State v. Roberts , 2020 Ohio 6722 ( 2020 )

[Cite as State v. Roberts, 2020-Ohio-6722.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2020 CA 0030
JESSE ROBERTS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 18 CR 503
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 15, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES JAMES A. ANZELMO
PROSECUTING ATTORNEY ANZELMO LAW
PAULA M. SAWYERS 446 Howland Drive
ASSISTANT PROSECUTOR Gahanna, Ohio 43230
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 2020 CA 0030 2
Wise, J.
{¶1} Appellant Jesse Roberts appeals the sentence after entering a plea of guilty
in the Court of Common Pleas of Licking County. Appellee is the State of Ohio. The
relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 9, 2018, while conducting surveillance on a residence,
detectives with the Central Ohio Drug Enforcement Task Force (“CODE”) ran a license
plate of a parked vehicle. The license plate returned as belonging to a stolen vehicle.
Detectives observed Appellant enter the vehicle and drive away. The police executed a
traffic stop and placed Appellant in custody. During a search of Appellant, Officers located
1.97 grams of Methamphetamine, a Schedule II controlled substance.
{¶3} On July 19, 2018, Appellant was indicted for one count of Aggravated
Possession of Drugs, a violation of R.C. §2925.11(A)(C)(1)(a), a felony of the 5th degree.
{¶4} On February 24, 2018, the Licking County Sheriff’s Office responded to a
report of a stolen vehicle that had been crashed and abandoned. The caller described the
driver as wearing a red sweatshirt and shorts, and fled on foot. During a search of the
area, Officers discovered a red sweatshirt and a black hat lying on the ground near the
road. Appellant was located in the woods not far from the discarded clothing. Officers
found a yellow satchel containing .56 grams of Methamphetamine, a Schedule II
controlled substance, under Appellant.
{¶5} On August 30, 2018, a superseding indictment was issued where Appellant
was charge with a second count of Aggravated Possession of Drugs in violation of R.C.
§2925.11(A)(C)(1)(a), a felony in the 5th degree.
Licking County, Case No. 2020 CA 0030 3
{¶6} On November 6, 2018, Appellant informed the court he wished to enter a
plea of guilty. At the hearing, the Appellee presented facts which included the Appellant
was driving a stolen vehicle on both January 9, 2018, and February 24, 2018, when
Counts 1 and 2 of the indictment, respectively, took place. Appellant agreed with the facts
set forth by Appellee and pled guilty to the indictment. Appellant also acknowledged he
was on parole at the time of the hearing and of the indictment. He further acknowledged
his understanding that the post-release control time could be imposed based upon his
guilty plea on the indictment.
{¶7} At the sentencing hearing, the trial court noted that a pre-sentence
investigation report showed that Appellant had past criminal history dating back to 1995
which included both felony and misdemeanor convictions. These included multiple
convictions for Theft and Burglary, a conviction for Aggravated Robbery with a Firearm
Specification in 2001, Receipt of Stolen Property in 2001, having Weapons While Under
Disability in 2001, Robbery in 2010, Unauthorized Use of a Motor Vehicle in 1997, 1999,
2009, and 2017, and Attempted Grand Theft of a Motor Vehicle and Grand Theft of a
Motor Vehicle in 1999 and 2001. The pre-sentence investigation report also disclosed the
reason for his criminal activity was drug abuse. He reported drug use since he was eleven
years-old.
{¶8} At the sentencing hearing, the trial court noted that Appellant was a danger
to the community. The trial court considered the purposes and principles of sentencing
set out in R.C. §2929.11, as well as the seriousness and recidivism factors under R.C.
§2929.12. The court then sentenced the Appellant to nine months each on Counts 1 and
2 and ordered them to run consecutively. The court found that consecutive sentences
Licking County, Case No. 2020 CA 0030 4
were necessary to protect the public, punish Appellant, not disproportionate to the crime
that’s been committed, and necessitated by Appellant’s criminal conduct.
ASSIGNMENTS OF ERROR
{¶9} On March 20, 2020, Appellant filed a notice of appeal. He herein raises the
following two Assignments of Error:
{¶10} “I. THE TRIAL COURT IMPROPERLY SENTENCED ROBERTS BASED
ON CONDUCT FOR WHICH ROBERTS DENIED AND WAS NOT CONVICTED, IN
VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10,
ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶11} “II. THE TRIAL COURT UNLAWFULLY ORDERED ROBERTS TO SERVE
CONSECUTIVE SENTENCES FOR HIS DRUG OFFENSES, IN VIOLATION OF HIS
RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.”
I.
{¶12} In his First Assignment of Error, Appellant argues that the trial court
improperly sentenced him for conduct which he was not convicted. We disagree.
{¶13} We review felony sentences using the standard of review set forth in R.C.
§2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.
§2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for sentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. §2929.13(B) or (D),
Licking County, Case No. 2020 CA 0030 5
§2929.14(B)(2)(e) or (C)(4), or §2929.20(l), or the sentence is otherwise contrary to law.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
{¶14} Clear and convincing evidence is evidence “which will provide 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, 120 N.E.2d 118 (1954). “Where the degree of proof
required to sustain an issue must be clear and convincing, a reviewing court will examine
the record to determine whether the trier of facts had sufficient evidence before it to satisfy
the requisite degree of proof.” Id.{¶15} “R.C. 2929.11(A) governs the purposes and principles of felony sentencing
and provides that a sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of sentencing[.]” State v. Harris, 5th Dist. Muskingum
No. CT2019-0075, 2020-Ohio-4600, ¶32. The first is to protect the public from future
crime by the offender and others, and the second is to punish the offender using the
minimum sanctions that the court determines will accomplish those purposes. Id. The
sentence imposed shall be “commensurate with and not demeaning to the seriousness
of the offender’s conduct and its impact on the victim, and consistent with sentences
imposed for similar offenders.” R.C. §2929.11(B).
{¶16} “R.C. 2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C.2929.11.” Harris at ¶33. These
factors include the physical or mental injury suffered by the victim due to the age of the
victim; the physical, psychological, or economic harm suffered by the victim; whether the
offenders relationship with the victim facilitated the offense; the defendant’s prior criminal
Licking County, Case No. 2020 CA 0030 6
record; whether the defendant was under a court sanction at the time of the offense;
whether the defendant shows any remorse; and any other relevant factors. R.C.
§2929.12(B). R.C. §2929.12(C) provides factors a court must consider indicating the
offender’s conduct is less serious than conduct normally constituting the offense,
including mitigating factors. R.C. §2929.12(D) & R.C. §2929.12(E) set forth factors
bearing on whether the offender is likely or not likely to commit future crimes.
{¶17} In the case sub judice, Appellant contests that the trial court sentenced
Appellant to being in possession of a stolen automobile even though the defendant was
not convicted of this and denied doing this.
{¶18} During the sentencing hearing, the trial court did state that due to Appellant
being found in stolen vehicles on two separate occasions using methamphetamine, he
was a danger to his community and motor vehicle owners. However, the trial court made
clear its awareness that any possession of a stolen car charge was dismissed, and this
sentence was imposed on the two counts listed in the indictment, both Aggravated
Possession of Drugs. The record established that the trial court considered the purposes
and principles of sentencing as well as the seriousness and recidivism factors set out in
R.C. §2929.11 and R.C. §2929.12, respectively.
{¶19} Upon review, we do not find clear and convincing evidence that the record
does not support the trial court’s findings or that the sentence is contrary to law. The
sentence is within the statutory range for a felony sentence of the fifth degree, and the
trial court considered the R.C. §2929.11 and R.C. §2929.12 factors.
{¶20} Appellants’ First Assignment of Error is overruled.
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II.
{¶21} In his Second Assignment of Error, Appellant argues that the consecutive
sentences are not supported by the record.
{¶22} Again, R.C. §2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶1.
Pursuant to R.C. §2953.08(G)(2), an appellate court may only “increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing” if the court finds by clear and convincing evidence
“(a) [t]hat the record does not support the sentencing court’s findings[,]” or “(b) [t]hat the
sentence is otherwise contrary to law.” R.C. §2953.08(G)(2)(a)-(b).
{¶23} R.C.§2929.14(C)(4) provides:
(C)(4) 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 courts 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.
Licking County, Case No. 2020 CA 0030 8
(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.
{¶24} Thus, the trial court must find that consecutive sentences are necessary to
protect the public from future crime to punish the offender. In addition, the court must find
that consecutive sentences are not disproportionate to the offender’s conduct and to the
danger the offender poses to the public. Finally, the court must make at least one of these
three additional findings: (1) the offender committed one or more of the offenses while
awaiting trial or sentencing, while under a sanction imposed under R.C. §2929.16,
§2929.17, or §2929.18, or while under post-release 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 would adequately reflect the seriousness of the offender’s conduct; or (3) the
offender’s criminal history demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender. See, State v. White, 5th Dist. Perry
No. 12-CA-00018, 2013-Ohio-2058, ¶36.
Licking County, Case No. 2020 CA 0030 9
{¶25} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. §2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,
2014-Ohio-3177, syllabus. In other words, the sentencing court does not have to perform
“a word-for-word recitation of the language of the statute.” Id. at ¶29. Therefore, “as long
as the reviewing court can discern that the trial court engaged in the correct analysis and
can determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. If a sentencing court fails to make the findings required
by R.C. §2929.14(C)(4), a consecutive sentence imposed is contrary to law. Id. at ¶34.
The trial court is not required “to give a talismanic incantation of the words of the statute,
provided that the necessary findings can be found in the record and are incorporated into
the sentencing entry.” Id. at ¶37.
{¶26} During the sentencing hearing of Appellant, the sentencing court
considered the purposes and principles of sentencing, as well as the seriousness and
recidivism factors. The sentencing court also noted that it found consecutive sentences
are necessary to protect the public, punish Appellant, not disproportionate to the crime
that he committed, and are also necessary by his criminal conduct.
{¶27} Additionally, the sentencing entry states, “the Court finds that consecutive
sentences are necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the public[.]” Judgment Entry
– Sentencing, November 6, 2018. The court continued, “[t]he offender’s history of criminal
Licking County, Case No. 2020 CA 0030 10
conduct demonstrates that consecutive sentences are necessary to protect the public
from future crime by the offender.” Id.
{¶28} As a result, upon review of the sentencing transcript and the judgment entry,
we can discern from the record that the sentencing court engaged in the appropriate
analysis and made the requisite findings. Therefore, we find the imposition of consecutive
sentences in this case was not contrary to law.
{¶29} Appellant’s Second Assignment of Error is overruled.
{¶30} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, J., and
Hoffman, J., concur.
JWW/br 1209