[Cite as State v. Wiley, 2021-Ohio-1756.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

: 

: Hon. Craig R. Baldwin, P.J. 

Plaintiff-Appellee : Hon. William B. Hoffman, J. 

: Hon. Patricia A. Delaney, J. 

-vs- :

: Case No. CT2020-0044 

: 

KENNY WILEY :

: 

: 

Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County 

Court of Common Pleas, Case No. 

CR2020-0209 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: 

APPEARANCES: 

May 20, 2021 

For Plaintiff-Appellee: For Defendant-Appellant: 

RON WELCH TODD W. BARSTOW 

MUSKINGUM CO. PROSECUTOR 261 W. Johnstown Rd., Ste. 204 

TAYLOR P. BENNINGTON Columbus, OH 43230 

27 North Fifth St., P.O. Box 189 

Zanesville, OH 43701 
[Cite as State v. Wiley, 2021-Ohio-1756.]

Delaney, J.

{¶1} Appellant Kenny Wiley appeals from the September 23, 2020 Entry of the 

Muskingum County Court of Common Pleas. Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from the record of appellee’s statement at 

appellant’s change-of-plea hearing on August 17, 2020, and from the parties’ statements 

at appellant’s sentencing hearing on September 21, 2020. 

{¶3} Appellant and his wife, Jane Doe, are going through a divorce. They have 

three children together. 

{¶4} On April 20, 2020, around 8:00 p.m., Jane Doe called the Muskingum 

County Sheriff’s Department to report that appellant entered her residence without 

permission, walking in while only her 16-year-old son was home.

{¶5} Jane Doe stated she had a protection order against appellant; she and the 

three children are the listed protected persons. Appellant did not live with them and was 

not on the lease. Doe explained the protection order was issued in Washington County, 

Pennsylvania, and expired on March 14, 2020. She had a problem obtaining a timely 

new protection order in Muskingum County because of COVID-19. 

{¶6} The reporting deputy spoke with the son of appellant and Doe. The son 

said around 7:00 p.m., he heard a knock, then appellant walked in through the unlocked 

front door of the residence. The son said appellant was calm and said, “I’m here to see 

the girls.” The son replied that the girls were not home. No one opened the door to 

appellant and he was not invited into the residence. 
[Cite as State v. Wiley, 2021-Ohio-1756.]

{¶7} Appellant was charged by indictment with one count of trespass in a 

habitation pursuant to R.C. 2911.12(B), a felony of the fourth degree, and entered a plea 

of not guilty. 

{¶8} On June 10, 2020, appellant appeared before the trial court and moved for 

a bond reduction. The trial court granted the motion and modified appellant’s bond to 

“$5000 own recognizance,” with the condition that appellant have no contact with the 

victim or residence involved. 

{¶9} On July 29, 2020, the trial court issued a bench warrant for appellant’s arrest 

due to his failure to report on bond. The bench warrant was executed by the Muskingum 

County Sheriff on August 5, 2020. 

{¶10} On August 17, 2020, appellant appeared before the trial court and entered 

a plea of guilty to one count of trespass in a habitation pursuant to R.C. 2911.12(B), a 

felony of the fourth degree. The parties jointly recommended that appellant be placed on 

community control, although appellant acknowledged in writing that the recommendation 

was conditioned upon his compliance with all bond conditions and all laws pending 

sentencing. Appellant also acknowledged that the trial court was not required to follow 

the recommendation. 

{¶11} Sentencing was scheduled for September 21, 2020 and the trial court 

ordered a P.S.I. (pre-sentence investigation). 

{¶12} Appellant appeared before the trial court on September 21, 2020, and the 

trial court heard the parties’ statements, including the joint recommendation of community 

control. 
[Cite as State v. Wiley, 2021-Ohio-1756.]

{¶13} The trial court had the following conversation with appellant, in pertinent 

part: 

* * * *. 

THE COURT: Anything you’d like to say on your own behalf 

prior to sentencing? 

[APPELLANT]: No, thank you, Your Honor. 

THE COURT: I’ll note for the record we’re dealing with one 

count, trespass in a habitation, a felony of the fourth degree. There’s 

been a joint recommendation that you be placed on community 

control and no restitution is owed. 

I’ll also note I have received the presentence investigation. I

have reviewed it thoroughly. 

Looking at the criminal history, it says that there’s a felony 

pending in Guernsey County for failure to appear on a recognizance 

bond, another felony pending in Guernsey County on trespass in a 

habitation. There’s a pending felony in Noble County on 

unauthorized use of property of another victim. 

It looks like there’s a warrant issued out of Washington 

County, Pennsylvania, for a violation of an order and another warrant 

issued out of Washington County, Pennsylvania, for simple assault 

and harassment. Those were 2018 and 2019. 

Does all that sound accurate, Mr. Wiley? 

[APPELLANT]: Yes, sir. 
[Cite as State v. Wiley, 2021-Ohio-1756.]

* * * *. 

T. September 21, 2020, 5-6. 

{¶14} The trial court then rejected the parties’ joint recommendation and 

sentenced appellant to a prison term of 12 months. The sentencing entry states that the 

court considered the record, the P.S.I., the plea recommendation, the principles and 

purposes of sentencing pursuant to R.C. 2929.11 and the seriousness and recidivism 

factors of R.C. 2929.12. The entry states appellant was found guilty upon the sole count 

in the indictment and further: 

* * * *. 

The Court inquired of Defendant if he knew of any reason why 

judgment should not be pronounced, or if he had anything further to 

say; the Defendant made no statement. 

The Court made Judicial Findings that the Defendant has 

pending felony charges in Guernsey and Noble County, Ohio, and 

has an active warrant out of Washington County, Pennsylvania. 

* * * *. 

{¶15} This Court ordered the P.S.I. to be made part of the record under seal and 

have reviewed it with the appellate record. The P.S.I. notes, e.g., that as of September 

9, 2020, appellant had three pending felonies: the instant case [Guernsey County Court 

of Common Pleas case number 20CR0088], failure to appear on a recognizance bond, a 

felony of the fourth degree [Guernsey County Court of Common Pleas case number 

20CR0199], and unauthorized use of property with an elderly victim, a felony of the fifth 

degree [Noble County Court of Common Pleas case number CR219-2069]. Appellant 
[Cite as State v. Wiley, 2021-Ohio-1756.]

also had two pending misdemeanor warrants from Washington County, PA; one case is 

for “simple assault” and “harassment” and the second is for “violation of order.” 

{¶16} Appellant also had a prior felony conviction in Guernsey County of 

possession of crack cocaine. 

{¶17} Appellant now appeals from the trial court’s Entry of September 23, 2020. 

{¶18} Appellant raises one assignment of error: 

ASSIGNMENT OF ERROR

{¶19} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO 

MAKE THE REQUIRED STATUTORY FINDINGS BEFORE SENTENCING APPELLANT 

TO A PRISON TERM FOR A FELONY OF THE FOURTH DEGREE.” 

ANALYSIS

{¶20} Appellant argues the trial court erred in rejecting the agreed-upon sentence 

of community control and imposing a prison term. We disagree. 

{¶21} Appellant argues the trial court was required to sentence him to a term of 

community control pursuant to R.C. 2929.13(B)(1), which states in pertinent part: 

(B)(1)(a) Except as provided in division (B)(1)(b) of this 

section, if an offender is convicted of or pleads guilty to a felony of 

the fourth or fifth degree that is not an offense of violence * * *, the 

court shall sentence the offender to a community control sanction or 

combination of community control sanctions if all of the following 

apply: 

(i) The offender previously has not been convicted of or 

pleaded guilty to a felony offense.
[Cite as State v. Wiley, 2021-Ohio-1756.]

(ii) The most serious charge against the offender at the time 

of sentencing is a felony of the fourth or fifth degree. 

(iii) The offender previously has not been convicted of or 

pleaded guilty to a misdemeanor offense of violence that the offender 

committed within two years prior to the offense for which sentence is 

being imposed. 

(b) The court has discretion to impose a prison term upon an 

offender who is convicted of or pleads guilty to a felony of the fourth 

or fifth degree that is not an offense of violence * * * if any of the 

following apply: 

(i) The offender committed the offense while having a firearm 

on or about the offender's person or under the offender's control. 

(ii) If the offense is a qualifying assault offense, the offender 

caused serious physical harm to another person while committing

the offense, and, if the offense is not a qualifying assault offense, the 

offender caused physical harm to another person while committing 

the offense. 

(iii) The offender violated a term of the conditions of bond 

as set by the court.

(iv) The offense is a sex offense that is a fourth or fifth degree 

felony violation of any provision of Chapter 2907. of the Revised 

Code. 
[Cite as State v. Wiley, 2021-Ohio-1756.]

(v) In committing the offense, the offender attempted to cause 

or made an actual threat of physical harm to a person with a deadly 

weapon. 

(vi) In committing the offense, the offender attempted to cause

or made an actual threat of physical harm to a person, and the 

offender previously was convicted of an offense that caused physical 

harm to a person. 

(vii) The offender held a public office or position of trust, and 

the offense related to that office or position; the offender's position 

obliged the offender to prevent the offense or to bring those 

committing it to justice; or the offender's professional reputation or 

position facilitated the offense or was likely to influence the future 

conduct of others. 

(viii) The offender committed the offense for hire or as part of 

an organized criminal activity. 

(ix) The offender at the time of the offense was serving, or the 

offender previously had served, a prison term. 

(x) The offender committed the offense while under a 

community control sanction, while on probation, or while 

released from custody on a bond or personal recognizance.

(Emphasis added). 

{¶22} First, we note appellant was not entitled to a community-control term 

because he has a prior felony conviction: possession of crack cocaine, a felony of the fifth 
[Cite as State v. Wiley, 2021-Ohio-1756.]

degree, Guernsey County Court of Common Pleas case number 06CR0097. P.S.I.; R.C. 

2929.13(B)(1)(a)(i). 

{¶23} Second, the trial court has discretion to impose a prison term upon a 

conviction for a fourth-degree felony if the offender committed the offense while on bond, 

and appellant was released upon a personal recognizance bond in the Noble County 

case. R.C. 2929.13(B)(1)(b)(x). An OR bond was filed on September 2, 2019 in Noble 

County Court of Common Pleas case number CR219-2069. 

{¶24} Finally, although the trial court did not cite this element as a factor in 

sentencing, appellant violated a condition of his bond in the instant case by failing to 

appear. R.C. 2929.13(B)(1)(b)(iii). 

{¶25} The pertinent portions of R.C. 2929.13(B)(1) are therefore not in appellant’s 

favor. We review felony sentences using the standard of review set forth in R.C. 2953.08. 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22; State v. 

Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. R.C. 2953.08(G)(2) 

provides we may either increase, reduce, modify, or vacate a sentence and remand for 

resentencing where we clearly and convincingly find either the record does not support 

the sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), 

or 2929.20(I), or the sentence is otherwise contrary to law. State v. Reed, 2017-Ohio8237, 98 N.E.3d 1303, ¶ 7 (5th Dist.). 

{¶26} In the instant case, the record supports the findings of the trial court, 

appellant was not entitled to a sentence of community service, and the trial court was 

within its discretion to impose a prison term. We therefore disagree with appellant and 

find the sentence is not contrary to law. 
[Cite as State v. Wiley, 2021-Ohio-1756.]

{¶27} Appellant’s sole assignment of error is overruled. 

CONCLUSION

{¶28} The sole assignment of error is overruled and the judgment of the 

Muskingum County Court of Common Pleas is affirmed. 

By: Delaney, J., 

Baldwin, P.J. and 

Hoffman, J., concur.