State v. Doss , 2012 Ohio 5751 ( 2012 )

[Cite as State v. Doss, 2012-Ohio-5751.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 98228 and 98229
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PRESTON DOSS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-558493 and CR-559132
BEFORE: Kilbane, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEY FOR APPELLANT
Christopher R. Fortunato
13363 Madison Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Diane Russell
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} In these companion cases, defendant-appellant, Preston Doss,
appeals from the consecutive sentences imposed for his convictions for drug
possession in Case Nos. CR-558493 and CR-559132. These cases were
combined for plea proceedings and sentencing. Defendant advances identical
arguments in both appeals, so we have sua sponte consolidated them for
review.1 For the reasons set forth below, we affirm.
{¶2} On January 3, 2012, defendant was arrested after Cleveland
police found him unresponsive and lying in the street in the area of East
136th Street and Miles Avenue. He was subsequently charged in CR-559132
with drug possession and drug trafficking, both fifth degree felony offenses.
As amended, the State alleged that the offense involved less than the bulk
amount of phenylcyclohexylpiperidine or “PCP.”2
1These matters were scheduled for individual arguments.
2 The indictment initially charged defendant with possession of and
{¶3} On January 11, 2012, at approximately 9:00 a.m., Cleveland
police responded to a call regarding a domestic altercation. As they
approached the defendant, they detected the odor of PCP. At this time, he
was also alleged to be in possession of 15 to 20 individually wrapped rocks of
crack cocaine. He was subsequently charged by information in CR-558493
with fifth degree felony drug possession and drug trafficking.
{¶4} On February 22, 2012, defendant pled guilty to possession of PCP
as alleged in Count 1 of CR-559132, and guilty to possession of cocaine as set
forth in Count 2 of CR-558493. The remaining charges were dismissed.
The court then ordered that defendant be screened for eligibility for
participation in the community-based correction program. The court also
referred defendant to the court psychiatric clinic for recommendations
regarding disposition of the case.
{¶5} Following a hearing on April 4, 2012, the court outlined the
circumstances of the offenses. Defendant’s attorney acknowledged that “his
assessment record shows him to be extremely high [risk for reoffending], but
there is a recommendation * * * that he could benefit from TASC [Treatment
Alternatives to Street Crime] evaluation as well as chemical dependency
trafficking in less than five grams of cocaine, but the indictment was amended
without objection from the defense on February 22, 2012, the date of the guilty
pleas.
assessment.” The trial court then outlined the purposes and principles of
felony sentencing under Am.Sub.H.B. No. 86 (“H.B. 86”) and noted
defendant’s extensive criminal history that spanned a 20-year period,
including numerous drug offenses. The court listed a 1995 conviction for
fourth degree felony assault; a 1997 conviction for resisting arrest; a 1997
conviction for drug possession; 1998 convictions for drug possession and
attempted drug possession; a 1998 conviction for giving false information to
law enforcement; a 1998 conviction for assault on a police officer; a 2000
conviction for disorderly conduct; a 2000 conviction for drug abuse; a 2001
conviction for drug abuse; 2001 misdemeanor convictions for domestic
violence, disorderly conduct, contempt of court, misconduct on public
transportation, obstructing official business, resisting arrest, and three
convictions for trafficking in cocaine in 2001; 2004 convictions for possession
of drugs with a firearm specification, having a weapon under disability, and
carrying a concealed weapon; a 2005 conviction for disorderly conduct; 2006
convictions for drug possession, burglary, and felonious assault.
{¶6} The court stated:
The court finds this defendant is not amenable to community
control sanctions. And this court has also considered the
mitigation report and finds there are no psychiatric factors to this
defendant’s conduct and that it was strictly the fact that he
abuses drugs. And I know he has been placed on probation
before and this court is not willing to risk the safety of the
community and place this defendant on probation again.
***
The court further finds that consecutive sentences in this matter
are necessary to protect the public from the defendant’s behavior
based upon his extensive criminal history.
{¶7} The trial court sentenced defendant to 12 months of
imprisonment in CR-559132, to be served consecutive to a 12-month term
imposed in CR-558493. Defendant was also sentenced to up to three years of
postrelease control. He appeals the sentenced imposed in both matters,
assigning two errors for our review.
The trial court erred when it sentenced the Appellant to the
maximum sentence on a fifth degree felony that is amenable to a
community control sanction.
{¶8} In reviewing a felony sentence, we take note of R.C. 2953.08(G),
which provides:
(2) 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 sentencing 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 following:
(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 section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶9} The trial court has the full discretion to impose any term of
imprisonment within the statutory range, but it must consider the sentencing
purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12, and
State v. Stone, 3d Dist. No. 9-11-39, 2012-Ohio-1895, ¶ 10, citing State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 36-42; State v.
Elston, 3d Dist. No. 12-11-11, 2012-Ohio-2842, ¶ 10.
{¶10} R.C. 2929.11(A) provides that:
[A] court that sentences an offender for a felony shall be guided
by the overriding purposes of felony sentencing[,] * * * to protect
the public from future crime by the offender and others and to
punish the offender. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim
of the offense, the public, or both.
{¶11} R.C. 2929.12 provides a nonexhaustive list of factors a trial court
must consider when determining the seriousness of the offense and the
likelihood that the offender will commit future offenses.
{¶12} In both cases, defendant pled guilty to one count of drug
possession, a fifth degree felony, in violation of R.C. 2925.11. Drug
possession carries a possible prison term of between six months to twelve
months. See R.C. 2929.14(E). Defendant received the maximum term in both
matters.
{¶13} Further, prior to imposing sentence, the court ordered that
defendant be screened for eligibility for participation in the community- based
correction program. The court also referred defendant to the court
psychiatric clinic. These assessments offered nothing to mitigate
punishment in this matter. The court carefully considered the circumstances
of the instant offense, noting that defendant presented a threat to public
safety and had not been amenable to community control sanctions. The
court also noted defendant’s lengthy criminal record that spanned 20 years,
containing numerous drug offenses as well as assault convictions.
{¶14} The sentence of 12 months of imprisonment is within the
statutory range for the offense, that is, six months to twelve months of
imprisonment. R.C. 2925.11(C)(1)(a). State v. Reynolds, 8th Dist. No.
96412, 2012-Ohio-583, ¶ 11. Moreover, in both matters, the imposition of
this term is supported by the record. The 12-month sentences imposed by
the trial court in CR-558493 and CR-559132 are commensurate with the
offense and defendant’s criminal history and meets all applicable statutes.
In consideration of the foregoing, we find no error. The first assignment of
error is without merit.
{¶15} Defendant’s second assignment of error states:
The trial court erred when it ordered the Appellant to serve his
term of incarceration consecutive to another term imposed in
another criminal case.
{¶16} As to the imposition of consecutive terms, we note that in
accordance with H.B. 86, which became effective on September 30, 2011,
fact-finding is required prior to the imposition of consecutive sentences.
State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28; State v. Bonner, 8th
Dist. No. 97747, 2012-Ohio-2931, ¶ 5.
{¶17} R.C. 2929.14(C)(4) provides as follows:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the 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 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. (Emphasis added.)
{¶18} Therefore, as revived, R.C. 2929.14(C)(4) now requires the trial
court to engage in a three-step analysis in order to impose consecutive
sentences. State v. Lebron, 8th Dist. No. 97773, 2012-Ohio-4156, ¶ 10.
Under R.C. 2929.14(C)(4), in imposing consecutive sentences, the trial court must first find
the sentence is necessary to protect the public from future crime or to punish the offender.
Id. Next, the trial court must find that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public. Id.{¶19} Finally, the trial court must make at least one of the following findings: (1) the
offender committed one or more of the multiple offenses while awaiting trial or sentencing,
while under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, or while under
postrelease control for a prior offense; (2) 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 offenses
was so great or 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; or
(3) the offender’s history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender. Id.; R.C.
2929.14(C)(a)-(c).
{¶20} A trial court is not required to use “talismanic words to comply with the
guidelines and factors for sentencing.” State v. Brewer, 1st Dist. No. C-000148, 2000 Ohio
App. LEXIS 5455 (Nov. 24, 2000). It must be clear from the record, however, that the trial
court actually made the findings required by statute. State v. Pierson, 1st Dist. No.
C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998). A trial court satisfies this statutory
requirement when the record reflects that the court has engaged in the required analysis and
has selected the appropriate statutory criteria. See State v. Edmonson, 86 Ohio St.3d 324,
326, 1999-Ohio-110, 715 N.E.2d 131.
{¶21} In this matter, the trial court concluded that defendant was not amenable
to community control sanctions and that the sentence is necessary to protect the public from
future crime. The court also concluded that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the offender
poses to the public because he “commit[ted] offenses, including offenses against his own
mother while high on probably one of the most dangerous drugs that you can be high on,
PCP.” In addition, the trial court observed that two of the three requirements of
R.C. 2929.14(C)(4)(a),(b), and (c) were met. R.C. 2929.14(C)(4)(a) was met
because defendant committed the offenses while on postrelease control and
committed the January 11, 2012 offense while awaiting trial on the January
3, 2012 offense. R.C. 2929.14(C)(4)(c) was met because defendant’s
extensive criminal history demonstrated that consecutive sentences were necessary to
protect the public from future crime by the offender. The court noted that PCP is one
of the “most dangerous drugs that you can be high on.” The court also
concluded that the court ordered assessments had not revealed any
mitigatory factors. Therefore, the trial court articulated the appropriate
findings consistent with the directives of R.C. 2929.14(C) and met the
requirements of the applicable law.
{¶22} The second assignment of error is without merit.
{¶23} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR