State v. Stodgel , 2024 Ohio 5182 ( 2024 )

[Cite as State v. Stodgel, 2024-Ohio-5182.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 23CA15
v. :
BRANDON C. STODGEL, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Peter Galyardt, Assistant State Public Defender, Columbus, Ohio,
for appellant1.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C.
Wells, Assistant Prosecuting Attorney, Chillicothe, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:10-23-24
ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas Court
judgment of conviction and sentence. Brandon Stodgel, defendant
below and appellant herein, assigns two errors for review:
FIRST ASSIGNMENT OF ERROR:
“BRANDON STODGEL’S TRIAL COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION
OF HIS CONSTITUTIONAL RIGHTS. FOURTH, SIXTH,
1
Different counsel represented appellant during the trial
court proceedings.
2
ROSS, 23CA15
AND FOURTEENTH AMENDMENTS, UNITED STATES
CONSTITUTION; ARTICLE I, SECTIONS 10, 14, AND
16, OHIO CONSTITUTION; STRICKLAND V.
WASHINGTON, 466 U.S. 668, 104 S.CT. 2052, 80
L.ED.2D 674 (1984). TRIAL TR. 97-101, 103-105,
109-115, 276-278.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT SENTENCED
BRANDON STODGEL TO A CONSECUTIVE SENTENCE THAT
THE RECORD CLEARLY AND CONVINCINGLY DOES NOT
SUPPORT. R.C. 2929.14(C)(4); R.C. 2953.08.
MAY 22, 2023 JUDGMENT ENTRY OF SENTENCE.”
{¶2} In March 2022, a Ross County Grand Jury returned an
indictment that charged appellant with (1) one count of aggravated
robbery in violation of R.C. 2911.01, a first-degree felony, with a
repeat-violent-offender specification as defined in R.C. 2929.01
and a firearm specification, (2) one count of aggravated robbery in
violation of R.C. 2911.01, a first-degree felony, with a repeat-
violent-offender specification as defined in R.C. 2929.01 and a
firearm specification, (3) one count of burglary in violation of
R.C. 2911.12, a third-degree felony, and (4) one count of having
weapons while under disability in violation of R.C. 2923.13, a
third-degree felony. Appellant entered not guilty pleas.
{¶3} At trial, Ross County Sheriff’s Deputy Benjamin Roderick
testified that at approximately 4:30 p.m. on February 22, 2022,
dispatch notified him of a “burglary in progress” with two suspects
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and shots fired. Roderick arrived at the scene at 4:38 p.m. and
observed several people standing at the end of the driveway.
Roderick also observed a red and white Ford F 150 pickup truck in
the front yard with muddy tracks behind it and “several shotguns
and rifles and other miscellaneous items in the front.”
{¶4} Deputy Roderick spoke with Shane Morris, who yelled from
the house next door that “two individuals had run off into the
woods.” After he attempted to search the woods, Roderick called
for a canine and aviation unit. As officers prepared to deploy the
canine, a witness informed Roderick of an orange Honda Element down
the street that “appeared to be picking up two people that had
walked out of the wood line.” Roderick observed two individuals
enter the Honda and “tak[e] off.” After a slow-speed chase, the
Honda stopped and officers ordered the five occupants to exit.
Caitlynn Ratliff appeared “disheveled and dirty as if she had just
been walking through the woods, briars, mud on her pants and
shoes,” and appellant looked the same and had “mud on his boots and
. . . pants.”
{¶5} Michael LeMaster owns the home in question, but also
lived at another residence with his girlfriend. LeMaster stopped
at the home “about once a day and get my mail or every other day,”
and maintained the utilities. After Shane Morris called LeMaster,
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he drove to the scene and met with Morris and the sheriff’s
department. LeMaster noticed the “window was broke out.” The
suspects apparently entered the home through a broken window in the
garage (no door in the garage connected to the house). “They broke
the gun case, the glass out of the gun case and stuff.” The
burglars removed the drawer from the nightstand. LeMaster observed
that guns, ammunition, coins, knives, and jewelry were also
missing. Outside, “they took a bicycle and motorcycle out of the
garage and put it out in the back.” In addition, LeMaster noticed
the red and white pickup truck stuck in the front yard and looked
inside the cab, where he saw “everything you got in these
pictures,” meaning the items stolen from his home.
{¶6} LeMaster stated that he last visited the property “a day
or two before,” and that Caitlyn Ratliff, “the mother of
[LeMaster’s] grandkids,” had previously visited the home.
LeMaster, however, did not permit Ratliff or anyone else to enter
his home or remove anything.
{¶7} On cross-examination, counsel asked LeMaster if he used
this home for “storage” of personal property, to which LeMaster
replied, “No. All my furniture and stuff is still in there.”
LeMaster agreed that the property was “unoccupied,” but added that
he kept clothes there. LeMaster also acknowledged that Ratliff
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ROSS, 23CA15
would have known that no one resided at the property. LeMaster
testified that when he visits the property, he “might be there two
or three hours, four hours,” and he could stay if he chose to.
{¶8} Ross County Sheriff’s Detective Brenton Davidson
testified that Ross County Sheriff’s Captain Stanley Addy
instructed him to investigate the incident. When Davidson arrived,
he observed officers gathered around an orange Honda Element.
Davidson inventoried the Element while Addy photographed the
contents, including a firearm. Davidson then drove to the
residence and photographed (1) the F-150 pickup truck stuck in the
mud in the front yard, (2) the residence, (3) the residence’s front
porch, (4) 12-gauge shotgun shells found in the gravel driveway
next to a package of wadding for muzzle loaders, (5) tire marks in
the front yard, (6) a gate “broken to gain entry to the back yard”,
(7) a cell phone Davidson found in “the back yard portion of the
residence,” (8) the truck’s interior, (9) “some trash bags that
were located inside the truck containing various items,” (10) some
items from the trash bag in the truck, (11) commemorative quarter
collection in one trash bag, (12) gun barrels, (13) shotgun shells
that came from a trash bag, (14) a firearm, (15) a broken window in
the attached garage that led to the kitchen, and (16) items on the
kitchen counter “that had been pushed off or moved.” Davidson
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ROSS, 23CA15
inventoried the F-150 pickup truck and transported the evidence to
the station. Davidson also explained that when he found a cell
phone in the driveway, he clicked the home button to determine the
cell phone’s owner and discovered it belonged to Shane Morris.
{¶9} Shane Morris testified that as he drove to the scrap
metal yard, he passed Mike LeMaster’s home and noticed “a strange
vehicle sitting in my buddy’s driveway.” Morris described it as “a
white and orange Ford F-150. It had been beat up, windows broke
out of it.” Morris called LeMaster to report this and continued to
the scrap yard. On his return, he again noticed the vehicle, so he
blocked it and “observed two people coming out of [the home]”
carrying “trash bags with stuff in it * * * so I knew they were
there robbing his house.”
{¶10} Morris tried to call 911 but could not connect, so he
took photos of the truck and license plate, and “then I observed
Mr. Stodgel get in the truck and then he rammed my vehicle and
tried to get around it and ... then he got stuck in the yard.”
Morris then exited his vehicle and appellant:
got out with a gun and I’m sitting there taking video of
him, he points a gun at my head and says give me your phone
so I’m like okay. I give him my phone. Then he jumps into
my Tahoe and I said man, you’re not taking my vehicle. He
said okay, you get in it and push me out. He wanted me to
push him out of the yard onto the road and I said okay.
So when I got into my vehicle, I just hurried up and backed
out of the driveway and took off and when I took off, he
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ROSS, 23CA15
fired two shots at me across the road.
{¶11} As Morris left the scene, appellant stood in the yard and
Caitlynn Ratliff sat in the truck. Morris said that “was the last
time I had saw them until they come out of the woods.” Morris then
drove to a friend’s home and asked his wife to call 911. When
Morris returned to speak with law enforcement, he observed two
people “come out of the woods and get in a car and I said right
there they are and ... the state highway patrolman took off after
them.”
{¶12} Captain Stanley Addy testified that he was training
Brenton Davidson as a new detective when dispatch summoned. At the
traffic stop of the orange Honda Element, Addy and Davidson
searched the Element with owner Leona Hickman’s consent. Addy
found loose coins, a Honda 4-Wheeler key, knives, jewelry, a
jewelry box, and a brown jacket with rolled up coins and a women’s
watch. Addy also found two 9 mm live cartridge shells on the
floorboard and observed the butt of what appeared to be a firearm
sticking out of the hatchback. Addy described the firearm as an
“intel firearms fire star plus.” Addy found two “loose rounds” in
the vehicle’s cabin and the magazine contained eight rounds.
LeMaster came to the scene and “identified all the items on the
seat [of the Element] as his from being out of his residence but he
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ROSS, 23CA15
claimed that this firearm was not his out of his residence.”
{¶13} Captain Addy also spoke with appellant, who advised Addy
that he had “hung himself. He did it this time.” Appellant
repeatedly stated that Steven, Leona, and Alexa had “nothing to do
with it” and were “just giving him a ride.” Addy told appellant
that Ratliff blamed him for entering the house. Appellant also
“admitted that the gun located in the back of Leona’s vehicle was
his.” Addy obtained appellant’s DNA sample and inquired about the
cell phone Detective Davidson found at the residence. Initially,
appellant stated that the phone in the Element belonged to him, but
“was out of minutes,” so he had another phone. However, the phone
Davidson found in the yard at the residence included a screen-saver
photo of Mr. Morris and his family. Addy also noted that appellant
and Ratliff “had mud on them. They appeared to be possibly going
through woods or laying in the dirt.” Addy explained heavy rains
had created significant mud. Addy also photographed Morris’s
vehicle and trailer and helped Davidson with evidence at the scene
of the burglary.
{¶14} Approximately six days later, Captain Addy and Detective
Davidson visited the jail at appellant’s request. During this
second interview
Mr. Stodgel advised me at this point that he wasn’t
completely honest with me the night of. He wanted to be
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ROSS, 23CA15
honest with me now. He was claiming that he sat in the
truck the whole time until Caitlynn had - let me back up.
He advised he was with a girl named Chloe earlier that day,
dropped her off and Caitlynn needed a ride to her baby’s
grandpa’s to pick some stuff up. They were supposed to
meet a Terry LeMaster and she was supposed to get some
items. He advised he took her there. He sat in the truck
and she goes out and goes around to the rear of the
residence and was gone forever, comes walking back to the
truck carrying a bag or bags. I can’t remember if he said
bag or bags - - one of them busted or ripped and she dropped
some items and he claimed he got out to help her pick the
items up and noticed some was shotgun shells or something
to that effect, I’m just going off memory here. And he’s
helping pick these items up to put in the truck, she’s
going back to the side of the house to get more items and
bringing back when an SUV . . .pulled in behind him, and
Caitlynn was hollering we got to go, we got to go. He said
he panicked, jumps in the truck, slips the clutch, hits it
when Caitlynn is telling him to drive through the yard so
he drives - - pulls into the yard, gets his truck stuck.
He gets out to try to talk with the guy . . . who is
hollering at him that they’re going to - - he’s calling
the Sheriff on him and they take off running and he hears
two shots as they run away, him and Caitlynn.
{¶15} Captain Addy added that appellant also told him he “did
not have a gun.” Addy, however, stated, “that’s not what you told
me on the night of the stop,” and explained that appellant asked
him to play the recording, “so I played my recording of him
admitting the gun from the traffic stop located in the Element was
his and he, at that point, said I shouldn’t have told you that and
our interview was over.” Addy explained that, even though
appellant gave him a voluntary DNA sample at the scene, Addy did
not send the sample along with the firearm found in the Element for
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testing because appellant admitted at the scene that he owned the
weapon. Addy also explained that officers did not fingerprint the
residence because Ratliff had been in the house prior to the
incident, and witnesses observed them both “packing stuff from the
rear of the house out.” In addition, LeMaster told officers that
many of the stolen items belonged to his deceased wife, and Addy
described LeMaster as “very distraught.” Addy explained, “I didn’t
feel the need to go in there and defile or ruin any more of Mr.
LeMaster’s deceased wife’s property by ruining anything with black
powder dust.” In addition, Ross County Sheriff’s Evidence and
Property Technician Thomas Hamm testified that he test-fired the
semi-automatic weapon and found it fully operational.
{¶16} At the close of appellee’s case, appellant made a Crim.R.
29 motion for judgment of acquittal and argued that the burglary
charge should be dismissed because the structure’s owner testified
it was unoccupied. In addition, appellant requested that one
aggravated robbery charge be dismissed because “only one individual
testified that they were robbed.” The trial court denied the
motion.
{¶17} Appellant testified in his own defense that he “was
asleep at my Mom’s, me and my fiancee Alexa Belkey,” and when they
awoke, Belkey’s “forehead was swelled up” with an infection.
11
ROSS, 23CA15
Because Belkey needed medical attention, appellant called Leona
Hickman to drive her to the hospital. While Hickman and Steve
Hickock drove Belkey to the hospital, appellant visited Chloe
Sheffield and “sat there with Chloe for a little bit and Chloe
didn’t have no cigarettes.” Because appellant only had “a couple,”
he told Sheffield he would “take her to Bainbridge and get her
some.” Appellant stated that he and Sheffield were halfway to
Bainbridge when Caitlynn Ratliff called and asked if he could stop
at her home. Appellant and Sheffield then drove to a gas station
and “put twenty dollars in gas, bought two packs of cigarettes,”
then visited Ratliff. Appellant described Ratliff as “just a
friend. I go over to her house and shoot tattoos [creating and
applying tattoos].”
{¶18} Appellant explained that the previous night, he visited
Ratliff’s house to tattoo Ratliff’s neck when she repeatedly asked
him to “take her to her kids’ grandfather’s house to pick some
property up of hers that she didn’t want to get ruined.” Appellant
refused because it was 1:30 or 2:00 in the morning, and he had a
borrowed truck that “didn’t have good tags on it.” Appellant also
clarified, “I don’t got a license.”
{¶19} Appellant stated that he visited Ratliff the next day and
she “kept begging me” to take her to LeMaster’s home, so appellant
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and Ratliff dropped off Chloe Sheffield and drove to LeMaster’s
home. Appellant explained that Ratliff told him that LeMaster
“wasn’t there yet,” but said, “my stuff is already sitting out here
and he told me to go ahead and get it.” Appellant testified that
Ratliff left the truck for five or ten minutes and returned with a
black trash bag with pants hanging out. A couple of boxes also
fell from the trash bag, and appellant noticed shotgun shells.
Appellant stated that Ratliff retrieved another “load” when Morris
pulled in. Appellant also explained that the clutch slipped and
the truck jumped and I struck dude’s truck and she
[Ratliff] told me to just pull out through the yard, so I
tried to go through the yard and I got stuck. He was out
of the truck screaming I’m calling the Sheriff, I’m calling
the Sheriff, and I tried to get out and tell him what was
going on and when I did, she jumped out of the truck and
took off running. So he jumped in the truck and backed up
and he took off up the road. I didn’t know what to do. I
was scared. I got back in the truck and I shut it off and
I left too.
{¶20} Appellant maintained that he “never one time entered that
residence,” denied he possessed a gun, denied he threatened Morris,
and denied he possessed Morris’s cell phone. Appellant said that
once he entered the wood line, he ran when he heard a 12-gauge
shotgun blast come from the house area. Appellant explained that
he ran through the woods, called Alexa Belkey, told her his truck
was stuck and asked for a ride. Soon thereafter, Leona Hickman,
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Steve Hickock, and Belkey picked up appellant.
{¶21} Appellant further testified that he owned two phones on
February 22, 2022, but claimed he did not possess Morris’ cell
phone. Appellant also stated that when Captain Addy spoke to him
at the jail, he told him “what actually happened.” Appellant
explained:
Alex had to go to the hospital that morning. Leona took
her to the hospital. I went to Chloe’s and I went to
Bainbridge to get cigarettes and gas and once I went to
get cigarettes and gas ... Caitlyn Ratliff had called me,
asked me to come over there. She needed to go pick her
stuff up from her kid’s grandfather’s and I told her I
would give her a ride after I denied it the day before, so
then she got in the truck with me and Chloe and once me
and Chloe went, we dropped Chloe off so she could go to
her Mom’s wedding and on the way - - yeah, to South Salem,
we dropped Chloe off and then went to Frankfort and once
we got there, we sat there maybe ten minutes and she got a
text. She said her stuff was already sitting out there,
she could get it. She went around back and was gone maybe
five, ten minutes, come back with a trash bag. It ripped.
I got out, helped her get it, the stuff off the ground.
She put the bag in the truck and went back around the side
and come back with an armload of stuff and that’s when the
white truck pulled in. I slipped a clutch, pulled in the
yard, and I got out and tried to speak with him. He said
he was calling the sheriff and then he jumped in his truck
and backed up and took off and she had ran into the woods.
{¶22} Appellant denied that he or Ratliff entered the property,
denied he intended to commit a crime when he visited the property,
and denied he discharged a firearm during the series of events. On
cross-examination, appellant conceded he has “numerous prior felony
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convictions.” Appellee noted a (1) 2018 Marion County illegal
conveyance of a drug of abuse into a detention facility conviction,
(2) a 2012 Fayette County weapon under disability conviction, (3) a
2012 Fayette County grand theft of firearms conviction, (4) a
Fayette County safe-cracking conviction, (5) a Fayette County
possession of criminal tools conviction, and (6) a Highland County
aggravated robbery with a gun specification conviction. Appellee
then asked if appellant “found [himself] in a similar situation” in
this case, to which appellant replied, “No, Ma’am.”
{¶23} Appellant maintained that on the day in question, he
stayed in the truck other than to help Caitlynn Ratliff collect
items that fell from the ripped trash bag. He also observed
Ratliff with a blanket covering items. Appellant said he observed
pants, “a couple little tin boxes,” and “some shotgun shells” fall
out of the trash bag. Appellant also testified that he
“accidentally” backed into Shane Morris. Appellant explained that
when Morris said he planned to call the sheriff, Ratliff “got
scared” and they ran into the woods and then “went up the road
because we didn’t stay back there because somebody come and shot a
gun... into the woods.” Appellant believed Morris shot into the
woods. Appellant also admitted he told Captain Addy he owned the
firearm found in the Honda Element.
[Cite as State v. Stodgel, 2024-Ohio-5182.]
{¶24} Alexa Belkey testified that she is appellant’s fiancee
and that Caitlynn Ratliff is a friend. At Ratliff’s apartment on
February 21, 2022, appellant “was giving tattoos” when Ratliff
asked for a ride, but it was late. Appellant and Belkey “just
decided to go home.” Belkey did not overhear the discussion
regarding where Ratliff wished to go because she “went to the
emergency room.” Belkey then received a call from appellant on the
evening of February 22 when “he had asked for us to come help him
get his truck out of the mud.” Belkey rode with Leona Hickman and
a man named Hickock to the scene and picked up appellant while “it
was still daylight, so evening time.” Belkey stated that, after
the group picked up appellant, police conducted a traffic stop and
“pulled us all out one by one” to question them. Belkey said law
enforcement “asked why I was there and I said that his truck was
stuck in the mud and that’s what we were there for.” Belkey denied
being asked to participate in a burglary. On cross-examination,
Belkey admitted that she did not know appellant was with Ratliff or
Chloe Sheffield on February 22 after Belkey visited the hospital.
Belkey also stated that she did not know what appellant did between
the time she went to the hospital in the early afternoon and when
the group picked up appellant later that evening. At that
juncture, the defense rested and appellee called two rebuttal
witnesses.
[Cite as State v. Stodgel, 2024-Ohio-5182.]
{¶25} Shane Morris, appellee’s first rebuttal witness,
testified that, after appellant rammed his Chevy Tahoe with the
Ford pickup truck, Morris drove to his friend’s house and his
friend drove him to the property ten to fifteen minutes later.
During that time, Morris called the police. Morris also stated
that he did not fire a weapon at the property or even have a
firearm with him that day.
{¶26} Appellee also called Detective Davidson in rebuttal.
Davidson testified that when he collected the trash bag from the F–
150 truck stuck in the yard, it did not appear to have any tears or
rips. Davidson stated, “from my vehicle into the law complex, I
used that as one of the main bags to carry because there was so
many other loose items to put on the cart. . . the bag was well
intact.” Davidson further testified that after they removed,
inventoried, and photographed the items from the bag, he discarded
the bag.
{¶27} After deliberation, the jury found appellant guilty of
(1) one count of aggravated robbery in violation of R.C. 2911.01, a
first-degree felony, (2) one count of aggravated robbery in
violation of R.C. 2911.01, a first-degree felony, and (3) one count
of burglary in violation of R.C. 2911.12, a third-degree felony.
In addition, appellant waived his right to jury trial and elected a
[Cite as State v. Stodgel, 2024-Ohio-5182.]
bench trial for the weapons under disability charge and, after
hearing the evidence, the court found him guilty of the weapons
charge. Moreover, the court determined that pursuant to R.C.
2941.149(B), appellant is a repeat violent offender as specified in
counts one and two.
{¶28} The trial court sentenced appellant to (1) serve an 11 to
16.5-year prison term for count one aggravated robbery, 2) serve an
11 to 16.5.-year prison term for count two aggravated robbery, (3)
serve the prison terms for counts one and two consecutively for a
total 40-year minimum to a 45.5-year maximum, (4) serve a 24-month
prison term for count four having a weapon while under disability,
to be served concurrently with counts one and two, including a
mandatory 2-year postrelease control term, (5) serve a new 489-day
prison term for a postrelease control violation pursuant to R.C.
2929.141(A)(1)[appellant served a postrelease control term at the
time of the commission of these felonies], to be served
consecutively to the terms imposed on counts one and two, (6) serve
a 2 to 5-year postrelease control term, and (7) pay $1,784.72
restitution to Shane Morris. The trial court also merged Counts 1
and 3, and appellee elected to sentence on Count 1. This appeal
followed.
I.
[Cite as State v. Stodgel, 2024-Ohio-5182.]
{¶29} In his first assignment of error, appellant asserts that
his trial counsel rendered ineffective assistance of counsel in
violation of his constitutional guarantees. Specifically,
appellant contends that counsel failed to prevent any mention to
the jury of the repeat-violent-offender specification and the
weapon-under-disability count and failed to prevent the admission
of appellant’s extensive criminal history for impeachment purposes.
{¶30} The Sixth Amendment to the United States Constitution and
Article I, Section 10 of the Ohio Constitution provide that
defendants in all criminal proceedings shall have the assistance of
counsel for their defense. The United States Supreme Court has
generally interpreted this provision to mean a criminal defendant
is entitled to the “reasonably effective assistance” of counsel.
Strickland v. Washington, 466 U.S. 668 (1984).
{¶31} To establish constitutionally ineffective assistance of
counsel, a defendant must show that (1) his counsel's performance
was deficient and (2) the deficient performance prejudiced the
defense and deprived the defendant of a fair trial. See
Strickland, 466 U.S. at 687; State v. Myers, 2018-Ohio-1903, ¶ 183;
State v. Powell, 2012-Ohio-2577, ¶ 85. “Failure to establish
either element is fatal to the claim.” State v. Jones, 2008-Ohio-
968, ¶ 14 (4th Dist.). Moreover, if one element is dispositive, a
[Cite as State v. Stodgel, 2024-Ohio-5182.]
court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378,
389 (2000).
{¶32} The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.’
” Padilla v. Kentucky, 559 U.S. 356, 366 (2010), quoting
Strickland, 466 U.S. at 688. Prevailing professional norms dictate
that “a lawyer must have ‘full authority to manage the conduct of
the trial.’ ” State v. Pasqualone, 2009-Ohio-315, ¶ 24, quoting
Taylor v. Illinois, 484 U.S. 400, 418 (1988).
{¶33} Further, “the performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688. Accordingly, “[i]n
order to show deficient performance, the defendant must prove that
counsel's performance fell below an objective level of reasonable
representation.” State v. Conway, 2006-Ohio-2815, ¶ 95 (citations
omitted). In addition, when considering whether trial counsel's
representation amounts to deficient performance, “a court must
indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689. Thus, “the defendant must overcome the
[Cite as State v. Stodgel, 2024-Ohio-5182.]
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. Additionally, “[a]
properly licensed attorney is presumed to execute his duties in an
ethical and competent manner.” State v. Taylor, 2008-Ohio-482, ¶
10 (4th Dist.), citing State v. Smith, 17 Ohio St.3d 98, 100
(1985). Therefore, a defendant bears the burden of showing
ineffectiveness by demonstrating that counsel's errors were “so
serious” that counsel failed to function “as the ‘counsel’
guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S. at
687; e.g., State v. Gondor, 2006-Ohio-6679, ¶ 62; State v. Hamblin,
37 Ohio St.3d 153, 156 (1988).
{¶34} To establish prejudice, a defendant must demonstrate that
a reasonable probability exists that “but for counsel's errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine the outcome.”
Strickland, 466 U.S. at 694; e.g., State v. Short, 2011-Ohio-3641,
¶ 113; State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three
of the syllabus; accord State v. Spaulding, 2016-Ohio-8126, ¶ 91
(prejudice component requires a “but for” analysis). “ [T]he
question is whether there is a reasonable probability that, absent
the errors, the factfinder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U.S. at 695. Further, courts
ordinarily may not simply presume the existence of prejudice but
[Cite as State v. Stodgel, 2024-Ohio-5182.]
must require a defendant to establish prejudice affirmatively.
State v. Clark, 2003-Ohio-1707, ¶ 22 (4th Dist.).
{¶35} Moreover, we have recognized that speculation is
insufficient to establish the prejudice component of an ineffective
assistance of counsel claim. E.g., State v. Tabor, 2017-Ohio-8656,
¶ 34 (4th Dist.); State v. Jenkins, 2014-Ohio-3123, ¶ 22 (4th
Dist.); State v. Simmons, 2013-Ohio-2890, ¶ 25 (4th Dist.); State
v. Halley, 2012-Ohio-1625, ¶ 25 (4th Dist.); State v. Leonard,
2009-Ohio-6191, ¶ 68 (4th Dist.); accord State v. Powell, 2012-
Ohio-2577, ¶ 86.
Repeat Violent Offender Specification & Weapon Under Disability
{¶36} Appellant contends that his trial counsel provided
ineffective assistance when he failed to prevent any mention to the
jury of the repeat-violent-offender specification and the weapon-
under-disability count. Appellant argues that, although counsel
attempted to prevent the jury from learning that appellant faced
the repeat-violent-offender specifications and the weapons-under-
disability count by opting to try those charges to the judge,
because he did not resolve that issue prior to opening statements
the prosecution mentioned those charges during its opening
statement. Appellant deems counsel’s failure constitutionally
[Cite as State v. Stodgel, 2024-Ohio-5182.]
deficient because, he contends, once the jury hears that those
charges exist, the jury knows that appellant is a violent felon,
particularly when appellee detailed the prior violent felony
“having been convicted of a felony offense of violence, aggravated
robbery, in violation of R.C. 2911.01 of the Ohio Revised Code, out
of Highland County Court of Common Pleas on August 31st of 2006.”
Moreover, appellant argues that the prior conviction is for the
same crime for which appellee charged him in the case at bar, which
aggravated counsel’s failure.
{¶37} Appellee, on the other hand, argues that in the instant
case appellant’s counsel did, as a trial tactic, choose to try to
the bench the repeat-violent-offender specification and the weapon-
under-disability count. Immediately after the court seated the
jury, during a bench conference the following exchange occurred:
BREHM: We want to try the W.U.D. to the bench.
COURT: What’s that?
BREHM: We want to try the W.U.D. to the bench.
COURT: Okay. So, you’re not -
BREHM: I thought we would take a break before we did this.
I just want to talk to him about pleading no contest to
the W.U.D. but I will just waive it, and just try it to
the bench.
COURT: Just the weapons under disability, but you’re still
left with two specifications you know that.
BREHM: I think the - I think the - the RVO specs is those
[Cite as State v. Stodgel, 2024-Ohio-5182.]
aren’t heard by the jury is my understanding.
SCHUMAKER: Yes, but you have firearm specifications as
well.
BREHM: Yeah, but the gun specs- the gun specs are his
convictions from his prior record so that’s why we try that
to the bench strategy wise. I mean it’s all done in the
past.
COURT: Ms. Schumaker.
SCHUMAKER: I still have to -
COURT: What?
SCHUMAKER: I still have to put it under the evidence of
the RVO.
COURT: I agree. So it – I mean unless – I mean – yeah,
she still has to present the evidence so you want to waive
on the weapons under disability and have additional
portions of the trial outside the presence of the jury?
BREHM: I’m sorry, what’s your question, sir?
COURT: So do you anticipate you’re going to waive the jury
for only Count Four.
BREHM: Yes.
COURT: And then you want to have a portion of this trial
held outside the presence of the jury?
BREHM: No, sir. I think you will hear that simultaneously
with the evidence.
SCHUMAKER: I don’t know that they’re going to be elements
that you would hear outside of the jury -
COURT: I don’t know how -
SCHUMAKER: that the jury wouldn’t hear. I mean if you
don’t want to seem -
[Cite as State v. Stodgel, 2024-Ohio-5182.]
COURT: I don’t see how that - there’s going to be cross-
pollination if you will on evidence without question
because of the nature of the other charges. Now, if you’re
waiving consideration and asking the Court to simply make
that - take that Count - what you’re asking to take that
Count away from the jury, have them make the determination
on One, Two, and Three, and the Court on Four?
BREHM: Certainly.
COURT: Is that what you’re asking?
BREHM: Yeah. Yeah.
COURT: I’ve never had anybody do it that way before but I
think you can waive the jury for purposes of the court
making the - - I am going to question your client to make
sure he understands and consents outside the presence of
the jury.
BREHM: Yes, sir. I was trying to keep a portion of that
off out of their ear but I’ll talk to him more about it
and see.
COURT: I’m still not sure how your - -
SCHUMAKER: Yeah. I still present the same evidence.
COURT: It’s still going to be the same for those specs.
BREHM: Okay. I’ll talk to him about it. Can I have five
minutes and I’ll talk to him for a bit? It’s what we had
discussed before and he wanted me to do that so - -
COURT: It just - - how long - - I can’t imagine you guys
don’t have a super long opening, right. My intent is to -
-
BREHM: My opening will be super quick.
COURT: Do you want to talk to him a minute before you open;
is that what you’re asking me?
BREHM: She’s going to go through her opening and we can
talk during this.
25
ROSS, 23CA15
COURT: How about this. You talk to him after we do the
opening.
BREHM: We’ll do it that way.
COURT: If we need to do anything on the record before I
bring them back in afterwards -
BREHM: Okay, okay. That works. Thank you.
COURT: Okay.
BREHM: Yeah, thank you.
{¶38} As appellee also points out, after the bench conference
and before the parties gave opening statements, the trial court
instructed the jury: “remember that Opening Statements are designed
to explain to you what each attorney thinks the evidence will or
will not show and what the case is going to be about. The
statements of counsel in and of themselves are not evidence, just a
preview of what they think the evidence will be.” The parties then
gave opening statements and appellee referenced the charges during
opening statement:
There is a specification of - - repeat violent offender
specification finding that the offender, Brandon C.
Stodgel, is a repeat violent offender as defined in Section
2921 - - or 2929.01 of the Ohio Revised Code, having
previously been convicted of aggravated robbery, section
2911.01 of the Ohio Revised Code, a first degree felony
offense of violence, in the Court of Common Pleas, Highland
County, Ohio, on or about August 31st, 2006.
26
ROSS, 23CA15
In addition, appellee referenced the repeat violent offender
specification in Count 2, the firearm specification to Count 1, and
the weapon under disability prior conviction from Highland County.
{¶39} After appellant’s opening statement, the court held a
bench conference and stated, “defense counsel has indicated to the
Court that the defendant wishes to waive his right to a jury on
counts one and two with regard to the two specifications, each of
those containing a repeat violent offender specification and a
firearm specification. Is it the firearm as well or do you wish to
- -” Defense counsel then stated, “It would just be the RVOs.”
The court then stated, “Just the RVO, okay. So that I understand,
you’re waiving for the Repeat Violent Offender specification on
Counts One and Two and also waiving his right to a jury trial on
Count Four, the weapons under disability, and opting instead for
the court to determine whether the state has proven the RVO specs
and Count Four beyond a reasonable doubt; is that correct?”
Counsel agreed. In addition, counsel stated, “We would stipulate
to the convictions that would give rise to the RVO specification
and also the weapon under disability charge in Count Four.”
{¶40} Appellee contends (1) that trial counsel adopted a
strategy to try these charges to the bench so the jury did not hear
27
ROSS, 23CA15
any evidence or review any exhibits related to these charges, and
(2) the trial court clearly explained to the jury that counsel’s
remarks are not evidence. Thus, appellee argues that trial counsel
employed a trial strategy to try those offenses to the bench to
eliminate the requirement to prove the prior convictions, even
though the timing of the decision to try the cases to the judge may
not have been ideal. Thus, after the brief mention of the charges
in opening statement, appellee made no reference to the charges
during appellee’s case.
{¶41} In order to find that appellant’s trial counsel performed
ineffectively, appellant must establish prejudice. In other words,
appellant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland at 694. A “reasonable
probability” is more than “some conceivable effect,” but less than
“more likely than not [the error] altered the outcome of the case.”
Strickland at 693. A “reasonable probability” is a probability
sufficient to undermine confidence in the result of the proceeding.
Strickland at 690-691; Williams v. Taylor, 529 U.S. 362, 390-391
(2000).
{¶42} In State v. Bradford, 2020-Ohio-4563 (4th Dist.), we
28
ROSS, 23CA15
recognized that generally “[t]he existence of a prior offense is
such an inflammatory fact that ordinarily it should not be revealed
to the jury unless specifically permitted under statute or rule.”
Id. at ¶ 30, citing State v. Allen, 29 Ohio St.3d 53, 55 (1987).
However, “[w]hen a prior conviction is an element of the charged
offense, it may be admitted into evidence for the purpose of
proving that element.” Id., citing State v. Halsell, 2009-Ohio-
4166, ¶ 13 (9th Dist.); accord State v. Thomas, 2024-Ohio-2281, ¶
37 (4th Dist.).
{¶43} R.C. 2941.149 provides that “[t]he court shall determine
the issue of whether an offender is a repeat violent offender.”
Thus, by statute, the trial court determines the repeat-violent-
offender specification, not the jury. See State v. Hunt, 2013-
Ohio-5326, ¶ 76 (10th Dist.)(defendant may waive a jury on a weapon
under disability charge, but “by statute,” the repeat violent
offender specification “is to be determined by the court rather
than the jury”). Appellant contends, however, that mentioning the
repeat-violent-offender specifications to the jury caused him
prejudice.
{¶44} In the case sub judice, our review of the record reveals
that appellee adduced at trial overwhelming evidence to support the
29
ROSS, 23CA15
charges. Circumstantial evidence through the testimony of LeMaster
and Morris established that the home had been burglarized.
LeMaster testified to the forced entry through the garage and
viewed in appellant’s vehicle items from inside the home. Morris
observed appellant and Ratliff coming from the victim’s home
carrying bags. Morris testified that appellant rammed his vehicle,
robbed him of his cell phone at gunpoint, shot at Morris as he
drove away, and ran into the woods along with Ratliff. Officers
also found appellant’s vehicle in the front yard of the victim’s
home. In addition, appellant admitted to officers that he owned
the firearm found in the Honda Element, and that the other
occupants of the Element had “nothing to do with it.” Appellant
also informed Captain Addy immediately after his capture that he
“hung himself,” and that he “did it this time.”
{¶45} Moreover, the jury could certainly question the
credibility of appellant’s testimony and his second version of
events given to Captain Addy. See State v. Purdin, 2013-Ohio-22, ¶
19 (4th Dist.). A jury, sitting as the trier of fact, may choose
to believe all or part or none of the testimony of any witness who
appears before it. State v. Daniels, 2011-Ohio-5603, ¶ 23 (4th
Dist.) Thus, in the case sub judice, the jury could easily choose
30
ROSS, 23CA15
to believe that appellant fabricated his later statement to Addy
and his trial testimony. Further, officers found a firearm and
live ammunition in the car from which they apprehended appellant
approximately 20 minutes after the incident. Therefore, the jury
could also choose to disregard appellant’s contention that the only
evidence that appellant used a firearm is Morris’s testimony.
{¶46} It is well settled that debatable strategic and tactical
decisions may not form the basis of a claim for ineffective
assistance of counsel, even if a better strategy is available.
State v. Phillips, 74 Ohio St.3d 72, 85 (1995); State v. Lawrence,
2019-Ohio-2788, ¶ 19 (12th Dist.). Here, trial counsel should have
advised the trial court of his intentions prior to opening
statement. Nevertheless, we agree with appellee that, even if
trial counsel’s failure to prevent any mention to the jury of the
repeat-violent-offender specifications and the weapons-under-
disability count constituted ineffective assistance, appellant
failed to establish a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” State v. Spaulding, 2016-Ohio-8126, ¶ 153,
quoting Strickland at 694. Here, the record before us is replete
with evidence that appellant committed the charged crimes. Thus,
31
ROSS, 23CA15
pursuant to Spaulding, even if the failure to prevent the mention
of the repeat-violent-offender specifications and the weapons-
under-disability charge to the jury arguably fell below effective
representation, we do not believe appellant demonstrated prejudice.
State v. Jones, 2018-Ohio-1130, ¶ 18 (1st Dist.).
{¶47} Therefore, we are unpersuaded that the result would have
been different if the jury had not heard appellee’s opening
statement.
Admission of Criminal History for Impeachment Purposes
{¶48} Appellant also contends that he received ineffective
assistance of counsel when counsel failed to prevent the admission
of appellant’s criminal history for impeachment purposes.
Appellee, however, points out that counsel correctly acknowledged
at trial that appellant’s prior offenses would be admissible for
impeachment purposes if appellant chose to testify.
{¶49} “When an accused testifies at trial, Evid.R. 609(A)(2)
allows the state to impeach the accused's credibility with evidence
that the accused was convicted of an offense punishable by
imprisonment in excess of one year and if the court determines that
the probative value of the evidence outweighs the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.”
32
ROSS, 23CA15
State v. Bryan, 2004–Ohio–971, ¶ 132; State v. Dickess, 2008–Ohio–
39, ¶ 38 (4th Dist.). “The existence of a prior offense is such an
inflammatory fact that ordinarily it should not be revealed to the
jury unless specifically permitted under statute or rule. The
undeniable effect of such information is to incite the jury to
convict based on past misconduct rather than restrict their
attention to the offense at hand.” State v. Allen, 29 Ohio St.3d
53, 55 (1987).
{¶50} Consequently, a trial court must consider the prejudicial
effect of prior offense impeachment evidence even when such
evidence may be properly presented to the jury. Evid.R. 609(A)(2).
Furthermore, the risk of unfair prejudice is greater when the prior
conviction is for the same crime with which a defendant is
presently charged. The natural tendency of prior conviction
evidence in this situation is to instill in the jurors’ minds the
idea that “ ‘if he did it before, he probably did it this time.’ ”
State v. Goney, 87 Ohio App.3d 497, 502, (2nd Dist.1993), quoting
Gordon v. United States, 383 F.2d 936, 940 (C.A.D.C.1967).
Therefore, “ ‘those convictions which are for the same crime should
be admitted sparingly.’ ” Id.33
ROSS, 23CA15
{¶51} Evid.R. 609, Impeachment by Evidence of Conviction of
Crime, provides:
For the purpose of attacking the credibility of a witness:
* * *
(2) Notwithstanding Evid.R. 403(A), but subject to Evid.R.
403(B), evidence that the accused has been convicted of a
crime is admissible if the crime was punishable by death
or imprisonment in excess of one year pursuant to the law
under which the accused was convicted and if the court
determines that the probative value of the evidence
outweighs the danger of unfair prejudice, of confusion of
the issues, or of misleading the jury.
(3) Notwithstanding Evid.R. 403(A), but subject to Evid.R.
403(B), evidence that any witness, including an accused,
has been convicted of a crime is admissible if the crime
involved dishonesty or false statement, regardless of the
punishment and whether based upon state or federal statute
or local ordinance.
{¶52} As appellee observes, the Notes to Evid.R. 609 provide
that the “high probative value of convictions [involving dishonesty
and false statements] in assessing credibility,” pursuant to
Evid.R. 609(A)(3) are usually not excluded because of unfair
prejudice. However, many courts have concluded that “[c]ourts
routinely allow prior conviction evidence under Evid.R. 609(A)(2)
even if the prior conviction did not contain an element of
untruthfulness.” State v. Topping, 2012-Ohio-5617 (4th Dist.),
citing e.g., State v. Brown, 2003–Ohio–5059, ¶ 27 (no abuse of
34
ROSS, 23CA15
discretion to allow evidence of prior drug convictions to impeach
aggravated murder defendant's credibility); State v. Benitez, 2011–
Ohio–5498, ¶ 66 (8th Dist.)(evidence regarding accused's prior
felonious assault conviction); State v. Sailor, 2004–Ohio–5207, ¶
39 (8th Dist.) (no abuse of discretion to permit evidence of
accused's prior drug-related convictions in aggravated murder
trial). Moreover, as we held in Topping, to require a prior
conviction to be specifically probative of truthfulness would
defeat the purpose of Evid.R. 609(A)(2) and render Evid.R.
609(A)(3)1 meaningless. Topping at ¶ 45.
{¶53} Furthermore, when a defendant testifies prior crimes that
involve dishonesty and moral turpitude are generally not subject to
weighing the probative value against possible prejudice. State v.
Lamp, 2021-Ohio-2354, ¶ 62 (7th Dist.), citing Evid.R. 609(A)(3),
excluding Evid.R. 403(B). For example, theft and receiving stolen
property are crimes of dishonesty under Evid.R. 609(A)(3). Lamp,
supra, citing State v. Turner, 2004-Ohio-1545, ¶ 88 (7th
Dist.)(aggravated robbery and theft); State v. Brown, 85 Ohio
App.3d 716, 726 (3d Dist. 1993) (aggravated burglary, grand theft,
and receiving stolen property); State v. Johnson, 10 Ohio App.3d
14, 16 (10th Dist. 1983) (petty theft and attempted receiving
35
ROSS, 23CA15
stolen property); State v. Taliaferro, 2 Ohio App.3d 405, 406-407,
(5th Dist. 1981) (petty theft and attempted receiving stolen
property). Burglary or breaking and entering also fall into the
category of crimes of dishonesty. Lamp, id, citing State v. Ewing,
2006-Ohio-5523, ¶ 24 (10th Dist.) (burglary); State v. Wright, 1998
WL 355862 (7th Dist. June 24, 1998) (burglary); State v. Tolliver,
33 Ohio App.3d 110, 113, (5th Dist. 1986) (attempted breaking and
entering).
{¶54} In the case at bar, we do not believe that trial counsel
provided ineffective assistance when counsel failed to object to
the admission of appellant’s criminal history for impeachment
purposes. As appellee points out, appellee only asked the
permitted information regarding the offenses, such as “the name of
the crime [and] the time and place of the conviction.” Topping at
¶ 52, citing McCormick on Evidence (4th Ed.1992 Strong) 57, Section
42. Here, we believe that the trial court could have reasonably
determined that appellant’s prior convictions constituted relevant
and probative evidence to impeach appellant's credibility and the
probative value outweighed any prejudicial effect. Thus, we do not
believe counsel provided deficient performance, nor do we find
prejudice.
36
ROSS, 23CA15
{¶55} Accordingly, we overrule appellant’s first assignment of
error.
II.
{¶56} In his second assignment of error, appellant asserts that
the trial court erred when it sentenced him to serve consecutive
sentences. Appellant argues that the record does not clearly and
convincingly support the sentence under R.C. 2929.14(C)(4) and R.C.
2953.08.
{¶57} Because the repeat-violent-offender specifications and
the firearm specifications must be consecutively imposed by
operation of law, appellant does not contest them. However,
appellant challenges the discretionary consecutive imposition of
the second aggravated robbery sentence that increased his total
prison sentence from 29-34 ½ years to 40-45 ½ years.
{¶58} R.C. 2953.08 governs appeals based on felony sentencing
guidelines. R.C. 2953.08(G)(2) states:
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
37
ROSS, 23CA15
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.
{¶59} “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.” Cross v. Ledford, 161 Ohio St.
469 (1954), paragraph three of the syllabus.
{¶60} Although appellant concedes that “there are plenty of
aggravating considerations supporting enhancements via consecutive
impositions, appellant contends that placing appellant’s
presumptive release date at age 76 rather than 65 is neither (1)
necessary to adequately protect the public, punish appellant, and
rehabilitate him, nor (2) the minimum sanction required to do so,
citing State v. Saxon, 2006-Ohio-1245, paragraphs one, two, and
three of the syllabus; State v. Gwynne I, 2019-Ohio-4761, ¶ 17;
38
ROSS, 23CA15
State v. Gwynne II, 2022-Ohio-4607, ¶ 1-2, 31, see also R.C.
2929.11. Appellant further argues that “[t]his is particularly
true given the five-and-a-half year administrative enhancement
available at the Ohio Department of Rehabilitation and Correction
(DRC). If Mr. Stodgel at age sixty-five somehow remains a threat,
DRC can hold him for another five-and-a-half years.”
{¶61} Appellee, however, points out that appellant does not
contend that the trial court failed to consider the R.C. 2929.11
factors, but rather argues that the sentence is excessive.
R.C. 2929.14(C)(4) provides:
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.
39
ROSS, 23CA15
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶62} “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 * * *.” State v. Bonnell, 2014-
Ohio-3177, ¶ 37. However, the court “has no obligation to state
reasons to support its findings” and has no obligation “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.; State v. Nolan,
2024-Ohio-1245, ¶ 18 (4th Dist.). “[A] word-for-word recitation of
the language of the statute is not required, and 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.” Bonnell at ¶ 29. “If the trial court fails to make the
requisite findings at the sentencing hearing, the imposition of
consecutive sentences is contrary to law even if the sentencing
entry includes the findings.” State v. Conn, 2023-Ohio-2669, ¶ 26
40
ROSS, 23CA15
(4th Dist.), citing State v. Brickles, 2021-Ohio-178, ¶ 9, 11 (4th
Dist.).
{¶63} In the case sub judice, our review of the sentencing
transcript reveals that the trial court made the appropriate R.C.
2929.11 and 2929.12 findings. As we recently held in Nolan, supra,R.C. 2953.08(G)(2) does not permit an appellate court to simply
conduct an independent review of a trial court’s sentencing
findings under R.C. 2929.12 or its adherence to the purposes of
felony sentencing under R.C. 2929.11. Nolan at ¶ 44, citing State
v. Bryant, 2022-Ohio-1878, ¶ 21, citing State v. Jones, 2020-Ohio-
6729, ¶ 41-42. Moreover, R.C. 2953.08(G)(2) does not allow an
appellate court 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. Bryant at ¶ 22, citing Jones at ¶ 31, 39.
{¶64} In the case sub judice, the sentencing hearing transcript
reveals that since age 20, (1) appellant has committed numerous
felony offenses, including violent offenses, (2) appellant pointed
a gun at Morris’s head when he took his cell phone after Morris
intervened during the robbery, (3) appellant served a postrelease
control term at the time of this offense, (4) appellant received
41
ROSS, 23CA15
additional charges for assaulting a law enforcement officer during
the pendency of this case, and (5) appellant took no responsibility
for his actions. Thus, in light of the foregoing, we do not
clearly and convincingly find that appellant’s sentence is contrary
to law.
{¶65} We also note that in his reply brief, appellant requests
this court to hold this decision until the Supreme Court of Ohio’s
decision in State v. Glover, 2023-Ohio-1153 (1st Dist.), appeal
allowed by State v. Glover, 2023-Ohio-2664. Glover is pending at
the Supreme Court of Ohio after oral arguments on February 7, 2024
and raises the following propositions of law: (1) Neither the trial
nor the appellate courts are required by R.C. 2929.14(C)(4) to
focus on a defendant’s aggregate prison term when imposing or
reviewing consecutive sentences, and (2) the clear and convincing
standard of review outlined in R.C. 2953.08(G)(2) does not allow
the court of appeals to substitute its judgment for that of the
trial court. As an intermediate appellate court, we are obligated
to follow the Ohio Supreme Court’s controlling authority. Although
we see no reason to hold this decision for the Supreme Court of
Ohio’s pending decision, we recognize and encourage appellant to
consider an appeal of the instant case to the Ohio Supreme Court to
42
ROSS, 23CA15
preserve the consecutive sentence issue until Glover is resolved.
{¶66} In the case sub judice, we point out that the sentence
the trial court imposed is within the statutory range. Further,
our review is limited, under R.C. 2953.08(G)(2)(a), to whether the
record clearly and convincingly does not support the trial court's
findings under R.C. 2929.14(C)(4).
{¶67} Accordingly, for all of the foregoing reasons, we
overrule appellant’s second assignment of error and affirm the
trial court’s judgment.
JU
DGMENT
AFFIRME
D.
ROSS, 23CA15
43
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall
recover of appellant the 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 Ross County Common Pleas Court to carry this judgment
into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.