s consecutive-sentence findings is

simply incongruous with the deference that the legislature stated an appellate court

must give those statutory findings in the statutory language of R.C.

2953.08(G)(2).” Id.
Gallia App. Nos. 22CA11 and 23CA2 10

Imposition of Consecutive Sentences Following
Revocation of Community Control

{¶14} In State v. Marcum, 4th Dist. Hocking No. 19CA7, 2020-Ohio-3962,

¶ 9, we explained that under appropriate circumstances, such as when a prison term

is not required, R.C. 2929.15 permits a court to impose community control

sanctions as a sentence for a felony offense. We further noted that trial courts have

three options “ ‘for punishing offenders who violate community control sanctions.’

” Id., quoting State v. McPherson, 142 Ohio App.3d 274, 278, 755 N.E.2d 426

(4th Dist. 2001) and R.C. 2929.15(B)(1)(a)-(c). The first option is to “lengthen the

term of the community control sanction[.]” Id. The second option is to “impose a

more restrictive community control sanction[.]” Id. The third option is to “impose

a prison term on the offender[.]” Id.

{¶15} In Marcum, we observed that trial courts are “not 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.” Marcum at ¶ 10, citing State v. Dusek, 4th Dist. Hocking No.

18CA18, 2019-Ohio-3477, ¶ 4 (the trial court imposed concurrent community

control sanctions but notified appellant that violating those sanctions could result

in consecutive prison terms). As we observed in Marcum, “[t]his is primarily

because ‘ “* * * when the defendant violates community control, the court imposes

an appropriate sanction for that misconduct, but not for the original or underlying
Gallia App. Nos. 22CA11 and 23CA2 11

crime.” ’ ” Marcum at fn. 1, quoting State v. Hart, 4th Dist. Athens No. 13CA8,

2014-Ohio-3733, ¶ 23, in turn quoting State v. Beverly, 4th Dist. Ross No.

01CA2603, 2002-Ohio-118, *3.

Legal Analysis

{¶16} Drummond now essentially contends on appeal that the trial court

improperly imposed consecutive sentences at his original sentencing hearing

instead of at the sentencing hearing that followed the revocation of his community

control. Drummond argues that such a determination by the trial court at the

original sentencing hearing constituted an unlawful predetermination of what his

sentence would be if he violated his community control. This argument seems to

be based upon the fact that prison terms imposed for a violation of community

control should be designed to punish the violation and not underlying criminal

offense. See Marcum, supra, at fn.1.

{¶17} Drummond raises additional arguments related to the trial court’s

imposition of consecutive sentences. Drummond argues that the trial court

purported to impose consecutive prison terms in the event of a future community

control violation while sentencing him at his original sentencing hearing and as a

result, that the trial court’s consecutive sentence analysis was obscured at the

sentencing hearing that took place after the community control revocation. More

specifically, Drummond argues that it cannot be discerned from the record whether
Gallia App. Nos. 22CA11 and 23CA2 12

the trial court believed it had the discretion regarding whether or not to impose

consecutive sentences at the time when community control was violated, or

whether it believed it had already imposed consecutive sentences when it originally

sentenced Drummond for his underlying felony convictions.

{¶18} Drummond also argues that the trial court made incomplete

consecutive sentence findings during the revocation hearing. More specifically, he

claims that the trial court added an “awaiting trial” finding in the sentencing order

that it did not make orally at the sentencing hearing. Finally, Drummond argues

that the record fails to support the trial court’s findings that a 36-month aggregate

prison term for the failure to appear and motor vehicle theft convictions were

proportionate to the seriousness of his conduct. Drummond’s argument, in part, is

based upon his claim that this conviction for failure to appear was invalid.

{¶19} A review of the record before us reveals that after Drummond

admitted to violating the terms of his community control, the trial court chose

option three, which was to impose previously reserved prison terms upon

Drummond for the community control violations. The record further reveals that

at the original sentencing hearing in 2021, the trial court not only notified

Drummond that he could be sentenced to consecutive prison terms in the event he

violated his community control, the trial court all but promised him that he would

be sentenced to consecutive prison terms for a violation of his community control.
Gallia App. Nos. 22CA11 and 23CA2 13

A review of the original sentencing hearing transcript reveals that this was due, in

part, to the fact that Drummond’s plea agreement included a sentencing

recommendation from the State, which incorporated Drummond’s agreement that

he would be sentenced to consecutive prison terms in the event of a violation of his

community control. Despite these facts, we conclude that it is clear after reviewing

the community control violation sentencing transcript that the trial court believed it

had discretion in determining how the violations should be punished.

{¶20} Although the trial court did make consecutive findings when it

originally sentenced Drummond on his underlying felony offenses, it is clear from

the record that the trial court only imposed terms of community control at that

time. In fact, this case is procedurally very similar to what occurred in State v.

Marcum, supra. In Marcum, the trial court sentenced the appellant to terms of

community control, but informed him that if he violated the terms of community

control, the reserved prison terms would be ordered to be served consecutively.

Marcum at ¶ 4. A similar situation was examined in State v. Howard, 162 Ohio

St.3d 314, 2020-Ohio-3195, 165 N.E.3d 1088. Howard was originally sentenced

to terms of community control but was notified during the original sentencing

hearing that consecutive prison terms would be imposed in the event of a violation.

Howard at ¶ 5. Despite the fact that consecutive, reserved prison terms appear to

have been “predetermined” in a sense at the original sentencing hearing, the
Gallia App. Nos. 22CA11 and 23CA2 14

Supreme Court of Ohio in Howard found that the trial court had provided the

appellant with “proper notice at his original sentencing hearing of the specific

prison terms he could face if he were to violate his community-control conditions.”

Id. at ¶ 15. Further, the Court found no error with respect to the fact that the trial

court ultimately “imposed the exact prison terms that it had provided Howard

notice of at his initial sentencing hearing.” Id. at ¶ 22. The Court found that even

though the exact prison terms were imposed, “the court performed more than an

administrative function at the revocation hearing and did not merely impose a

predetermined sentence.” Id. at ¶ 25, citing State v. Jackson, 150 Ohio St.3d 362,

2016-Ohio-8127, 81 N.E.3d 1237, ¶ 13.

{¶21} Here, it is also clear that the trial court performed more than an

administrative function of simply imposing predetermined consecutive sentences.

The hearing transcripts from the revocation hearing indicate that the trial court

engaged Drummond in conversation regarding its ability to impose consecutive

sentences, but it notified him that there were alternatives, such as extending

community control or imposing more restrictions. The court also ordered an

updated presentence investigation report and reminded Drummond prior to the

sentencing hearing that he needed “to continue to be compliant.” Unfortunately,

between the initial hearing when Drummond entered admissions to the violations
Gallia App. Nos. 22CA11 and 23CA2 15

and the sentencing hearing, Drummond had positive drug screens for

methamphetamines on three separate dates.

{¶22} The Howard Court acknowledged that making consecutive sentence

findings at an original sentencing hearing while simultaneously imposing terms of

community control was inconsistent, but ultimately reasoned as follows:

[A] finding during the initial sentencing hearing that
consecutive sentences were necessary to punish Howard or to
protect the public from future crime would be inconsistent with
the court's determination that a community-control sentence
would not demean the seriousness of Howard's offenses. But
even if the court had made the consecutive-sentences findings at
Howard's initial sentencing hearing, R.C. 2929.14(C)(4)
becomes relevant when “multiple prison terms are imposed.”
(Emphasis added.)

Howard at ¶ 26-27.

Thus, although the Howard Court ultimately reversed the appellate decision and

remanded it, the only reason it did so was because the trial court only made two of

the three necessary consecutive sentence findings at the community control

revocation sentencing hearing. Id. at ¶ 27. The Court apparently found no harm

with the fact that there was consecutive sentencing language included at the

original sentencing stage when Howard was initially sentenced to community

control.

{¶23} Based upon the foregoing reasoning, we conclude that even though

the trial court appears to have promised Drummond that consecutive prison terms
Gallia App. Nos. 22CA11 and 23CA2 16

would be imposed in the event of a community control violation and even though

the trial court made consecutive sentence findings at the time it originally

sentenced Drummond to community control, such errors were harmless as long as

the trial court made the necessary findings at the time it actually imposed

consecutive sentences for the community control violations, which it did. We find

no merit to Drummond’s argument that the trial court made incomplete

consecutive sentence findings at the revocation hearing and then added an

“awaiting-trial” finding to the revocation judgment entry.

{¶24} A review of the sentencing hearing transcript from the sentencing

hearing that took place after community control was revoked reveals that the trial

court made the necessary findings to support the imposition of consecutive

sentences. The trial court found that consecutive sentences were necessary to

protect the public from future crime and that they were not disproportionate to the

seriousness of the offender’s conduct. The trial court also found that “the

offender’s history of criminal conduct demonstrates a consecutive sentence is

necessary to protect the public from future crime.” Elsewhere during the hearing,

in discussing the seriousness and recidivism factors, the trial court found that

Drummond “was on bond in 20CR18 when he committed 20CR208.” In our view,

this finding is equivalent to finding that Drummond committed one of the offenses

while he was awaiting trial or sentencing. The trial court further found that
Gallia App. Nos. 22CA11 and 23CA2 17

Drummond had served a prior prison term, had not responded favorably to

sanctions—hence the community control violations— and that he had

demonstrated “a pattern of substance abuse and a refusal to remain in treatment.”

{¶25} In light of the foregoing, we conclude that the trial court made the

necessary findings to impose consecutive sentences and that the findings were

made orally on the record during the sentencing hearing and then properly

incorporated into the sentencing entry. Further, we cannot clearly and

convincingly conclude that the findings were not supported by the record.

Moreover, we conclude that the record clearly and convincingly supports the

imposition of the aggregate sentence that was imposed, and we find that the

aggregate sentence is necessary, proportionate and arises from sufficiently

aggravated circumstances to overcome the statutory presumption for the imposition

of concurrent sentences.

{¶26} Again, Drummond primarily bases his argument that the consecutive

sentence findings were not supported by the record upon the premise that his

underlying conviction for failure to appear was invalid. However, his argument

challenging the validity of that conviction has been stricken from his appellate

brief. Thus, that conviction stands for purposes of this appeal. As set forth above,

and in light of the facts before us, we find no merit to Drummond’s argument that

the trial court’s consecutive sentences were not supported by the record.
Gallia App. Nos. 22CA11 and 23CA2 18

Accordingly, we find no merit in any of the arguments raised under Drummond’s

second assignment of error and it is therefore overruled.

ASSIGNMENT OF ERROR III

{¶27} In his third assignment of error, Drummond contends that it is

unlawful to deny his appellate counsel a copy of his presentence investigation

report (hereinafter “PSI”) to investigate, research, and present issues for appeal.

He argues that his appellate counsel was entitled to obtain a copy of the PSI for

purposes of appeal under both R.C. 2951.03(D)(1) and R.C. 2953.08 and that

Gallia County’s policy allowing him to view the PSI in person, but denying him a

copy of the PSI, is contrary to law. He alternatively argues that if this Court rejects

his statutory claims that his appellate counsel is entitled to a copy of the PSI, that

the denial of his request for a copy of the PSI is unconstitutional under the Ohio

Equal Protection clause in that it creates a classification between defense counsel

and the trial court, probation officers, Ohio Department of Rehabilitations and

Corrections staff, law enforcement, and treatment providers, who are all entitled to

copies of the PSI under R.C. 2951.03(A)(2)-(3). He argues that such a

classification is “over-inclusive, irrational, and thereby unconstitutional.”

{¶28} The State responds by arguing that although defense counsel and

appellate counsel are entitled to review the PSI prior to sentencing and for

purposes of appeal, appellate counsel’s argument that he is entitled to a copy of the
Gallia App. Nos. 22CA11 and 23CA2 19

PSI is not supported by the law. The State further directs our attention to the fact

that appellate counsel here was not denied access to the PSI and it also references

the fact that Gallia County’s practices and procedures governing counsel’s access

to the PSI were consistent with “state-wide practices and the Ohio Revised Code.”

The State further argues there was no constitutional error in Gallia County’s

handling of the matter.

Legal Analysis

{¶29} Drummond asserts that in order to inspect the PSI in person in Gallia

County, his counsel would have had to travel two and one-half hours each way,

resulting in a five hour round trip. He further asserts that Gallia County limits

appellate representation by appointed counsel to a total of 20 hours and that

making the trip to view the PSI in person would have taken up one-fourth of the

time allotted for his case. As a result, it appears that counsel elected not to devote

the time needed for travel and instead decided to forego review of the PSI when his

request for a copy was denied.

{¶30} PSIs are addressed in both Crim.R. 32.2 and R.C. 2951.03. Crim.R.

32.2 provides as follows:

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
Gallia App. Nos. 22CA11 and 23CA2 20

misdemeanor cases the court may order a presentence
investigation before granting probation.

Likewise, R.C. 2951.03(A)(1) provides, in pertinent part, that “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.”

{¶31} R.C. 2951.03 permits access to these reports only in certain

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

reasonable time before imposing sentence, shall permit the defendant or the

defendant’s counsel to read the report.” R.C. 2951.03 further provides in section

(B)(2) as follows:

Prior 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.

{¶32} R.C. 2951.03(D)(1) addresses when a defendant and/or his counsel

may seek access to the PSI, the contents of which is “confidential information” and

“not a public record.” For example, R.C. 2951.03(D)(1) states as follows:

The court, an appellate court, authorized probation
officers, investigators, and court personnel, the defendant, the
defendant's counsel, the prosecutor who is handling the
prosecution of the case against the defendant, and authorized
personnel of an institution to which the defendant is committed
may inspect, receive copies of, retain copies of, and use a
Gallia App. Nos. 22CA11 and 23CA2 21

presentence investigation report or a written or oral summary of
a presentence investigation 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.

However, R.C. 2951.03(D)(2) further provides that

Immediately following the imposition of sentence upon the
defendant, the defendant or the defendant's counsel and the
prosecutor shall return to the court all copies of a presentence
investigation report and of any written summary of a presentence
investigation report or part of a presentence investigation report
that the court made available to the defendant or the defendant's
counsel and to the prosecutor pursuant to this section.

{¶33} In 2014, the Supreme Court of Ohio agreed to address a certified

conflict on the question of “ ‘[w]hether, pursuant to R.C. 2951.03, newly-

appointed appellate counsel is entitled to obtain a copy of the defendant’s

presentence investigation report.’ ” State v. Johnson, 138 Ohio St.3d 282, 2014-

Ohio-770, 6 N.E.3d 38, ¶ 1 (hereinafter “Johnson”), quoting State v. Johnson, 135

Ohio St.3d 1411, 2013-Ohio-1622, 986 N.E.2d 28.1

{¶34} In accepting the case, the Court stated that “the issue is whether

appellate counsel who was not trial counsel may obtain a copy of the presentence

investigation report for purposes of representing Johnson on appeal.” Johnson at ¶

7. The Court first determined that the term “ ‘defendant’s counsel’ as used in R.C.

1
The Twelfth District certified the conflict between State v. Johnson, 12th Dist. Butler No. CA2011-11-212, 2014-
Ohio-3776 and State v. Jordan, 4th Dist. Scioto No. 03CA2878, 2004-Ohio-2111.
Gallia App. Nos. 22CA11 and 23CA2 22

2951.03(D)(1) [encompassed] both a defendant’s trial counsel and a defendant’s

appellate counsel.” Johnson at ¶ 2. The Court ultimately answered the certified

question in the affirmative, but only ordered on remand that the defendant’s

appellate counsel be provided “access to the report subject to similar restrictions as

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

appellate court.” Id. at ¶ 2, 15. The Court’s full holding stated as follows:

Because of concerns for due process and the right to effective
assistance of counsel on an appeal, and because the term
“defendant's counsel” as used in R.C. 2951.03(D)(1) includes
both a defendant's trial counsel and a defendant's appellate
counsel, we answer the certified question in the affirmative and
permit newly appointed appellate counsel to have access to a
presentence investigation report upon a proper showing therefor,
subject to similar restrictions as contained in R.C. 2951.03 and
2953.08(F)(1) and any further directives of the appellate court.

Id. at ¶ 14.

{¶35} Relying on Johnson, this Court recently determined in State v.

Jackson, 4th Dist. Gallia No. 22CA8, --Ohio--, that “[u]nder the relevant statutes

and Johnson, access to the PSI is very limited.” Jackson at ¶ 45. We further

determined that “Johnson permits appellate counsel to have access to a defendant’s

PSI, but does not permit unlimited access[]” and that “[t]his court may not enlarge

the Johnson holding.” Id. We ultimately held in Jackson “that R.C. 2951.03 does

not permit appellant to retain a copy of the presentence investigation report.” Id.
Gallia App. Nos. 22CA11 and 23CA2 23

{¶36} Jackson was represented on appeal by the same counsel who

represents Drummond on appeal. Further, the arguments regarding appellate

counsel’s access to the PSI report in Jackson are identical to the arguments raised

sub judice and both cases originate from Gallia County. Thus, both involve the

same court’s practices and policies with respect to appellate counsel’s access to the

PSI report. As this Court expressed in Jackson, “we certainly understand and

appreciate appellate counsel’s frustration,” but “as an intermediate appellate court

we are obligated to follow Supreme Court of Ohio decisions.” Jackson at ¶ 45.

Accordingly, based upon the Supreme Court of Ohio’s holding in Johnson as well

as this Court’s recent reasoning in Jackson, the statutory claims raised in

Drummond’s third assignment of error are overruled.

{¶37} Further, with respect to Drummond’s alternative claims which assert

constitutional and equal protection violations, the Supreme Court of Ohio has

explained that

the question of the constitutionality of a statute must generally
be raised at the first opportunity and, in a criminal prosecution,
this means in the trial court. See State v. Woodards (1966), 6
Ohio St.2d 14, 215 N.E.2d 568 [35 O.O.2d 8]. This rule applies
both to appellant’s claim that the statute is unconstitutionally
vague on its face and to his claim that the trial court interpreted
the statute in such a way as to render the statute
unconstitutionally vague. Both claims were apparent but yet not
made at the trial court level.

State v. Awan, 22 Ohio St.3d 120, 122-123, 489 N.E.2d 277 (1986).
Gallia App. Nos. 22CA11 and 23CA2 24

Because Drummond’s trial counsel was mandated to return the copy of the PSI at

trial and because R.C. 2951.03(D)(2) did not require other personnel/departments

who had a copy of the PSI to return it, this challenge could have been raised at

trial, but it was not. See State v. Stutes, 4th Dist. Gallia Nos. 22CA6, 22CA7,

2023-Ohio-4582, ¶ 45. Because Drummond’s constitutional challenge to R.C.

2951.03 could have been raised at the trial court level, but was not, we decline to

address it for the first time on appeal.

{¶38} Having stricken Drummond’s first assignment of error, and having

found no merit to Drummond’s second and third assignments of error, the

judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.
Gallia App. Nos. 22CA11 and 23CA2 25

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
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 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 the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J., & Hess, J., Concur in Judgment and Opinion.

For the Court,
_____________________________
Jason P. Smith
Presiding 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.