State v. Chuppa

[Cite as State v. Chuppa, 

.]



                 IN THE COURT OF APPEALS OF OHIO
                           ELEVENTH APPELLATE DISTRICT
                               ASHTABULA COUNTY

STATE OF OHIO,                                  CASE NO. 2022-A-0044

                 Plaintiff-Appellee,
                                                Criminal Appeal from the
        - vs -                                  Court of Common Pleas

LINDA CHUPPA,
                                                Trial Court No. 2020 CR 00473
                 Defendant-Appellant.


                                             OPINION

                                    Decided: December 7, 2022
                                        Judgment: Affirmed


Colleen M. O’Toole, Ashtabula County Prosecutor, and Jessica Fross, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Eric D. Hall, P.O. Box 232, Medina, OH 44258 (For Defendant-Appellant).


FREDERICK D. NELSON, J., Ret., Tenth Appellate District, sitting by assignment.

        {¶1}     Defendant-Appellant, Linda Chuppa, appeals from the nine-month

sentence of incarceration imposed by the Ashtabula County Court of Common Pleas after

her conviction for the third-degree felony of aggravated possession of drugs. She does

not argue that her sentence was contrary to law, nor more specifically does she contest

the order that (despite the statutory presumption of prison) she serve that time in the local

jail. (The state doesn't quarrel with those points either. But compare R.C. 2929.34(B)(2),

which with its cross-reference to R.C. 5120.161 does not appear to include third-degree

felonies as among those for which prison time might potentially be served in local jail.)
Rather, she contends only that the factual record in the case fails to support the findings

that the trial court made in justifying a term of nine-months’ duration. Because that

particular proposition is without merit, and with Ms. Chuppa’s term of confinement about

to expire, we will affirm the judgment of the trial court.

       {¶2}   The trial court, after a bench trial, found Ms. Chuppa guilty of violating R.C.

2925.11(A) in combination with R.C. 2925.11(C)(1)(b) as a third-degree felony given her

possession of methamphetamine in bulk amount. “[T]here is a presumption for a prison

term for [that] offense,” R.C. 2925.11(C)(1)(b), and the potential range for such

incarceration runs between specified periods of time ranging from nine to thirty-six

months. R.C. 2929.14(A)(3)(b).

       {¶3}   At the sentencing hearing, the trial court noted that it had reviewed the pre-

sentence investigation report for Ms. Chuppa, see April 26, 2022 Tr. at 5, and heard

defense counsel’s arguments that after having displayed what the report indicated was

(in defense counsel’s words) “a poor attitude and behavior that wouldn’t be in accordance

with probation,” Ms. Chuppa "finally opened up to the daily methamphetamine use,” id. at

7; the defense requested community control with credit for jail time served. Id. at 8. See

also id. at 9 (defense counsel acknowledged that Ms. Chuppa had “squandered” an

opportunity for treatment in lieu of conviction, and urged that “she’s thinking more clearly

now because she hasn’t been able to use [methamphetamines] while in jail”).

       {¶4}   The trial court observed without contradiction that “[t]o say that [Ms.Chuppa]

has been uncooperative and/or has failed to accept responsibility for her conduct would

be an understatement.” Id. at 11. The presentence investigation report reflected Ms.

Chuppa’s bad attitude, the trial court found, including her unwillingness to submit to drug

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screens while supervised and her “refusals to otherwise cooperate.” Id. at 11-12. The

drug issue was serious: She had been found in possession of “ten different substances

containing methamphetamine” when she was arrested. Id. at 12. Unfortunately, the

probation department did not “feel there's anything they can offer her”; it found her not

amenable to supervision and recommended straight incarceration “because she has

demonstrated such a complete unwillingness to cooperate, receive the help that’s been

made available to her, and to in any manner accept responsibility.” Id. at 13, 12.

       {¶5}    The trial court agreed with the probation department’s assessment. Having

considered the record and the purposes of felony sentencing while using the minimum

sanctions to accomplish those purposes without imposing undue governmental burdens,

the trial court said, id. at 13, it was tempted to impose the maximum, 36-month prison

sentence and declined to do so only because Ms. Chuppa had a “limited criminal history.”

Id. at 14.    The trial court sentenced her to nine months in jail despite the “limited

programming available there.” Id. The trial court did not explain why local jail rather than

state prison was the appropriate place for incarceration.

       {¶6}    In its May 2, 2022 Judgment Entry of Sentence, the trial court recorded that

it had considered “the purposes and principles of sentencing under RC 2929.11, [and] the

seriousness and recidivism factors * * * pursuant to RC 2929.12.” That entry recited that

Ms. Chuppa “is not amenable to an available combination of community control sanctions

because of [her] poor attitude; [she] was uncooperative with Adult Probation to obtain a

presentence investigation; [she] failed to appear for a prior sentencing hearing [in this

matter].” The entry further specified “that a jail sentence is consistent with the purposes

and principles of sentencing under RC 2929.11 because a jail sentence is commensurate

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with the seriousness of the offender’s conduct * * * * [,]js reasonably necessary to deter

the offender in order to protect the public from future crime, and * * * would not place an

unnecessary burden on governmental resources.” The entry granted Ms. Chuppa credit

for 31-days time served against her nine-month sentence to the Astabula County Jail. Id.

        {¶7}   On appeal, Ms. Chuppa advances a single assignment of error: “The trial

court erred when it sentenced appellant to nine months incarceration when clearly and

convincingly the record fai[l]ed to support its findings.” Appellant’s brief at 3. Her entire

argument in support of that assignment is found in two sentences: “Although Appellant's

offense was serious, nothing in the record demonstrates that Appellant would commit

similar offenses after being released from incarceration. The record in this case clearly

fails to support the trial court’s decision to impose a nine month sentence of incarceration.”

Id. The state responds, urging that we affirm the trial court’s judgment. Appellee’s Brief

at 5.

        {¶8}   We read Ms. Chuppa’s argument, with its reference to what she sees as a

dearth of evidence regarding a potential for recidivism, to be that the record does not

support the trial court’s recidivism finding under R.C. 2929.12. Compare R.C. 2929.12(D)

and (E) (specifying recidivism factors). But the Supreme Court of Ohio has been clear

that a court of appeals is without statutory warrant “to modify or vacate a sentence based

on its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12.” State v. Jones, 

, 

, 

, ¶ 39.

        {¶9}   “Although a court imposing a felony sentence must consider the purposes

of felony sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12,

‘neither R.C. 2929.11 nor 2929.12 requires [the] court to make any specific factual

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findings on the record.’” State v. Bryant, 

, 

,

quoting Jones, at ¶20. Here, Ms. Chuppa does not argue that the trial court failed to

consider the required sentencing factors or to state its findings on the record: She urges

only that the trial court lacked sufficient facts of record to reach the conclusions it did “to

impose a nine month sentence of incarceration.” Appellant’s brief at 3. Even were we

inclined to agree, it would not be our province here to reweigh the facts and “substitute

[our] judgment for that of the trial court regarding the appropriate sentence[] * * * under

R.C. 2929.11 and 2929.12.” Jones at ¶41; see also id. at ¶32 (explaining that “an

appellate court’s determination that the record does not support a sentence does not

equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is

used in R.C. 2953.08(G)(2)(b)”). Yet that is all that Ms. Chuppa asks us to do.

       {¶10} Ms. Chuppa does not elect to argue that the findings the trial court made do

not support the sentence it imposed or that the sentence itself was contrary to law. Under

these circumstances, we overrule Ms. Chuppa’s lone and very limited assignment of

error. We therefore affirm the judgment of the Ashtabula County Court of Common Pleas.



JOHN J. EKLUND, P.J.,

MATT LYNCH, J.,

concur.




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