State v. Moten , 2019 Ohio 1473 ( 2019 )

[Cite as State v. Moten, 2019-Ohio-1473.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 2018-CA-19 &
: 2018-CA-20
v. :
: Trial Court Case Nos. 2017-CR-447 &
AARON MOTEN : 2017-CR-744B
:
Defendant-Appellant : (Criminal Appeal from
: Common Pleas Court)
...........
OPINION
Rendered on the 19th day of April, 2019.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 East Second Street, Suite 2103,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
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FROELICH, J.
{¶ 1} In these consolidated cases, Aaron Moten appeals from the trial court’s
separate judgments sentencing him to an aggregate prison term of 72 months in Clark
C.P. No. 17-CR-447, and to another aggregate prison term of 72 months in Clark C.P.
No. 17-CR-744B, with those sentences to be served consecutively, for a total of 144
months (12 years) in prison. The judgment of the trial court will be affirmed.
Factual and Procedural Background
{¶ 2} On August 7, 2017, a Clark County grand jury indicted Moten in Clark C.P.
No. 17-CR-447 on five drug-related charges: 1) Count One, trafficking in cocaine in
violation of R.C. 2925.03(A)(2), a fourth-degree felony; 2) Count Two, trafficking in heroin
in violation of R.C. 2925.03(A)(2), a fourth-degree felony; 3) Count Three, possession of
cocaine in violation of R.C. 2925.11(A), a fourth-degree felony; 4) Count Four, possession
of heroin in violation of R.C. 2925.11(A), a fourth-degree felony; and 5) Count Five, illegal
conveyance of drugs of abuse onto the grounds of a specified governmental facility in
violation of R.C. 2921.36(A)(2), a third-degree felony. All five charges in Case No. 17-CR-
447 related to conduct alleged to have occurred on or about June 9, 2017.
{¶ 3} On November 27, 2017, a Clark County grand jury indicted Moten (along with
co-defendant Jamie Danielle Lavender) in Clark C.P. No. 17-CR-744B for: 1) Count One,
trafficking in cocaine in violation of R.C. 2925.03(A)(2), a third-degree felony; 2) Count
Two, trafficking in heroin in violation of R.C. 2925.03(A)(2), a third-degree felony; 3) Count
Three, possession of cocaine in violation of R.C. 2925.11(A), a third-degree felony; and
4) Count Four, possession of heroin in violation of R.C. 2925.11(A), a third-degree felony.
The indictment also included forfeiture specifications as to three quantities of cash seized
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from Moten and a vehicle. The charges against Moten in Case No. 17-CR-744B related
to conduct alleged to have occurred on or about June 2, 2017. Because Case No. 17-
CR-744B involved drugs in a greater quantity (i.e., 10 but less than 20 grams of cocaine,
and more than five but less than 10 grams of heroin), the offenses in that case carried
higher felony classifications than those in Case No. 17-CR-447.
{¶ 4} During a pretrial conference on Case No. 17-CR-447, Moten’s counsel
proposed that the parties discuss a “potential global resolution” of the charges in that case
and Case No. 17-CR-744B. (12/19/17 Pretrial Transcript (“Tr.”), p. 6). Moten
subsequently entered pleas of guilty in both cases (1/10/18 Plea Tr. p. 3), pursuant to a
written plea agreement in each case.
{¶ 5} At the plea hearing, the State articulated the facts underlying Moten’s
offenses as follows:
[As to Case No. 17-CR-447,] on June 9, 2017, the Defendant was
stopped * * * in Clark County, Ohio, for [a] window tint violation and driving
under suspension. As the deputy was approaching the vehicle, the
Defendant was making furtive movements and abruptly moved into the
passenger seat. He then quickly got out of the vehicle and dropped a large
amount of U.S. currency onto the ground. The currency totaled $590 in U.S.
currency. He was arrested for driving under suspension and transported to
the Clark County Jail.
Prior to being conveyed into the jail, deputies advised [Moten] of the
ramifications of conveying contraband into the jail. As he was being
changed out, a baggie was observed hanging from his buttocks. Inside the
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bag was [sic] four baggies containing 1.3 grams of heroin and two baggies
containing 8.35 grams of cocaine.
***
[As to Case 17-CR-744B], on June 2, 2017, at Clark County, Ohio,
the Defendant was stopped as he was driving down an alleyway * * *,
making furtive movements and driving erratically. As the officer approached
the vehicle, he noticed the Defendant Aaron Moten in the backseat moving
from the driver’s seat to the rear of the Tahoe vehicle, Chevy Tahoe; and
the Defendant’s passenger, Miss Lavender, had on her person a multitude
of drugs, that being 12.03 grams of cocaine[,] .99 grams of cocaine, 5.15
grams of heroin. [Moten] had on his person a substantial amount of cash,
that being $729 in U.S. currency. Defendant Lavender had in her purse
$4,020 in U.S. currency, and $1,535 in U.S. currency.
Both Defendant Lavender and Moten, after being Mirandized, wished
to speak to the Drug Unit of the Springfield Police Division in order to work
off their charges. Defendant Moten made statements to the effect that he
hustles a lot and that’s why he had such a large amount of cash.
(Plea Tr. pp. 8-11).
{¶ 6} In Case No. 17-CR-447, Moten pled guilty to the Count One and Two
offenses of trafficking in cocaine and heroin, and the Count Five offense of illegal
conveyance onto a governmental facility, in exchange for the dismissal of Counts Three
and Four (the possession offenses). In Case No. 17-CR-744B, Moten pled guilty to the
Count One and Two offenses of trafficking in cocaine and heroin, with Counts Three and
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Four (the possession offenses) to be dismissed. Moten also agreed to the forfeiture of a
total of $ 6,284 in U.S. currency seized in Case No. 17-CR-744B, as well as the forfeiture
of $867 in cash from Clark C.P. No. 17-CR-770A, a third case then pending against Moten
in the trial court that is not part of this appeal. In exchange for Moten’s guilty pleas in Case
Nos. 17-CR-447 and 17-CR-744B, the State agreed to dismiss Case No. 17-CR-770A.
{¶ 7} The presentence investigation (“PSI”) revealed that Moten had a significant
juvenile record as well as an extensive criminal history as an adult. His adult record
included, among other offenses, prior drug possession convictions in 1996, 1997, 2012,
and 2014; a prior drug trafficking conviction in 2014; four assault and one aggravated
assault convictions; one aggravated menacing conviction; convictions for receiving stolen
property, theft, and breaking and entering; a conviction for having weapons under
disability; a conviction and an outstanding warrant for domestic violence; and convictions
for fleeing/eluding police and failure to appear. Moten had served prison sentences for at
least seven of those offenses. The PSI assessed Moten as being high risk for recidivism.
{¶ 8} The trial court thereafter sentenced Moten in Case No. 17-CR-447 to 18
months in prison on the Count One cocaine trafficking offense, 18 months on the Count
Two heroin trafficking offense, and 36 months on the Count Five illegal conveyance
offense, to “be served consecutively for a total of 72 months.” In Case No. 17-CR-744B,
the court sentenced Moten to 36 months on each of the two trafficking offenses, to be
served “consecutively with [sic] each other and consecutive to the sentence imposed in
17-CR-0447.”1 The sentences imposed total 144 months.
1 The trial court also ordered the forfeiture of the currency amounts seized from Moten
(Disposition Tr. pp. 10-11); Moten has not challenged that portion of the judgment.
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{¶ 9} Moten appeals those judgments, raising three assignments of error:
1) The trial court erred by sentencing [Moten] for trafficking in drugs and
conveyance of prohibited items, which arose from a single animus;
2) [Moten]’s counsel’s acquiescence to a prison sentence rendered his
assistance ineffective; and
3) The imposition of consecutive sentences and the maximum sentence for
[Moten]’s felony conviction[s] are [sic] not supported by clear and convincing
evidence and is contrary to law.
Assignment of Error #1 – Merger of Single Animus Offenses
{¶ 10} In his first assignment of error, Moten claims that the trial court erred by
sentencing him in Case No. 17-CR-447 for both trafficking in drugs and illegal conveyance
of drugs, offenses that Moten contends “arose from a single animus.” Characterizing his
conveyance of drugs into the jail as “involuntary,” Moten maintains that the trial court
should have merged the illegal conveyance offense with the trafficking offenses for
purposes of sentencing.
a. Standard of Review
{¶ 11} Appellate courts conduct a de novo review of a trial court’s merger
determination under R.C. 2941.25. State v. Shoecraft, 2d Dist. Montgomery No. 27860,
2018-Ohio-3920, ¶ 55, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983
N.E.2d 1245, ¶ 28. We afford no deference to the trial court’s legal conclusions, and
independently determine whether the facts of record satisfy the applicable legal standard.
Williams at ¶ 25-27. A defendant bears the burden of establishing his entitlement to the
protection afforded by the allied offense statute. Id. at ¶ 55, citing State v. Washington,
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137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18.
{¶ 12} We see no indication in the record that Moten objected in the trial court to
the failure to merge those offenses. However, because a trial court’s failure to merge
allied offenses of similar import constitutes plain error, see id. at ¶ 56. Moten’s apparent
waiver of all but plain error as to the merger issue does not foreclose our review of this
assignment of error. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 3.
b. Applicable Substantive Law regarding Merger
{¶ 13} Ohio's allied offenses statute provides:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
R.C. 2941.25.
{¶ 14} When considering whether multiple offenses are allied offenses of similar
import, a court must ask three questions: “ ‘(1) Were the offenses dissimilar in import or
significance? (2) Were they committed separately? and (3) Were they committed with
separate animus or motivation?’ ” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615,
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49 N.E.3d 266, ¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
892, ¶ 31. An affirmative answer to any of those questions permits separate convictions.
State v. Caldwell, 2d Dist. Montgomery No. 27856, 2018-Ohio-4639, ¶ 22, citing Earley
at ¶ 12 and Ruff at ¶ 31.
{¶ 15} As to the import or significance question, offenses are of dissimilar import
within the meaning of R.C. 2941.25(B) “if the harm that results from each offense is
separate and identifiable.” Ruff at ¶ 23. In regard to animus, “ ‘[w]here an individual’s
immediate motive involves the commission of one offense, but in the course of committing
that crime he must, [a] priori, commit another, then he may well possess but a single
animus, and in that event may be convicted of only one crime.’ ” State v. Ramey, 2015-
Ohio-5389, 55 N.E.3d 542, ¶ 70 (2d Dist.), quoting State v. Logan, 60 Ohio St.2d 126,
131, 397 N.E.2d 1345 (1979). In other words, “[i]f the defendant acted with the same
purpose, intent, or motive in both instances, the animus is identical for both offenses.”
State v. Hudson, 2013-Ohio-2351, 993 N.E.2d 443, ¶ 54 (2d Dist.), quoting State v. Lewis,
12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13.
c. Moten’s Merger Challenge
{¶ 16} Under substantially similar facts, another Ohio appellate court rejected the
argument Moten makes here. See State v. Deckard, 2017-Ohio-8469, 100 N.E.3d 53 (4th
Dist.). Like Moten, the defendant in Deckard argued that the trial court “committed
reversible error by declining to merge [an] illegal conveyance violation with” other drug
offenses (in Deckard’s case, possession rather than trafficking). Id. at ¶ 46. The Court in
Deckard described the relevant circumstances leading to that defendant’s conviction as
follows:
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On February 29, 2016, Dustin A. Deckard was incarcerated at the
Gallia County Jail. According to the trial testimony, he was booked in around
9:00 a.m. that day. During the evening hours, Deputy Cain noticed an odor
similar to burning plastic. Appellant [Deckard] was in a cell block with
approximately 8 to 10 other inmates.
***
* * * [Officer Cain] and another corrections officer, Debra Smith,
handcuffed the inmates to bars for the officers’ own safety, and searched
each inmate individually. Officer Cain’s searches of the inmates yielded
nothing until he came to Appellant.
Officer Cain testified he performed an initial pat-down on Appellant
and felt something. He retrieved a baggie with an unknown substance from
Appellant’s buttocks. * * *
Id. at ¶ 2, 34-36.
{¶ 17} After laboratory testing confirmed that the substance found on Deckard
contained heroin and cocaine, id. at ¶ 3, Deckard was charged with, convicted of and
sentenced for possession of heroin, possession of cocaine, and illegal conveyance of
drugs onto the grounds of a detention facility. Id. at ¶ 1.
{¶ 18} Considering Deckard’s contention on appeal that his possession and
conveyance of the drugs constituted “a single act, committed with a single state of mind,”
id. at ¶ 48, the Fourth District Court explained its reasoning to the contrary:
* * * The inference arising at trial was that Appellant possessed the
two distinct drugs outside of the jail. His “conveyance” or “movement” of the
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drugs into the jail facility constituted a separate and distinct action. In this
way, the conveyance offense was committed separately and with a
separate animus, affirmative answers to both the second and third
questions prescribed by Ruff [,143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, ¶ 31].
Our research did not yield other cases in which the failure to merge
a possession conviction into an illegal conveyance conviction was
challenged. In reviewing cases involving appeal of other illegal conveyance
convictions, we observe the State provided evidence in many cases that
upon booking, defendants were questioned as to whether they were
carrying contraband and further, advised if they were later found to be
carrying contraband, they would be subject to prosecution for the offense of
illegal conveyance. In this manner, a distinct and separate break in the
conduct would be obvious. However, the fact that the record herein does
not contain evidence of such questioning, or evidence of further advisal [sic]
to Appellant of a potential additional charge for any conveyance of
contraband, does not change the result.
For the foregoing reasons, we find neither of Appellant’s possession
convictions must be merged into the illegal conveyance conviction as allied
offenses for purposes of sentencing.
Deckard at ¶ 53-55.
{¶ 19} We find the Fourth District’s reasoning to be even more persuasive under
the facts of Moten’s case. Moten had the “baggies” containing saleable quantities of
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cocaine and heroin hidden on his person before being transported to the jail. Despite
being warned that conveying contraband into the jail could result in additional charges –
a warning absent from the Deckard case – Moten failed to disclose the presence of the
concealed drugs, and instead attempted to carry them into the jail with him. As observed
by the Fourth District in Deckard, Moten’s disregard of such warnings evidences “a
distinct and separate break” in his conduct. See id. at ¶ 54.
{¶ 20} Moten’s illegal conveyance of the drugs into the jail was “committed
separately” from his trafficking of those drugs outside of the jail. Additionally, Moten’s
illegal conveyance reasonably can be inferred to have been “committed with separate
animus or motivation” from his trafficking of the same drugs – e.g., intended to conceal
those drugs to prevent their confiscation by police and the prospect of additional charges
and/or to preserve the drugs for his own use while incarcerated, instead of simply to sell
the drugs. See Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. Either of
those factors would suffice to establish that the offenses were not allied offenses of similar
import committed with a single animus. See R.C. 2941.25. The trial court did not err by
failing in Case No. 17-CR-447 to merge Moten’s drug trafficking offenses with his illegal
conveyance for purposes of sentencing.
{¶ 21} We are not dissuaded from that conclusion by Moten’s additional
suggestion that his conveyance of the drugs into the jail was “involuntary.” (Appellant’s
Brief, p. 5). Although Moten offers no explanation as to the purported involuntariness of
his conduct, the argument advanced in another illegal conveyance case provides some
context. See State v. Cargile, 123 Ohio St.3d 343, 2009-Ohio-4939, 916 N.E.2d 775, ¶
11. There, the “sole issue” presented on appeal was whether the defendant had
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“voluntarily conveyed drugs into the jail.” Id. at ¶ 11. The Supreme Court analyzed that
issue as follows:
The court of appeals held that entering the detention facility with
drugs in his pants cuff was not a voluntary act by Cargile, because at the
time of his entry, he was under arrest. Because his arrest and transport to
the detention facility deprived him of the fundamental right to freedom, the
court of appeals held, his presence in the facility was a wholly involuntary
act on his part.
We disagree with the court’s analysis and conclude that Cargile’s
conduct constituted a voluntary act. Although Cargile did not have any
choice whether to go to jail following his arrest, the fact that his entry into
the jail was not of his volition does not make his conveyance of drugs into
the detention facility an involuntary act. He was made to go into the
detention facility, but he did not have to take the drugs with him.
Conscious and aware of the physical presence of the drugs hidden
in his pants cuff, Cargile did not reveal his possession of the drugs during
any of the searches * * *, despite the warning Cargile received that if he
brought drugs into the detention facility he would be committing a felony.
Cargile declined opportunities to end his possession of the drugs before
entering the facility. Accordingly, Cargile’s possession of the drugs when he
entered the detention facility was a voluntary act, and thus he was criminally
liable under R.C. 2921.36(A)(2).
Id. at ¶ 12-14.
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{¶ 22} The Cargile opinion effectively disposes of any claim that Moten’s
conveyance of drugs into the Clark County jail was involuntary. Moten’s first assignment
of error is overruled.
Assignment of Error #2 – Ineffective Assistance of Counsel
{¶ 23} In his second assignment of error, Moten contends that he was denied the
effective assistance of counsel by his trial attorney’s “affirmative acceptance of the trial
[c]ourt’s imposition of a prison sentence.” As evidence of that purported “acquiescence,”
Moten points to his trial counsel’s statement during the sentencing hearing that
“[o]bviously [Moten] is going to be sent to prison today.” (See Disposition Tr. p. 5). He
also faults his trial counsel for purportedly “bolster[ing] the presumption of prison by
indicating that [Moten] lacked remorse, and that he was more than likely to recidivate.”
a. Standard of Review
{¶ 24} To establish ineffective assistance of counsel, a defendant must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that the errors were serious enough to create a reasonable
probability that, but for the errors, the outcome of the case would have been different.
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 141–142, 538 N.E.2d 373 (1989). Hindsight is not
permitted to distort the assessment of what was reasonable in light of counsel’s
perspective at the time, and a debatable decision concerning trial strategy cannot form
the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d
516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶
38 (2d Dist.). Trial counsel is also entitled to a strong presumption that his or her conduct
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falls within the wide range of reasonable assistance. Strickland at 689.
b. Moten’s Ineffective Assistance of Counsel Claim
{¶ 25} Moten cites no legal authority for the proposition that the conduct he
attributes to his trial attorney amounted to a denial of Moten’s right to the effective
assistance of counsel. Furthermore, our review of the record reveals no actions by
Moten’s trial attorney that could be deemed to fall below an objective standard of
reasonableness.
{¶ 26} In commenting that Moten “[o]bviously * * * is going to be sent to prison,”
his trial counsel was acknowledging the reality confronting Moten at that time; the
seriousness of the felonies to which Moten had pled guilty, combined with his extensive
criminal history and prior record of re-offending after incarceration, meant that a prison
sentence of some duration “obviously” would be imposed in these consolidated cases.
Moten’s attorney cannot be said to have performed deficiently by offering that
acknowledgment.
{¶ 27} Further, we do not agree that the record reflects any implication by Moten’s
attorney that Moten “lacked remorse” or “was more than likely to recidivate.” The only
remarks Moten cites as evidence of what he deems his counsel’s deficiency in that
respect are these:
Mr. Moten is at an age2 where maybe these behaviors are starting to fade
in his interest * * * I just think that he’s statistically reaching the outer edge
where people generally commit these acts.
(Disposition Tr. p. 5).
2
The PSI indicates that Moten was 41 years old at the time of sentencing.
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{¶ 28} We do not interpret those statements as suggesting that Moten “lacked
remorse” or “was more than likely to recidivate.” Instead, trial counsel was urging that
Moten had reached a level of maturity where he would be less likely to re-offend. In light
of Moten’s prior criminal history, no other potential arguments in mitigation can be readily
gleaned from the record. Moreover, Moten was given the opportunity to offer his own
expression of remorse, which largely echoed his attorney’s perspective. The entirety of
Moten’s statement at the sentencing hearing was this:
I would like to take ownership of everything I did, and I’m sorry. You know,
I’m getting at an age where, you know, it starts to take a toll on you, you
know? I would – I’m just sorry. If I could take anything back, I would.
(Disposition Tr. p. 6).
{¶ 29} “It is well established that the presentation of mitigating evidence is a matter
of trial strategy and ‘[t]he decision to forgo the presentation of additional mitigating
evidence does not itself constitute ineffective assistance of counsel.’ ” State v. Foster, 2d
Dist. Montgomery No. 25655, 2014-Ohio-530, ¶ 14, quoting State v. Hand, 107 Ohio St.3d
378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 240, quoting State v. Keith, 79 Ohio St.3d 514,
536, 684 N.E.2d 47 (1997). Moten’s trial counsel cannot be said to have performed
deficiently by making a strategic decision to argue that Moten had “aged out” of drug
activity and to defer to Moten to offer his own personal expression of remorse in mitigation
of his offenses. See Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70; Fields, 2017-
Ohio-400, 84 N.E.3d 193, at ¶ 38.
{¶ 30} Because the performance of Moten’s trial attorney did not fall below an
objective standard of reasonableness due to the limited arguments he offered in
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mitigation, Moten’s second assignment of error is overruled.
Assignment of Error #3 – Imposition of Maximum and Consecutive Sentences
{¶ 31} In his final assignment of error, Moten argues that the trial court erred by
imposing consecutive and maximum sentences for all of the felony offenses in these
cases. We are unable to conclude that the record clearly and convincingly fails to support
the sentence imposed by the trial court or that such sentence is contrary to law.
a. Standard of Review
{¶ 32} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
only if it “clearly and convincingly” finds that either (1) the record does not support certain
specified findings, or (2) the sentence imposed is contrary to law. State v. Mayberry, 2d
Dist. Montgomery No. 27530, 2018-Ohio-2220, ¶ 41, quoting R.C. 2953.08(G)(2).
{¶ 33} “ ‘Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the extent of such
certainty as is required “beyond a reasonable doubt” in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.’ ” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus.
{¶ 34} Sentences are “contrary to law” when they do not fall within statutory ranges
for offenses or when the trial court fails to consider “the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.”
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State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.), citing State v. Pawlak,
8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. “The trial court has full discretion
to impose any sentence within the authorized statutory range, and the court is not required
to make any findings or give its reasons for imposing maximum or more than minimum
sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in
exercising its discretion, a trial court must consider the statutory criteria that apply to every
felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v.
Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 35} Under R.C. 2929.11, trial courts are to be guided by the overriding purposes
of felony sentencing, which are to “to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). As to R.C. 2929.12, subsection (B) lists
nine factors indicating that an offender’s conduct is more serious than conduct normally
constituting the offense, and R.C. 2929.12(C) outlines four factors indicating that an
offender’s conduct is less serious than conduct normally constituting the offense. R.C.
2929.12(D) and (E) each list five factors to consider in deciding if an offender is likely to
commit future crimes. Under R.C. 2929.12(F), an offender’s military service, if any, is
considered.
{¶ 36} Separately, pursuant to R.C. 2929.14(C)(4), a trial court may impose
consecutive sentences if it determines that (1) consecutive service is necessary to protect
the public from future crime or to punish the offender; (2) consecutive sentences are not
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disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public; and (3) one or more of the following three findings are
satisfied:
(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.
State v. Brewer, 2017-Ohio-119, 80 N.E.2d 1257, ¶ 9, citing R.C. 2929.14(C)(4).
{¶ 37} Generally, “if the trial court does not make the factual findings required by
R.C. 2929.14(C)(4), then ‘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.’ ” State v. Bonnell,
150 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 13, quoting R.C. 2929.41(A).
“[J]udges are required to adhere to R.C. 2929.14(C)(4) and 2929.41(A) in imposing
consecutive sentences and to make the required findings.” Id. at ¶ 35. Therefore, a trial
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court imposing consecutive sentences “must state the required findings as part of the
sentencing hearing,” and “should also incorporate its statutory findings into the sentencing
entry.” Id. at ¶ 29. However, the trial court “has no obligation to state reasons to support
its findings[, n]or is it required to give 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., ¶ 37.
{¶ 38} We have read Bonnell to require that the necessary findings “be included in
the judgment entry, although ‘word-for-word recitation’ of [R.C. 2929.14(C)(4)] is not
required.” State v. Snowden, 2d Dist. Montgomery No. 26329, 2015-Ohio-1049, ¶ 12,
quoting Bonnell at ¶ 29. Omission of the necessary findings from the judgment entry “may
be corrected through a nunc pro tunc entry, without any other additional proceedings, as
long as it is apparent that the necessary findings were made by the trial court at the
sentencing hearing.” (Emphasis sic.) Id.; see Bonnell at ¶ 30.
b. Moten’s Challenge to Maximum Sentences
{¶ 39} Here, the trial court in both cases imposed the maximum sentence
permitted by the statutory range for each of Moten’s offenses. In doing so, the court
generally outlined the various sentencing purposes, principles, and factors it had
considered in accordance R.C. 2929.11, R.C. 2929.12, and R.C. 2929.13. The court then
articulated some specific reasons underlying its conclusions as to the relevant
considerations:
* * * [I]n both cases, I find * * * no factors [under R.C. 2929.12(B) and
(C)] that would indicate [Moten’s] conduct was more serious or less serious
[than conduct normally consisting these offenses].
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In 2929.12(B), factors indicating recidivism is more likely, the Court
finds the Defendant has previously been adjudicated delinquent – I
understand it’s been some time ago – and was not rehabilitated to a
satisfactory degree after prior adjudication of delinquency.
[Moten] has a history of criminal convictions and has not responded
favorably to sanctions previously imposed for those criminal convictions,
and I find no general [sic] remorse. Actually, while the Defendant had
already been stopped and charged with these two cases, he picked up * * *
the other charge in 17-CR-077[0]A, which is being dismissed today; but it
appears from the facts I reviewed in that case he again was in the
community operating a car without any valid license and [in] possession of
drugs which appear to have been prepared for resale.
Under 2929.12(E), factors indicating there’s a less likelihood of
recidivism, I find none of those factors applicable to these cases.
The Defendant has no military service record to consider.
The Defendant scored high on the Ohio Risk Assessment Survey.
As to 2929.13, the factors of mandatory community control – well,
first of all, the highest offense in these cases is a felony of the third degree
so it would not apply[,] and his prior felony convictions would also make it
an inapplicable statute.
The Court finds a combination of community control sanctions would
demean the seriousness of the Defendant’s conduct and its impact upon
the victim, which at this point is the community, which has been somewhat
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laid low by the drug problems, including opioid – especially opioid, I guess;
and the Defendant, as pointed out by the State, appears to be a mid-level
provider of that poison to this community.
A sentence of imprisonment is commensurate with the serious[ness]
of his conduct and its impact on the victim and does not place an
unnecessary burden on the State governmental resources.
In looking at 2929.13(D), I find that the factors do not overcome any
presumption or reason for a prison sentence.
***
* * * [Further, as to the Count Five offense], illegal conveyance of a
drug of abuse onto a governmental facility, in this case the Defendant was
trying to take drugs into the Clark County Jail where in the past people have
overdosed in the jail; and I am familiar with at least one death from drugs
that were smuggled into the jail. * * *
(Disposition Tr. pp. 7-9).
{¶ 40} Moten has identified no particular factor mentioned by the trial court that
Moten claims relied on inaccurate information or was unsupported by the record, and our
review of the record confirms that it does not clearly and convincingly fail to support the
trial court’s findings. The trial court had discretion to discount Moten’s profession of
remorse. See, e.g., State v. Hand, 2d Dist. Clark No. 2016-CA-51, 2017-Ohio-7340, ¶ 9
(“the trial court had discretion to conclude, based in part on [defendant’s] decades-long
criminal career, that his expressions of remorse were not genuine”); State v. Spencer, 2d
Dist. Clark No. 2017-CA-22, 2018-Ohio-873, ¶ 9; State v. Chattams, 2d Dist. Montgomery
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No. 26151, 2015-Ohio-453, ¶ 11. The court’s conclusion in that regard was not
unreasonable, especially given credible indications that Moten had continued to engage
in illegal drug activity even after being charged in these two cases. For purposes of
sentencing, a court “is not confined to [considering] the evidence that strictly relates to
the conviction offense because the court is no longer concerned * * * with the narrow
issue of guilt.” State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714,
¶ 14 (2d Dist.). Sentencing courts may consider “hearsay evidence, facts related to
charges that were dismissed pursuant to a plea bargain, and allegations contained in a
PSI report.” State v. Bautista, 2d Dist. Clark No. 2015-CA-74, 2016-Ohio-5436, ¶ 12, citing
State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 8.
{¶ 41} Here, the trial court properly considered the criteria set forth in R.C.
2929.11, 2929.12, and 2929.13. Moten’s sentences were within the statutory sentencing
range, the record does not clearly and convincingly fail to support the court’s decision to
impose maximum sentences, and the sentences were not contrary to law. Accordingly,
Moten’s challenge to the trial court’s imposition of maximum sentences is overruled.
c. Moten’s Challenge to Consecutive Sentences
{¶ 42} The trial court’s findings made during the sentencing hearing complied with
the statutory requirements for imposing consecutive sentences. After pronouncing
Moten’s maximum sentence for each offense, the trial court stated:
The Court finds consecutive service as to these sentences imposed
in 17-CR-0447 and 17-CR-0744B is necessary to protect the public from
future crime and to punish the Defendant and that consecutive sentences
are not disproportionate to the seriousness of the Defendant’s conduct and
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to the danger that he poses to the public.
The Court also finds Defendant’s history of criminal conduct
demonstrates consecutive sentences are necessary to protect the public
from future crime by the Defendant.
(Disposition Tr. p. 11).
{¶ 43} The findings contained within the first sentence above satisfy two of the
three prerequisites to consecutive sentences under R.C. 2929.14(C)(4). The finding
contained in the second sentence fulfills the third requirement as set forth at R.C.
2929.14(C)(4)(c), and is supported by the PSI’s recitation of Moten’s extensive criminal
history. 3 The court then repeated those same findings in its sentencing entry. (See
2/14/18 Amended Nunc Pro Tunc Judgment Entry of Conviction, p. 4). As such, the trial
court fully complied with the requirements for imposing consecutive sentences in
accordance with R.C. 2929.14(C)(4). See Bonnell, 150 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, and Snowden, 2d Dist. No. 26329, 2015-Ohio-1049, at ¶ 12.
{¶ 44} Moten’s third assignment of error is overruled.
Conclusion
{¶ 45} The judgment of the trial court will be affirmed.
.............
WELBAUM, P.J. and DONOVAN, J., concur.
3
Further, although not explicitly recited in support of consecutive sentences, the trial
court’s earlier observation that Moten was charged with another drug possession offense
while these cases were pending also is relevant. See R.C. 2929.14(C)(4)(a).
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Copies sent to:
John M. Lintz
Michael T. Columbus
Hon. Richard J. O’Neill