State v. Elliston ( 2014 )

[Cite as State v. Elliston, 2014-Ohio-5628.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-14-18
v.
LARRY B. ELLISTON, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Trial Court No. 13CR000311
Judgment Affirmed
Date of Decision: December 22, 2014
APPEARANCES:
Scott A. Kelly for Appellant
Timothy S. Sell for Appellee
Case No. 17-14-18
PRESTON, J.
{¶1} Defendant-appellant, Larry B. Elliston (“Elliston”), appeals the June
2, 2014 judgment entry of sentence of the Shelby County Court of Common Pleas.
For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On November 14, 2013, the Shelby County Grand Jury indicted
Elliston on five counts: Count One of robbery in violation of R.C. 2911.02(A)(2),
a second-degree felony; Counts Two and Four of trafficking in heroin in violation
of R.C. 2925.03(A)(1), (C)(6), fifth-degree felonies; and Counts Three and Five of
trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6), fourth-degree
felonies. (Doc. No. 1).
{¶3} On November 19, 2013, Elliston appeared for arraignment and entered
pleas of not guilty. (Doc. No. 6).
{¶4} On April 15, 2014, Elliston withdrew his pleas of not guilty and
entered guilty pleas, under a written plea agreement, to Count One, amended to
attempted robbery in violation of R.C. 2323.02 and 2911.02, a third-degree felony,
and Count Two. (Doc. No. 83); (Apr. 15, 2014 Tr. at 3-4, 13). In exchange for his
change of plea, the State agreed to dismiss Counts Three, Four, and Five and
remain silent at sentencing. (Id.); (Id. at 4). The trial court accepted Elliston’s
guilty pleas, found him guilty on Count One, as amended, and Count Two,
-2-
Case No. 17-14-18
dismissed Counts Three, Four, and Five, and ordered a presentence investigation
(“PSI”). (Apr. 15, 2014 JE, Doc. No. 84); (Apr. 15, 2014 Tr. at 13).
{¶5} On May 29, 2014, the trial court sentenced Elliston to 36 months in
prison on Count One and 11 months in prison on Count Two and ordered that
Elliston serve the terms consecutively for an aggregate sentence of 47 months.
(Doc. No. 94); (May 29, 2014 Tr. at 7). The trial court further ordered that
Elliston serve the 47-month term of imprisonment consecutive to his 10-month
term of imprisonment in another Shelby County, Ohio case. (May 29, 2014 Tr. at
7-8).
{¶6} On June 2, 2014, the trial court filed its judgment entry of sentence.
(June 2, 2014 JE, Doc. No. 98).
{¶7} On June 27, 2014, Elliston filed his notice of appeal. (Doc. No. 107).
He raises one assignment of error for our review.
Assignment of Error
The court erred by not making certain specific findings in
accordance with O.R.C. § 2929.14(C)(4) and thus the imposition
of prison terms that run consecutively is improper.
{¶8} In his assignment of error, Elliston argues that the trial court failed to
make the necessary findings under R.C. 2929.14(C)(4) to impose consecutive
sentences.
-3-
Case No. 17-14-18
{¶9} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-
Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth
under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed
under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v.
Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v.
Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19, citing
R.C. 2953.08(G).
{¶10} Clear and convincing evidence is that “which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus; State v. Boshko, 139 Ohio App. 3d 827, 835 (12th Dist.2000). An
appellate court should not, however, substitute its judgment for that of the trial
court because the trial court is “‘clearly in the better position to judge the
defendant’s dangerousness and to ascertain the effect of the crimes on the
victims.’” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,
quoting State v. Jones, 93 Ohio St. 3d 391, 400 (2001).
-4-
Case No. 17-14-18
{¶11} “Except as provided in * * * division (C) of section 2929.14, * * * a
prison term, jail term, or sentence of imprisonment shall be served concurrently
with any other prison term, jail term, or sentence of imprisonment imposed by a
court of this state, another state, or the United States.” R.C. 2929.41(A). R.C.
2929.14(C) provides:
(4) * * * [T]he court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and to the danger the
offender poses to the public, and if the court also finds any of the
following:
(a) The offender committed one or more of the multiple offenses
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 part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that
-5-
Case No. 17-14-18
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 that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶12} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.
{¶13} The trial court must state the required findings at the sentencing
hearing prior to imposing consecutive sentences and incorporate those findings
into its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-
Ohio-4140, ¶ 50, citing State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶
29. A trial court “has no obligation to state reasons to support its findings” and is
not “required to give a talismanic incantation of the words of the statute, provided
-6-
Case No. 17-14-18
that the necessary findings can be found in the record and are incorporated into the
sentencing entry.” Bonnell at ¶ 37.
{¶14} The trial court made the three statutorily required findings before
imposing consecutive sentences at the sentencing hearing and incorporated those
findings into its sentencing entry. Specifically, at the sentencing hearing, the trial
court said:
The Court also has considered and finds that consecutive sentencing
is necessary to protect the public from future crime or to punish you,
and that consecutive sentencing is not disproportionate to the
seriousness of your conduct and to the danger that you pose to the
public. The Court also finds that your history of criminal conduct
demonstrates that consecutive sentencing is necessary to protect the
public from future crimes by you.
(May 29, 2014 Tr. at 7). The trial court incorporated those findings into its
sentencing entry by reciting the language of the statute. (See June 2, 2014 JE,
Doc. No. 98).
{¶15} However, Elliston argues that the trial court’s imposition of
consecutive sentences was improper because its sentencing entry “contains a mere
copy and paste of the statute” and does not “articulate the specific reasoning
-7-
Case No. 17-14-18
required by the statute.” (Appellant’s Brief at 3). Elliston’s arguments are
erroneous for two reasons.
{¶16} First, a trial court is not required to give a talismanic incarnation of
the words of the statute, and an order of consecutive sentences will be upheld if we
can discern that the trial court engaged in the correct analysis. Sharp at ¶ 50,
citing Bonnell at ¶ 29. Because the trial court recited the exact language of R.C.
2929.14(C)(4) at the sentencing hearing and duplicated the exact language of R.C.
2929.14(C)(4) in its sentencing entry, we are able to discern that the trial court
engaged in the correct analysis. In addition, this court previously determined that
a trial court’s exact recitation of the statutory language of R.C. 2929.14(C)(4) on
the record satisfies the requirement that it make the requisite findings when
ordering consecutive sentences. State v. Upkins, 3d Dist. Shelby No. 17-13-02,
2013-Ohio-3986, ¶ 12-16. Our determination in Upkins was relative to the first
and second requirements of R.C. 2929.14(C)(4) because the parties conceded that
the trial court properly found the third requirement. Nevertheless, our rationale in
Upkins extends to a trial court’s verbatim recitation of the statutory language in
making the required findings under the third requirement of R.C. 2929.14(C)(4).
{¶17} Second, the trial court was not required to give reasons supporting its
decision to impose consecutive sentences. See Bonnell at ¶ 27. Therefore, the
trial court’s verbatim recitation of the requisite findings under R.C. 2929.14(C)(4)
-8-
Case No. 17-14-18
in its sentencing entry does not render Elliston’s consecutive sentences contrary to
law.
{¶18} Elliston further argues that the trial court erred by failing to specify
whether the trial court was imposing consecutive sentences to protect the public or
punish the offender. In support of his argument, Elliston relies on State v.
Wilkerson to aver that this court concluded that the trial court must find that
consecutive sentences are necessary to either protect the public from future crime
or to punish the offender. 3d Dist. Logan Nos. 8-13-06 and 8-13-07, 2014-Ohio-
980, ¶ 11. Elliston’s argument and reliance on Wilkerson are misguided. Indeed,
a thorough review of Wilkerson reveals that we concluded that “the trial court
satisfied the first required finding of R.C. 2929.14(C)(4), by stating that
consecutive sentences were ‘necessary to protect the public and to adequately
punish [the offender].’” (Emphasis added.) Id. at ¶ 24.
{¶19} “[U]nder certain conditions the word, ‘or,’ in a legislative enactment
can be construed to read ‘and,’ and the word, ‘and,’ can likewise be construed to
read ‘or.’ The word, ‘and,’ or, ‘or,’ will not be given its literal meaning where
such meaning would do violence to the evident intent and purpose of the
lawmakers and the other meaning would give effect to such intent.” In re Marrs’
Estate, 158 Ohio St. 95, 99 (1952). See also R.C. 1.02(F). The use of the word
“or” in the conjunctive does not do violence to the evident intent and purpose of
-9-
Case No. 17-14-18
the lawmakers who enacted R.C. 2929.14(C)(4); rather, it gives effect to the
lawmakers’ intent and purpose. Likewise, the word “or” in R.C. 2929.14(C)(4)’s
requirement that the trial court find that consecutive sentences are “necessary to
protect the public from future crime or to punish the offender” has been applied in
the conjunctive sense. See, e.g., Bonnell at ¶ 33 (“We can discern from the trial
court’s statement that Bonnell had ‘shown very little respect for society and the
rules of society’ that it found a need to protect the public from future crime or to
punish Bonnell.”); State v. Wilcox, 2d Dist. Clark No. 2013-CA-94,
2014-Ohio-4954, ¶ 35 (concluding that the trial court’s finding that consecutive
sentences were necessary to protect the public from future crime and to punish the
defendant satisfied the first requirement of R.C. 2929.14(C)(4)); Wilkerson at ¶ 24.
Therefore, Elliston’s argument that the trial court erred by failing to apply the
statute disjunctively is meritless. Accordingly, that the trial court stated that it was
imposing consecutive sentences on Elliston to protect the public from future crime
and to punish Elliston satisfies the first required finding of R.C. 2929.14(C)(4).
{¶20} Elliston failed to clearly and convincingly demonstrate that the trial
court erred by ordering that he serve his sentences consecutively. The trial court
made the appropriate R.C. 2929.14(C)(4) findings before imposing consecutive
sentences and incorporated those findings in its sentencing entry. Therefore, the
trial court did not err in imposing consecutive sentences.
-10-
Case No. 17-14-18
{¶21} Elliston’s assignment of error is overruled.
{¶22} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr
-11-