[Cite as State v. Brovey , 2020-Ohio-964.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

AMANDA BROVEY, Appellant. :

:

:

:

:

: CASE NO. CA2019-05-084

O P I N I O N

3/16/2020

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2018-02-0189

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Rodriguez & Porter, Ltd., Paul W. Shonk, 5103 Pleasant Avenue, Fairfield, Ohio 45014, for appellant

RINGLAND, J. {¶ 1} Appellant, Amanda Brovey, appeals the sentence imposed by the B utler County Court of Common Pleas. For the reasons detailed below, we affirm. {¶ 2} On March 28, 2018, Brovey was indicted on four counts for aggra vated possession of drugs, possessing drug abuse instruments, illegal use or possession of drug instruments, and possession of heroin.Butler CA2019-05-084

- 2 - {¶ 3} On May 17, 2018, Brovey moved for intervention in lieu of convi ction ("ILC") pursuant to R.C. 2951.041. Following a hearing, the trial cour t found that Brovey was eligible for ILC and granted her request. Pursuant to a plea a greement, Brovey pled guilty to counts one and four for aggravated possession of drugs and p ossession of heroin. The state dismissed the remaining counts. {¶ 4} The trial court accepted Brovey's guilty plea and stayed all cr iminal proceedings pending compliance with the terms of her interventi on plan. The trial court ordered Brovey to comply with the terms and conditions imposed on her by R.C. 2951. 041 and ordered that she be placed under the supervision of the pro bation department. The trial court also informed Brovey that she was required to engag e in outpatient substance abuse treatment, obtain her GED, and obtain and maintain full-t ime employment. The trial court then released Brovey from the Butler County Jail and orde red her to immediately report to the probation department. {¶ 5} Brovey did not report to the probation department in compliance with the terms of her ILC. The probation department subsequently filed notices of violations, alleging that Brovey violated the terms of her ILC because she "failed t o report to the probation department upon her release from the Butler County Jail on 6/22 /2018 to sign the General Conditions of Supervision." {¶ 6} The trial court held a revocation hearing during which Brovey a dmitted to the violation. The trial court then revoked Brovey's ILC and journ alized a judgment of conviction entry. Following the sentencing hearing, the trial court impos ed prison terms of seven months on count one and six months on count four, consecutively , for a total aggregate prison term of 13 months. Brovey now appeals, raising three as signments of error for

review. {¶ 7} Assignment of Error No. 1:Butler CA2019-05-084

- 3 - {¶ 8} THE TRIAL COURT ERRED BY IMPOSING MORE THAN NINETY DAYS

FOR MS. BROVEY'S VIOLATION OF HER SUPERVISION CONDITIONS BECAUS E SAID

VIOLATION WAS TECHNICAL IN NATURE. {¶ 9} In her first assignment of error, Brovey argues that she commit ted only a "technical violation" of her supervision conditions and can the refore only be sentenced to a maximum prison term of 90 days in accordance with R.C. 2929.15( B)(1)(c)(i). Brovey's argument is without merit. {¶ 10} In this case, Brovey was subject to conditions because she was on ILC, not community control. The two are not synonymous. State v. Trimpe , 6th Dist. Wood No. WD18-048, 2019-Ohio-3017, ¶ 24; State v. Grace , 6th Dist. Sandusky No. S-18-044, 2019- Ohio-3812, ¶ 4, fn. 1. Under R.C. 2929.01(DD) community contro l is a "sanction" that exists as a penalty or punishment for an offense. To the contrary, IL C is not punishment, it is "an opportunity for first time offenders to receive help with their dependency without the ramifications of a felony conviction." State v. Ingram , 8th Dist. Cuyahoga No. 84925, 2005- Ohio-1967, ¶ 13. {¶ 11} Unlike community control, ILC is governed entirely by R.C. 2951 .041, which lays out a procedure by which the trial court stays all crimina l proceedings, orders the offender to comply with the terms and conditions of a specifica lly-tailored "intervention plan," and places the offender under the general control and supervisi on of the county probation department or another comparable agency during the duration of the intervention plan. {¶ 12} Pursuant to R.C. 2951.041(D), an intervention plan may include "terms and conditions similar to community control sanctions," and the off ender is placed under the supervision of the probation department of the appropriate coun ty "as if the offender was subject to a community control sanction." However, the offende r is not actually "subject to a community control sanction" during intervention. Trimpe at ¶ 24.Butler CA2019-05-084

- 4 - {¶ 13} Since Brovey was subject to conditions as a result of her ILC, the 90-day maximum term for a technical violation of community control und er R.C. 2929.15(B)(1)(c)(i) is not applicable. Thus, this court need not consider whether Brovey's violation was a "technical violation." Rather, since Brovey violated the terms of her ILC, the trial court could sentence Brovey to an appropriate sanction under the law. See R.C. 2951.041(F). Brovey's first assignment of error is overruled. {¶ 14} Assignment of Error No. 2: {¶ 15} THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A PRISON

TERM ON MS. BROVEY WITHOUT CONSIDERING WHETHER SHE WAS AMENABLE

TO AVAILABLE COMMUNITY CONTROL SANCTIONS OR A MORE RESTRICTIVE ILC

SANCTION. {¶ 16} Assignment of Error No. 3: {¶ 17} THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES

BECAUSE ITS FINDING IN SUPPORT OF CONSECUTIVE SENTENCING HAD NO

SUPPORT IN THE RECORD. {¶ 18} In her second assignment of error, Brovey alleges the trial cou rt failed to consider less restrictive sanctions, such as whether she was am enable to community control. In her third assignment of error, Brovey contests the imposition of consecutive prison terms. Brovey's assignments of error are without merit. {¶ 19} This court reviews felony sentences pursuant to the standard of review set forth in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is clearly and convincingly contrary to law. State v. Julious , 12th Dist. Butler No. CA2015-12- 224, 2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appella te court may modify or vacate a sentence only if, by clear and convincing evidence, "the reco rd does not support the trial court's findings under relevant statutes or that the sentence i s otherwise contrary to law.Butler CA2019-05-084

- 5 - State v. Harp , 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. {¶ 20} A sentence is not clearly and convincingly contrary to law wher e the trial court considers the purposes and principles of sentencing as set fort h in R.C. 2929.11, as well

as the seriousness and recidivism factors listed in R.C. 2929.1 2, and sentences a defendant within the permissible statutory range. State v. Brandenburg , 12th Dist. Butler Nos. CA2014-10-201 and CA2014-10-202, 2016-Ohio-4918, ¶ 9. The fact ors set forth in R.C. 2929.12 are nonexclusive, and R.C. 2929.12 explicitly permits a trial court to consider any relevant factors in imposing a sentence. State v. Stamper , 12th Dist. Butler No. CA2012- 08-166, 2013-Ohio-5669, ¶ 11. According to R.C. 2929.12(B)(2), conduct may be considered more serious when "[t]he victim of the offense suffe red serious physical, psychological, or economic harm as a result of the offense." State v. Rich , 12th Dist. Butler No. CA2014-01-002, 2014-Ohio-4623, ¶ 18. {¶ 21} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step analysis and make certain findings before imposing consecutive sentences. State v. Dillon , 12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. Firs t, the trial court must find that the consecutive sentence is necessary to protect the publi c from future crime or to punish the offender. R.C. 2929.14(C)(4). Id . Second, the trial court must find that consecutive sentences are not disproportionate to the seriousne ss of the offender's conduct and to the danger the offender poses to the public. Id . Third, the trial court must find that one of the following applies: (a) The offender committed one or more of the multiple offense s 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 pa rt of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great orButler CA2019-05-084

- 6 - 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 th at consecutive sentences are necessary to protect the public from future crime by the offender. R.C. 2929.14(C)(4)(a)-(c). {¶ 22} "A trial court satisfies the statutory requirement of making th e required findings when the record reflects that the court engaged in the required analysis and selected the appropriate statutory criteria." State v. Setty , 12th Dist. Clermont Nos. CA2013-06-049 and CA2013-06-050, 2014-Ohio-2340, ¶ 113. In imposing consecutive sentences, the trial court is not required to provide a word-for-word recitation of the la nguage of the statute or articulate reasons supporting its findings. Id . Nevertheless, the record must reflect that the trial court engaged in the required sentencing analysis and mad e the requisite findings. Id

. The court's findings must thereafter be incorporated into its s entencing entry. State v.

Ahlers , 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 10. {¶ 23} On appeal, Brovey argues that the trial court erred by imposing prison terms when she was amenable to other sanctions, such as continuing IL C, to allow her to complete inpatient treatment. In addition, Brovey maintains th at the prison terms should not have been ordered consecutive due to her lack of a prior cr iminal record and that consecutive sentences are not necessary to protect the public f rom future crime by the

offender. {¶ 24} After reviewing the record, we find that the trial court did no t err in its sentencing decision, as Brovey's sentence was not contrary to l aw and was supported by the record. As previously noted, Brovey was found guilty of ag gravated possession of drugs and possession of heroin, both fifth-degree felonies. Though, she was initially granted ILC, she subsequently violated the terms of her ILC by refusing to r eport to the probationButler CA2019-05-084

- 7 - department in violation of the trial court's order. As Brovey failed to comply with the terms and conditions of her ILC, the trial court could enter a findin g of guilty and impose appropriate sanctions. R.C. 2951.041(F). A fifth-degree felon y is punishable by a definite prison term of six, seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). Therefore, the trial court's imposition of six-month and sevent h-month prison terms were within the permissible sentencing range. {¶ 25} The trial court also considered the purposes and principles of sentencing as required by R.C. 2929.11 and R.C. 2929.12 and found that Brovey was not amenable to community control. As stated on the record, Brovey completely failed to abide by the terms of her ILC. In this case, Brovey failed to report to the proba tion department when she was released from jail. Furthermore, the trial court recounted pri or instances whereby Brovey failed to abide by the trial court's orders while on bond. Dur ing one such incident, Brovey tested positive for drugs, attempted to strike a probation depa rtment officer, and then ran out the back door of the probation department. I see. Well, you failed to show up for pre-trial on one or two occasions. Apparently there was an incident where you were going to test - - or tested positive for * * * [a] pre-trial of ficer, you attempted to strike her and run out the back door of the probation department. All that would lead the Court to believe that you're really not in search of treatment. And when I sentence you * * * to go to treatment and go to probation, you don't even make it two blocks down the street. Thus, contrary to Brovey's argument otherwise, we find the tria l court sentencing decision is fully supported by the record. {¶ 26} As it relates to consecutive sentencing, we find the trial cour t made the findings required by R.C. 2929.14(C)(4) when it ordered Brovey' s sentences be served consecutively. In pronouncing its sentencing decision, the tri al court found that consecutive sentences are necessary to protect the public from future crime and necessary to punishButler CA2019-05-084

- 8 - Brovey. The trial court also found that Brovey's history of cr iminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime. While Brovey did not have a lengthy criminal history, the trial court 's findings are supported by the record, as Brovey failed to cooperate with the trial court's or ders, continued abusing drugs, and refused to even report to the probation department when she was given an opportunity on ILC. As a result, we find the trial court did not err by im posing consecutive sentences. {¶ 27} Following review, we find the trial court did not err in its se ntencing decision, as Brovey's sentence was not contrary to law and was supported by the record. Furthermore, the record reflects that the trial court made the findings required by R.C. 2929.14(C)(4) when it ordered Brovey's sentences be served cons ecutively. {¶ 28} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.