[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-Appellan t : 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 R d., St e. 204 TAYLOR P. BENNINGTON Columbus , OH 43230 27 North Fifth St., P.O. Bo x 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 o f Ohio.

FACTS AND PROCEDURAL HISTORY {¶2} The following facts are adduced from the record of appelle e’s statement at appellant’s change-of-plea hea ring 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 divo rce. They have three children together. {¶4} On April 20, 2020, around 8:00 p.m., Jane Doe called the M uskingum County Sheriff’s Department to report that appellant entered he r residence without permission, walking in while only her 16-year-old son was home. {¶5} Jane Doe stated she had a protection order against appella nt; 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 D oe. 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 an d said, “I’m here to see the girls.” The son replied that the girls were not home. No on e 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 tres pass 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 co urt and moved for a bond reduction. The trial court granted the motion and modifi ed appellant’s bond to “$5000 own recognizance,” with the condition that appellant hav e no contact with the

victim or residence involved. {¶9} On July 29, 2020, the trial court issued a bench warrant f or appellant’s arrest due to his failure to report on bond. The bench warrant was exe cuted by the Muskingum County Sheriff on August 5, 2020. {¶10} On August 17, 2020, appellant appeared before the trial c ourt and entered a plea of guilty to one count of trespass in a habitation pursu ant to R.C. 2911.12(B), a felony of the fourth degree. The parties jointly recommended th at appellant be placed on community control, although appellant acknowledged in writing t hat the recommendation was conditioned upon his compliance with all bond conditions an d all laws pending sentencing. Appellant also acknowledged that the trial court wa s not required to follow

the recommendation. {¶11} Sentencing was scheduled for September 21, 2020 and the t rial 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 appel lant, 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 recogniza nce 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 w arrant issued out of Washington County, Pennsylvania, for simple assau lt

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 recommen dation and sentenced appellant to a prison term of 12 months. The sentenci ng entry states that the court considered the record, the P.S.I., the plea recommendatio n, the principles and purposes of sentencing pursuant to R.C. 2929.11 and the serious ness and recidivism factors of R.C. 2929.12. The entry states appellant was found g uilty 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 furthe r 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 reco rd 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 r ecognizance bond, a felony of the fourth degree [Guernsey County Court of Common Pl eas case number 20CR0199], and unauthorized use of property with an elderly vic tim, a felony of the fifth degree [Noble County Court of Common Pleas case number CR219-20 69]. Appellant[Cite as State v. Wiley , 2021-Ohio-1756.]

also had two pending misdemeanor warrants from Washington Count y, PA; one case is for “simple assault” and “harassment” and the second is for “vi olation 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 Sep tember 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 APPELLAN T

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

ANALYSIS {¶20} Appellant argues the trial court erred in rejecting the a greed-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 f elony of the fourth or fifth degree that is not an offense of violence * * *, the court shall sentence the offender to a community control sancti on 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 of fender committed within two years prior to the offense for which sente nce 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 th e 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 contr ol. (ii) If the offense is a qualifying assault offense, the offend er caused serious physical harm to another person while committing the offense, and, if the offense is not a qualifying assault of fense, the offender caused physical harm to another person while committin g 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 deg ree felony violation of any provision of Chapter 2907. of the Revis ed

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 de adly

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 phy sical harm to a person. (vii) The offender held a public office or position of trust, a nd 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 reputa tion 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 o f an organized criminal activity. (ix) The offender at the time of the offense was serving, or th e 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 c ocaine, a felony of the fifth[Cite as State v. Wiley , 2021-Ohio-1756.]

degree, Guernsey County Court of Common Pleas case number 06CR0 097. 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 appe llant was released upon a pe rsonal recogniz ance bond in the Noble County case. R.C. 2929.13(B)(1)(b)(x). An OR bond was filed on Septemb er 2, 2019 in Noble County Court of Common Pleas case number CR219-2069. {¶24} Finally, although the trial court did not cite this eleme nt as a factor in sentencing, appellant violated a condition of his bond in the i nstant 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 therefor e 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. 2 953.08(G)(2) provides we may either increase, reduce, modify, or vacate a se ntence 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), 2 929.14(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 dis agree 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 judgmen t of the Muskingum County Court of Common Pleas is affirmed. By: Delaney, J., Baldwin, P.J. and Hoffman, J., concur.