[Cite as State v. Brodt , 2022

- Ohio

- 1528.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT A DAMS COUNTY

STATE OF OHIO

, : Case No. 21 CA 1 1 40

Plaintiff

- Appell ee , :

v. : DECISION AND JUDGMENT ENTRY MORGAN BRODT

, :

Defendant

- Appell ant

. : RELEASED 5/04/2022

________ ______________________________________________________________ APPEARANCES :
Joy L. Marshall , C olumbus

, Ohio

, for appellant.

C. David Kelley

, A dams County Prosecutor, Michele L. Harris , A dams County Special Assistant Prosecutor, West Union , Ohio

, for appe llee.

______________________________________________________________________ Hess , J.

{¶1} Morgan Brodt appeals h er conviction for attempted aggravated possession

of drugs after she pleaded guilty and was sentenced to 30 months in prison

. In h er first

assignm ent of error, Brodt contends that the t rial court erred in its consider ation of the

record and the principles and purposes of sentencing when it sentenced her. In her

second assignment of error, Brodt contends that the trial court failed to appropriately

a pply the factors of R.C. 2929.12 to her sentence. However, Brodt essentially asks this

court to independently weigh the e vidence in the record and substitute our judgment for

that of the trial court concerning the sentence that best comports with R.C. 2929 .11,

governing the purposes and principles of felony sentencing, and R.C. 2929.12, which

addresses factors to consider when imposing a sentence under R.C. 2929.11. R.C.A dams App. No. 21 CA1 1 40 2

2953.08(G)(2) does not permit us to conduct this type of review. We overrule her

assig nments of error and affirm the trial court’s judgment.

I. PROCEDURAL HISTORY

{¶2} In June 2020 , the Adams County grand jury indicted Brodt on one count of

aggravated possession of drugs, a violation of R.C. 2925.11(A), a second

- degree felony.

Brodt initially p leaded not guilty, but in J une 202 1 she entered into a plea agreement with

the state and entered a guilty plea to an amended offense of attempted aggravated

possession, a third

- degree felony

. {¶3} At the sentencing hearing, the trial court noted that it had re viewed the

presentence investigation report , which contained letters from her current employers

, her

AA sponsor

, and the Oxford House , a rehabilitation center to which Brodt had eventually

transferred without the court’s knowledge . The court noted there wa s no letter from The

Healing Place, the rehabilitation center Brodt first entered and which the court was to ld

she was during the entire pendency of the case. The court stated that there was a

presumption of prison and that Brodt had multiple cases and pre vious prison sentences

over the past 10 years for multiple drug

- related offenses , including multiple felony drug

offenses

. The court commented on the particular severity of the fac ts surrounding Brodt’s

offense, “the severity of the fact pattern in this ca se, being an overdose with a small child

in a bathroom with a tub full of water. And then the child being next to an unprecedented

amount of methamphetamine.” The court stated that Brodt’s criminal drug conduct

continued after the incident in question and up through the day before entering the

rehabilitation facility. At or near the time of this conviction, Brodt was charged in ClermontA dams App. No. 21 CA1 1 40 3

County for conveying drugs into its jail. 1 Although Brodt admitted that she had made a

terrible mistake , which could have been potentially tragic for her child , she realized when

she was arrested that she had gone far over the line. The trial court noted that even

though Brodt claimed to have realized the serious nature of the offense, she continued to

engage in drug use afte rwards, noting that despite “all this, uh, epiphanies, it never

stops?” Brodt stated that she went into drug rehabilitation in August 2020 and is learning

how to maintain her sobriety and is working at a nonprofit to help others.

{¶4} The court stated that it h ad considered the record, the oral statements, and

the presentence investigation report and considered the principles and purposes of

sentencing under R.C. 2929.11. The court also stated it considered the overriding

purposes of felony sentencing and the se riousness and recidivism factors in R.C.

2929.12. The trial court was particularly concerned with the large quantity of drugs and

troubled by the fact that Brodt packed up chocolate milk, cereal, brownies, and an iPad

with cartoons on it and put her three

- year

- old child in the same small bathroom with

fentanyl and methamphetamine, “you bring her in * * * with methamphetamine and

fentanyl large, huge amounts, any, any, which had she touched with her fin ger would

have probably killed her or touched with her t ongue absolutely would h ave killed her.” The

trial court reviewed Brodt’s lengthy criminal history. The court noted with some skepticism

that Brodt had entered a drug rehabilitation facility in August 2020, but that on the day

before entering rehabilitatio n, she shot up with heroin as “one last party.” Brodt conceded

that was what she “guessed” had happened. The trial court’s concern with the facts

surrounding Brodt’s offense was a significant factor in the trial court’s sentencing decision:

1 There appears to be a typographical error in t he sentencing transcript. Statements made by Brodt’s attorney were incorrectly attributed to the trial court.A dams App. No. 21 CA1 1 40 4

Court: * * * Th e pictures from the bathroom. * * * I’ve talked a lot for many years. I’ve warned a lot for many years that my fear was that some parent was going to leave their drugs around a nd the child was going to get ahold of them and die. * * * But I could never ima gine this scene. This scene never made sense to me to intentionally lock the child into a room with the [vo]luminous amounts of drug enticing them with things they liked, like chocolate milk, brownies, Fruit Loop cereal, iPad with cartoons, Lay’s Potato ch ips . T he child was in the re so long, they [sic] ate a bowl of cereal. While you were * * * doing drugs. The iPad was actually playing cartoons. * * * I kind of gave you the clue at the beginning, uh, there’s [a] presumption [of] prison.

T he trial court s tated it did not believe prison was going to help Brodt because she had

been sent to prison numerous times before and upon her release would relapse

.
However, the court believed that a prison term would keep Brodt , who was 24

- weeks

pregnant with her second child

, sober while incarcerated and would ensure that her

newborn would be born drug

- free.

{¶5} The trial court sentenced Brodt to a 30

- month prison term and imposed a

$2,500 fine.

II. ASSIGNMENT S OF ERROR

{¶6} Brodt presents two assignment s of error:

I. The tr ial court erred in considering the record, oral statements, victim impact statements and presentence report, as well as the principle and purposes of sentencing under Ohio Revised Code Section 2929.11(A) in its sentence of Megan Brodt for Attempted Aggrava ted Possession of a Controlled Substance, a Felony of the Third Degree.

II. The trial court failed to appropriately apply the factors of ORC §2929.12 that were present and persuasive in sentencing the Appellant.

III. LAW AND ANALYSIS

{¶7} Brodt challenge s the trial court’s decision to sentence her to prison and asks

us t o modify the sentence to community control. In her assignment s of error, which areA dams App. No. 21 CA1 1 40 5

related and will be addressed together, Brodt asserts that her sentence is not supported

by the record

, i s excessive

, and that the trial court should have imposed a term of

community control instead of a prison term.

{¶8} Citing State v. Marcum , 146 Ohio St.3d 516, 2016

- Ohio

- 1002, 59 N.E.3d

1231, Brodt asserts that we must apply the standard of review in R.C. 29 53.08(G)(2) and

conclude that her sentence must be modified because the trial court “ ignored the

overriding purposes of felony sentencing by clear and convincing evidence.” She

maintains that “By all accounts , incapacitating [Brodt] was not necessary by in carceration”

because she “was in a sober living house that appeared to offer enough incapacitation,

without placing a further burden on the state’s resources.” She contends that the trial

court “ seemed to ignore and gloss over” that she was “working two jo bs and had paid all

of her fines, making her a productive citizen.” She concedes that she is “a long standing

drug user” but argues that “drug possession is a victimless crime.” She claims “the

sentence of 30 months imprisonment is not supported by the r ecord and this court should

modify this sentence imposing a community control with drug treatment as a condition.”

{¶9} R.C. 2953.08(G)(2) provides:

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.

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 senten cing 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 follo wing:

(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 sectionA dams App. No. 21 CA1 1 40 6

2929.14 , or division (I) of section 2929.20 of the Revised Code , whichever, if any, is relevan t;

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

{¶10} In Marcum , the Supreme Court of Ohio stated:

We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.

Marcum at ¶ 23. However, the C ourt has since clarified that the statements in Marcum

at ¶ 2 3 are dicta. State v. Jones , 163 Ohio St.3d 242, 2020

- Ohio

- 6729, 169 N.E.3d 649,

¶ 27

. In Jones , t he C ourt held that R.C. 2953.08(G)(2) does not permit an appellate court

to review whether the record supports a sentence as a whole under R.C. 2929.11 and

29 29.12. Id. at ¶ 30. The C ourt stated:

Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12. In particular, R.C. 2953.08(G)(2) does not permit an appellate court to conduct a freestanding inquiry like the independent sentence evaluation this court must conduct under R.C. 2929.05(A) when reviewing a death penalty

- se ntence. See State v. Hundley

, 162 Ohio St.3d 509 , 2020

- Ohio

- 3775, 166 N.E.3d 1066 , ¶ 128 (recognizing that R.C. 2929.05(A) requires de novo review of findings and other issues within its scope).

Id. at ¶ 42 ; State v. Arbogast , 4 th Dist. Adams No. 20CA11 19, 2021

- Ohio

- 484, ¶ 7.

{¶11} Brodt asks this court to independently weigh the evidence in the record and

substitute our judgment for that of the trial court concerning the sentence that best reflects

compliance with R.C. 2929.11 , which sets forth the purposes and principles of felony

sentencing, and R.C. 2929.12, which addresses factors to be considered when imposingA dams App. No. 21 CA1 1 40 7

a sentence under R.C. 2929.11. Based on Jones , we conclude that R.C. 2953.08(G)(2)

does not permit us to conduct this type of review

. Accordingl y, we overrule Brodt’s

assignments of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.A dams App. No. 21 CA1 1 40 8

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that a ppellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the ADAMS 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 a ppellant to file with the Supreme Court of Ohio an application for a stay during the pe ndency 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 app eal 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 cer tified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ Michael D. Hess, 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.