State v. Holsinger , 2022 Ohio 4092 ( 2022 )

[Cite as State v. Holsinger, 2022-Ohio-4092.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
State of Ohio, : Case No. 21CA20
Plaintiff-Appellee, :
DECISION AND
v. : JUDGMENT ENTRY
Edward S. Holsinger, :
Defendant-Appellant. : RELEASED 11/15/2022
______________________________________________________________________
APPEARANCES:
Autumn D. Adams, Adams Legal, LLC, Toledo, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecutor, and Steven K. Nord, Assistant
Prosecuting Attorney, Ironton, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Edward S. Holsinger appeals from a judgment of the Lawrence County
Common Pleas Court convicting him of three counts of aggravated trafficking in drugs
and one count of possession of a controlled substance. Holsinger raises four
assignments of error asserting that the trial court abused its discretion when it denied his
motion for mistrial, that his aggravated trafficking convictions were against the manifest
weight of the evidence, that the trial court erred in sentencing him under the Reagan
Tokes Law because it is unconstitutional, and that the trial court failed to make the proper
findings to order consecutive sentences. For the reasons that follow, we overrule the
assignments of error and affirm the trial court’s judgment. However, because the trial
court made a clerical mistake when it failed to incorporate the consecutive sentence
Lawrence App. No. 21CA20 2
findings it made during the sentencing hearing into the sentencing entry, pursuant to
App.R. 9(E), we instruct the trial court to issue a nunc pro tunc sentencing entry which
includes the findings.
I. FACTS AND PROCEDURAL HISTORY
{¶2} The Lawrence County grand jury indicted Holsinger on five counts: (1)
aggravated trafficking in drugs on or about March 17, 2021 (Count One); (2) aggravated
trafficking in drugs on or about March 23, 2021 (Count Two); (3) aggravated trafficking in
drugs on or about April 6, 2021 (Count Three); (4) aggravated possession of drugs on or
about April 6, 2021 (Count Four); and (5) possession of a controlled substance on or
about April 6, 2021 (Count Five). Counts One through Four involved methamphetamine
and Count Five involved fentanyl. Holsinger pleaded not guilty, and the matter proceeded
to a jury trial.
{¶3} Detective Sergeant Aaron Bollinger testified that he works for the Lawrence
County Sheriff’s Office and is an investigator and supervisor for the Lawrence County
Drug and Major Crimes Task Force. Det. Bollinger testified that Shane Blanton was in
jail in connection with a drug-related case and had “some domestic issues and menacing
issues” and agreed to be a confidential informant for the task force. Blanton made
controlled drug buys from Holsinger at the Marlow Bar & Grille on March 17, 2021, and
March 22, 2021. Blanton received $100 compensation for each buy, and Det. Bollinger
believed he may have also received favorable treatment from the prosecutor’s office.
{¶4} Det. Bollinger testified that Blanton arranged the buys with Holsinger via
Facebook messages. The March 17, 2021 messages were between Blanton and
someone with the profile name “Eddie Holsinger” who had no profile picture. Blanton
Lawrence App. No. 21CA20 3
states that he is coming to “the [M]arlow” and wants to “play a game of 8 ball corner
pocket.” Blanton later states that he is about to come and is “bringin 175 [sic].” “Eddie”
responds, “I’ll tell u when [sic],” and later tries to call Blanton, but Blanton missed the call.
The March 23, 2021 messages were between Blanton and someone with the profile name
of “Eddie” who had a profile picture which is difficult to see in the exhibits. Det. Bollinger
testified the picture was of Holsinger. In the messages, Blanton states that he needs “2
balls later.” “Eddie” responds, “K.” Blanton asks, “[W]here u gonna be at this evening?”
“Eddie” responds, “Bar.” Blanton asks “how much” and suggests “200.” “Eddie” responds
“180” “4 esch [sic].” Blanton says, “[S]o 360?” “Eddie” says, “Yes.” Blanton requests “a
lil better deal than that [sic],” and “Eddie” responds, “170.” Det. Bollinger testified that a
“ball” or “eight ball” is approximately 3.5 grams of a drug, and in this case, the drug was
methamphetamine. Det. Bollinger did not take any measures to verify that the Facebook
account or accounts Blanton communicated with belonged to Holsinger.
{¶5} Det. Bollinger testified that Blanton was thoroughly searched before each
buy but could not say that the investigator who performed the searches moved Blanton’s
waistband. Blanton then received buy money and an audio-video recording device
monitored by Det. Bollinger in real time. In the video footage from both buys, Blanton
seems to interact with other people at the bar before he interacts with Holsinger. During
the first buy, Blanton hands money to Holsinger, and Holsinger moves as if putting it in a
pant pocket. Given the position of the camera, it is not clear whether Holsinger gives
anything to Blanton around the time of the money exchange. However, after accepting
the money, Holsinger can be seen unscrewing the top of a fake Budweiser can, hiding a
baggie filled with something inside of the can, and then screwing the top back on the can.
Lawrence App. No. 21CA20 4
During the second buy, Blanton hands money to Holsinger, and when Blanton moves his
hand away from Holsinger, a baggie can be seen in Blanton’s hand. Blanton later says,
“It’s a quarter right?” A voice which appears to be that of Holsinger says, “Yeah.” Blanton
says something like, “Your shit’s fire,” and the voice which appears to be that of Holsinger
responds, “Mine’s good.” Det. Bollinger testified that a “quarter would be like a quarter
ounce” which is the same as seven grams or “two eight balls.”
{¶6} On April 6, 2021, Det. Bollinger learned that Holsinger had been arrested
by the Ironton Police Department, and Det. Bollinger interviewed him. On the audio
recording of the interview, Holsinger tells Det. Bollinger that he was pulled over on the
way to a party. Det. Bollinger asks Holsinger about how much “dope” Patrolman Joe
Akers got off him, and Holsinger says, “He said 20 grams.” Det. Bollinger asks if it was
“crystal.” Holsinger says, “Yeah.” Det. Bollinger asks, “You bad on that stuff?” Holsinger
says that he is not and just likes it “once in a while.” Det. Bollinger observes that 20 grams
is a lot for someone who only likes it once in a while. Holsinger says, “We had about 20
people. We was gonna party.” Det. Bollinger asks about where Ptlm. Akers found “it” on
Holsinger. Holsinger says that Ptlm. Akers found “it” in a pill bottle under the vehicle. Det.
Bollinger asks, “Was it yours, Eddie?” Holsinger says, “Yes, it was.” Holsinger also
admits to having a “package of H” and “roaches.”
{¶7} Det. Bollinger tells Holsinger that his name has been “coming up more” as
being a “big time” seller. Holsinger claims he has not sold anything “major” and is the
“lowest man on the totem pole.” Det. Bollinger says, “Well, you’ve been selling balls
lately.” Holsinger says, “Balls?” Det. Bollinger says, “Yeah, three and a half grams.”
Holsinger says that he “probably sold a couple” but “nobody can afford it.” Det. Bollinger
Lawrence App. No. 21CA20 5
asks whether Holsinger does it “at the bar.” Holsinger says it is “wherever somebody
catches me at,” which might be at “the bar” or someone’s house. Det. Bollinger says that
he has seen Holsinger “holding” a half ounce or ounce at a time and knows that Holsinger
keeps it in a Budweiser container with a lid that screws off. Holsinger says, “Oh.”
{¶8} Blanton testified that he was charged with aggravated trafficking in drugs,
possession of drugs, and possession of criminal tools, and he contacted Det. Bollinger
because he hoped that if he was “up front and honest about where the drugs came from,”
he would get “a little leeway” on the charges. Blanton became a confidential informant
for the task force and made two buys from Holsinger. Blanton contacted Holsinger via
Facebook messenger and arranged to buy an eight ball of methamphetamine on March
17, 2021, and two eight balls of methamphetamine on March 23, 2021. During one buy,
Holsinger took the drugs from a diversion safe, i.e., a fake Budweiser can which was
hollow inside and had a removeable top, and put the money Blanton gave him in the can.
During the other buy, Holsinger took the drugs from a jacket pocket and put the money
Blanton gave him into that pocket. Blanton testified that usually during drug transactions,
money and drugs are exchanged at the same time, almost like the parties are “shaking
hands,” so the transaction “doesn’t look as obvious.” One of the buys from Holsinger
happened that way; the other did not but involved “something very similar” which “was
quick.” Blanton was paid $100 for each buy and “got help with” his criminal case.
{¶9} Ptlm. Akers of the Ironton Police Department testified that on April 6, 2021,
he conducted a traffic stop of a vehicle in which Holsinger was a back seat passenger.
Sergeant Bradley Spoljaric, who assisted with the stop, instructed Holsinger to exit the
vehicle. As Holsinger did so, Ptlm. Akers saw a pill bottle fall from a partially unzipped
Lawrence App. No. 21CA20 6
“black-like container pack” on Holsinger’s hip. Ptlm. Akers saw a crystal-like substance
in a clear baggie inside the pill bottle, placed Holsinger under arrest, and advised him of
his Miranda rights. Holsinger initially denied that the substance was his. Ptlm. Akers
testified that when he told Holsinger that he saw the pill bottle fall “off of his person,”
Holsinger said it contained methamphetamine but “[n]ever told” Ptlm. Akers “if it was all
his, if it wasn’t.” Later, Ptlm. Akers testified that at some point, Holsinger said the drugs
were his. Ptlm. Akers searched Holsinger and found a digital scale and more baggies
containing a crystal-like substance. Holsinger said the substance in the baggies was
methamphetamine. Ptlm. Akers weighed all of the methamphetamine recovered during
the traffic stop and determined its gross weight was 25 grams. Additional baggies
recovered from Holsinger contained heroin and fentanyl. Ptlm. Akers testified that in his
experience, people carry drugs in multiple baggies when they are transporting them for
sale and distribution to “several different people.”
{¶10} Sgt. Spoljaric of the Ironton Police Department testified that during the traffic
stop, he observed Holsinger sitting in the back seat of a vehicle. Sgt. Spoljaric saw a
partially smoked marijuana joint under Holsinger’s right leg and asked him to exit the
vehicle. While detaining Holsinger, Sgt. Spoljaric heard what sounded like a pill bottle hit
the ground. Holsinger went to pick it up but Sgt. Spoljaric asked him not to and finished
detaining him.
{¶11} Analysis by forensic scientists at the Ohio Bureau of Criminal Investigation
of the substances recovered from the controlled buys and traffic stop revealed the
following. The substance from the first buy contained methamphetamine and weighed
3.2 grams, plus or minus .04 grams. The substance from the second buy contained
Lawrence App. No. 21CA20 7
methamphetamine and weighed 7.04 grams, plus or minus .04 grams. The crystal-like
substances from the traffic stop contained methamphetamine and collectively weighed
20.87 grams, plus or minus .2 grams. Other substances from the traffic stop contained
fentanyl or fentanyl and heroin.
{¶12} The jury found Holsinger guilty on all counts. The trial court merged Counts
Three and Four, and the state elected to proceed to sentencing on Count Three. The
court sentenced Holsinger to 36 months in prison on Count One, 36 months on Count
Two, 8 to 12 years on Count Three, and 12 months on Count Five. The court ordered
that the sentences on Counts One and Two run consecutive to each other and to the
sentence on Count Three and that the sentence on Count Five run concurrent to the other
sentences.
II. ASSIGNMENTS OF ERROR
{¶13} Holsinger presents four assignments of error:1
I. Reagan Tokes is unconstitutional as it vests sentencing power in the
Executive Branch and fails to afford Holsinger access to an attorney at any
disciplinary hearing while he is [in] ODRC’s custody.
II. The Trial Court failed to make the proper findings to order consecutive
sentences.
III. It was an abuse of discretion for the Trial Judge to deny the defense’s
motion for mistrial.
IV. The convictions were against the manifest weight of the evidence.
For ease of discussion, we address the assignments of error in a different order.
1Some assignments of error are stated differently in the table of contents and body of Holsinger’s appellate
brief. We use the versions in the body of his appellate brief as they more closely match his arguments.
Lawrence App. No. 21CA20 8
III. MOTION FOR MISTRIAL
{¶14} In his third assignment of error, Holsinger contends that the trial court
abused its discretion when it denied his motion for a mistrial. “A trial court must declare
a mistrial only ‘when the ends of justice so require and a fair trial is no longer possible.’ ”
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198, quoting
State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). “An appellate court reviews
an order denying a motion for a mistrial for abuse of discretion.” Id. “A trial court abuses
its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”
State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “[T]o
establish that a trial court abused its discretion by failing to grant a mistrial, a ‘defendant
must demonstrate material prejudice.’ ” State v. Bertram, 4th Dist. Scioto No. 21CA3950,
2022-Ohio-2488, ¶ 46, quoting Adams at ¶ 198.
{¶15} Prior to voir dire, the trial court stated, “So motion to sequester witnesses?”
Defense counsel said, “There is a motion to sequester witnesses, Your Honor.” The trial
court granted the motion and stated, “Keep your witnesses apart.” After Ptlm. Akers
finished testifying, defense counsel asked the court that Sgt. Spoljaric and Ptlm. Akers
“remain sequestered from one another until we have had Sergeant Spoljaric’s testimony.”
The court said, “They’ve been ordered. A witness sequestration has been ordered.”
Defense counsel responded, “They’re talking currently.” Defense counsel moved for a
mistrial or in the alternative, to strike the testimony of Ptlm. Akers. The trial court denied
the motion and stated that it wanted to “see how this plays out” but that defense counsel
could renew the motion later. The prosecutor called Sgt. Spoljaric as the next witness
and asked whether he talked to Ptlm. Akers about the case that day. Sgt. Spoljaric
Lawrence App. No. 21CA20 9
testified, “No.” The prosecutor then asked Sgt. Spoljaric whether he discussed the case
with Ptlm. Akers after he finished testifying, and Sgt. Spoljaric testified, “He walked in,
said I’m going this way, and that’s the last time I seen him [sic].” Ptlm. Akers was not
recalled and questioned about the interaction.
{¶16} Holsinger asserts that the conversation between Ptlm. Akers and Sgt.
Spoljaric constituted a “direct violation” of the “order to separate the witnesses.” Holsinger
further asserts that it “seems the jury was exposed to this interaction.” He maintains that
he was “materially prejudiced” when the violation occurred, and the trial court “failed to
verify with both witnesses what was said.”
{¶17} Holsinger has not shown that he was materially prejudiced by the interaction
between Ptlm. Akers and Sgt. Spoljaric. Evid.R. 615(A) states that “at the request of a
party the court shall order witnesses excluded so that they cannot hear the testimony of
other witnesses, and it may make the order of its own motion.” The rule additionally states
that “[a]n order directing the ‘exclusion’ or ‘separation’ of witnesses or the like, in general
terms without specification of other or additional limitations, is effective only to require the
exclusion of witnesses from the hearing during the testimony of other witnesses.” Evid.R.
615(A). “A separation order does not forbid other conduct by witnesses, such as * * *
discussing the case with other witnesses outside the courtroom.” 2003 Staff Note, Evid.R.
615(A). “To the extent that a trial court, in the exercise of its discretion, determines to
order forms of separation in addition to exclusion, it remains free to do so, but it can do
so only by making the additional restrictions explicit and by giving the parties notice of the
specific additional restrictions that have been ordered.” Id. “Notice to the parties is
Lawrence App. No. 21CA20 10
required because, with the exception of contempt, sanctions for violation of the rule tend
to have their greatest effect on the parties, rather on the witnesses.” Id.{¶18} In this case, the trial court gave a general order directing the parties to keep
their witnesses “apart” but did not specify other or additional limitations. Consequently,
the court’s order was effective only to require the exclusion of witnesses from the
courtroom during the testimony of other witnesses. The order was not effective to
preclude Ptlm. Akers and Sgt. Spoljaric from conversing after Ptlm. Akers testified.
Moreover, the interaction between Ptlm. Akers and Sgt. Spoljaric did not violate the spirit
of the separation order because they did not discuss Ptlm. Akers’s testimony. Sgt.
Spoljaric testified that Ptlm. Akers merely announced the direction he was going.
{¶19} Holsinger cites no legal authority to support his suggestion that the trial
court had a duty to question Ptlm. Akers about the interaction to see whether his version
of it matched that of Sgt. Spoljaric. And we will not speculate that additional testimony by
Ptlm. Akers would have demonstrated material prejudice to Holsinger. Even if Ptlm.
Akers and Sgt. Spoljaric had discussed the case, it is difficult to see how the discussion
could have impacted the verdict. The most incriminating testimony Sgt. Spoljaric gave
after Ptlm. Akers spoke to him was that Sgt. Spoljaric heard what sounded like a pill bottle
hit the ground while detaining Holsinger and that Holsinger went to pick it up. Ptlm. Akers
testified that he saw the pill bottle fall out of a “container pack” on Holsinger’s hip and that
eventually Holsinger admitted the bottle contained methamphetamine which was his. And
during the recorded interview with Det. Bollinger, Holsinger admitted the
methamphetamine in the pill bottle was his. Therefore, even without Sgt. Spoljaric’s
Lawrence App. No. 21CA20 11
testimony there was ample evidence that the methamphetamine in the pill bottle belonged
to Holsinger.
{¶20} For the foregoing reasons, we conclude the trial court did not abuse its
discretion when it denied the motion for mistrial and overrule the third assignment of error.
IV. MANIFEST WEIGHT OF THE EVIDENCE
{¶21} In his fourth assignment of error, Holsinger contends that his convictions on
Counts One, Two, and Three were against the manifest weight of the evidence. In
determining whether a conviction is against the manifest weight of the evidence, an
appellate court
must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that reversal of the conviction
is necessary. In order to satisfy this test, the state must introduce
substantial evidence on all the elements of an offense, so that the jury can
find guilt beyond a reasonable doubt.
Although a court of appeals may determine that a judgment of a trial
court is sustained by sufficient evidence, that court may nevertheless
conclude that the judgment is against the weight of the evidence. However,
we are reminded that generally, it is the role of the jury to determine the
weight and credibility of evidence. “ ‘A jury, sitting as the trier of fact, is free
to believe all, part or none of the testimony of any witness who appears
before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-
Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No. 12CA3507,
2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary
weight and credibility issues because it is in the best position to gauge the
witnesses’ demeanor, gestures, and voice inflections, and to use these
observations to weigh their credibility.
(Citations omitted.) State v. Anderson, 4th Dist. Highland No. 18CA14, 2019-Ohio-395,
¶ 14-15.
Lawrence App. No. 21CA20 12
A. Statutory Provisions
{¶22} R.C. 2925.03(A) states:
No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled substance
analog;
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or
distribute a controlled substance or a controlled substance analog, when
the offender knows or has reasonable cause to believe that the controlled
substance or a controlled substance analog is intended for sale or resale by
the offender or another person.
“ ‘Sale’ includes delivery, barter, exchange, transfer, or gift, or offer thereof, and each
transaction of those natures made by any person, whether as principal, proprietor, agent,
servant, or employee.” R.C. 3719.01(U). See also R.C. 2925.01(A) (stating that as used
in R.C. Chapter 2925, “sale” has the same meaning as in R.C. 3719.01).
{¶23} R.C. 2925.03(C)(1) states that “[i]f the drug involved in the violation is any
compound, mixture, preparation, or substance included in * * * schedule II, * * * whoever
violates division (A) of this section is guilty of aggravated trafficking in drugs.” R.C.
2925.03(C)(1)(c) makes the offense a third-degree felony “if the amount of the drug
involved equals or exceeds the bulk amount but is less than five times the bulk amount.”
R.C. 2925.03(C)(1)(d) makes the offense a second-degree felony “if the amount of the
drug involved equals or exceeds five times the bulk amount but is less than fifty times the
bulk amount.” Methamphetamine is a schedule II controlled substance and is categorized
as a stimulant. Ohio Adm. Code 4729:9-1-02(C)(2). R.C. 2925.01(D)(1)(g) defines “bulk
amount” as “[a]n amount equal to or exceeding three grams of a compound, mixture,
preparation, or substance that is or contains any amount of a schedule II stimulant, or any
of its salts or isomers, that is not in a final dosage form manufactured by a person
Lawrence App. No. 21CA20 13
authorized by the Federal Food, Drug, and Cosmetic Act and the federal drug abuse
control laws.”
B. Count One
{¶24} Holsinger contends that his conviction on Count One, aggravated trafficking
in drugs on or about March 17, 2021, in violation of R.C. 2925.03(A)(1) and (C)(1)(c), was
against the manifest weight of the evidence. Holsinger asserts that the state failed to
prove beyond a reasonable doubt that he sold or offered to sell methamphetamine to
Blanton on that date. Holsinger maintains that the “only evidence” he did so was Blanton’s
testimony because the video footage from that date does not depict the interactions
Blanton had with others before he met with Holsinger or show Holsinger handing any
drugs to Blanton. According to Holsinger, the jury lost its way in believing Blanton’s
testimony because his “credibility is non-existent.” Holsinger asserts that “Blanton
contacted the police and offered to work with them as a way to save himself from his own
bad choices.” Blanton “volunteered that he could hand Holsinger to the police department
all wrapped up in a bow, and if he failed to do so then his sweet plea bargain deal would
go away.” Holsinger maintains that Blanton “fulfilled his end of the bargain, so he could
get what he wanted.”
{¶25} After weighing the evidence and all reasonable inferences, considering the
credibility of the witnesses after according the requisite deference to the jury’s
determinations, we conclude that in resolving evidentiary conflicts, the jury did not clearly
lose its way or create a manifest miscarriage of justice so that we must reverse the
conviction on Count One. The state presented evidence that on March 17, 2021,
Holsinger knowingly sold methamphetamine to Blanton and that the amount of the drug
Lawrence App. No. 21CA20 14
involved equaled or exceeded the bulk amount but was less than five times the bulk
amount. There is evidence that Blanton made arrangements with “Eddie Holsinger” via
Facebook to buy an “8 ball” of methamphetamine, i.e., approximately 3.5 grams, that day
and in fact met Holsinger. Prior to the meeting, law enforcement searched Blanton and
gave him buy money. Blanton testified that Holsinger gave him drugs during the meeting.
Laboratory testing revealed that the substance at issue contained methamphetamine and
weighed 3.2 grams, plus or minus .04 grams. Blanton recalled that during one buy,
Holsinger took the drugs from a fake Budweiser can and then put the buy money inside
the can. The video footage from the first buy shows Holsinger in possession of a fake
Budweiser can. Given the position of the camera, the footage does not show whether
Holsinger removed drugs from the fake can or gave them to Blanton. However, the
footage shows Blanton handing money to Holsinger, who appears to put it in a pant
pocket, and then shows Holsinger hiding a baggie containing a substance inside the fake
can. A few weeks later, Holsinger admitted to Det. Bollinger that he had “probably” sold
some “balls” recently. And when Det. Bollinger said he knew Holsinger stored drugs in a
fake Budweiser can, Holsinger did not deny the claim and simply said, “Oh.”
{¶26} Although Holsinger believes that Blanton is not credible, we find nothing
inherently incredible about his testimony that Holsinger sold him the drugs. There is
circumstantial evidence to support the testimony, and “we again emphasize that credibility
determinations are within the fact finder’s province.” State v. McIntosh, 4th Dist. Gallia
No. 17CA14, 2018-Ohio-5343, ¶ 53. The jury “was in the best position to weigh the
informant’s circumstances when it evaluated the informant’s credibility, and we should not
Lawrence App. No. 21CA20 15
second-guess its decision.” Id. Based on the foregoing, we conclude the conviction on
Count One was not against the manifest weight of the evidence.
C. Count Two
{¶27} Holsinger contends that his conviction on Count Two, aggravated trafficking
in drugs on or about March 23, 2021, in violation of R.C. 2925.03(A)(1) and (C)(1)(c), was
against the manifest weight of the evidence for the same reasons as Count One. After
weighing the evidence and all reasonable inferences, considering the credibility of the
witnesses after according the requisite deference to the jury’s determinations, we
conclude that in resolving evidentiary conflicts, the jury did not clearly lose its way or
create a manifest miscarriage of justice so that we must reverse the conviction. The state
presented evidence that on March 23, 2021, Holsinger knowingly sold methamphetamine
to Blanton and that the amount of the drug involved equaled or exceeded the bulk amount
but was less than five times the bulk amount.
{¶28} There is evidence that Blanton made arrangements with “Eddie,” who used
Holsinger’s picture as a profile picture, via Facebook to buy “2 balls” of
methamphetamine, i.e., approximately 7 grams, that day and in fact met Holsinger. Prior
to the meeting, law enforcement searched Blanton and gave him buy money. Blanton
testified that Holsinger gave him drugs during the meeting, and as we explained in the
previous section, the jury was free to believe Blanton’s testimony. Blanton recalled that
during one buy, the money and drugs were exchanged at the same time as if he and
Holsinger were shaking hands. Blanton also recalled that during one buy, Holsinger took
the drugs from a jacket pocket and put the money Blanton gave him into the same pocket.
In the video footage of the second buy, Holsinger is wearing a jacket. Blanton hands
Lawrence App. No. 21CA20 16
money to Holsinger, and when Blanton moves his hand away from Holsinger, a baggie
can be seen in Blanton’s hand. Blanton and Holsinger then discuss the amount and
quality of Holsinger’s product. Laboratory testing revealed that the substance at issue
contained methamphetamine and weighed 7.04 grams, plus or minus .04 grams. Based
on the foregoing, we conclude the conviction on Count Two was not against the manifest
weight of the evidence.
D. Count Three
{¶29} Holsinger contends that his conviction on Count Three, aggravated
trafficking in drugs on or about April 6, 2021, in violation of R.C. 2925.03(A)(2) and
(C)(1)(d), was against the manifest weight of the evidence.2 Holsinger asserts the state
failed to prove beyond a reasonable doubt that he intended to sell the methamphetamine
law enforcement found that day. Holsinger highlights the fact that he “stated he had the
drugs for a party he was attending with many other people.” Holsinger asserts that one
can reasonably infer from his statements that he planned to use the methamphetamine
“for personal use amongst the friends he was hanging out with, not that he was going to
sell the drugs.”
{¶30} After weighing the evidence and all reasonable inferences, considering the
credibility of the witnesses after according the requisite deference to the jury’s
determinations, we conclude that in resolving evidentiary conflicts, the jury did not clearly
lose its way or create a manifest miscarriage of justice so that we must reverse the
conviction on Count Three. The state presented evidence that on April 6, 2021, Holsinger
2One line of the indictment contains a scrivener’s error misidentifying the pertinent code sections as R.C.
2925.11(A)(2) and (C)(1)(d).
Lawrence App. No. 21CA20 17
knowingly transported methamphetamine when he knew it was intended for sale or resale
by him and that the amount of the drug involved equaled or exceeded five times the bulk
amount but was less than fifty times the bulk amount. Ptlm. Akers testified that during the
traffic stop that day, he saw a pill bottle, which contained a crystal-like substance inside
a clear baggie, fall from a partially unzipped container pack on Holsinger’s hip. Ptlm.
Akers testified that Holsinger eventually admitted the bottle contained methamphetamine
and that the drugs were his. Ptlm. Akers also testified that Holsinger was carrying
additional baggies containing a crystal-like substance, which Holsinger admitted was
methamphetamine. Ptlm. Akers testified that in his experience, people carry drugs in
multiple baggies when they are transporting them for sale and distribution to multiple
people. Later, Holsinger admitted to Det. Bollinger that the “crystal” in the pill bottle was
his. Laboratory testing revealed that the crystal-like substances recovered contained
methamphetamine. Although Ptlm. Akers testified that the substances collectively
weighed 25 grams and laboratory testing indicated they weighed 20.87 grams, plus or
minus .2 grams, both weights are within the range specified in R.C. 2925.03(C)(1)(d).
{¶31} The fact that Holsinger indicated the methamphetamine was for use by
himself and others at a party did not preclude a finding that he transported the
methamphetamine when he knew it was intended for sale or resale by him. The jury did
not have to believe the drugs were for personal use. Moreover, Holsinger did not say that
he intended to give the drugs to the other people at the party for free, and even if he had,
for purposes of R.C. 2925.03, a “sale” includes a “gift.” R.C. 3719.01(U) (defining a
“sale”); R.C. 2925.01(A) (as used in R.C. Chapter 2925, “sale” has the same meaning as
Lawrence App. No. 21CA20 18
in R.C. 3719.01). Based on the foregoing, we conclude the conviction on Count Three
was not against the manifest weight of the evidence.
E. Conclusion on Fourth Assignment of Error
{¶32} Having concluded the convictions on Counts One, Two, and Three were not
against the manifest weight of the evidence, we overrule the fourth assignment of error.
V. REAGAN TOKES LAW
{¶33} In his first assignment of error, Holsinger contends that the trial court erred
when it sentenced him under the Reagan Tokes Law because it is unconstitutional. The
Reagan Tokes Law encompasses four newly enacted statutes and amendments to 50
existing statutes. R.C. 2901.011. Relevant here, the Reagan Tokes Law requires that a
court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second
degree felony committed on or after March 22, 2019, impose a minimum prison term
under that provision and a maximum prison term determined under R.C. 2929.144(B).
R.C. 2929.144(A) and (C). There is a presumption that the offender “shall be released
from service of the sentence on the expiration of the offender’s minimum prison term or
on the offender’s presumptive earned early release date, whichever is earlier.” R.C.
2967.271(B). A presumptive earned early release date is a date determined under
procedures described in R.C. 2967.271(F) which allow the sentencing court to reduce the
minimum prison term under certain circumstances. R.C. 2967.271(A)(2).
{¶34} R.C. 2967.271(C) states that the Ohio Department of Rehabilitation and
Correction (“ODRC”) may rebut the presumption in R.C. 2967.271(B) if it determines, at
a hearing, that one or more of the following applies:
(1) Regardless of the security level in which the offender is classified at the
time of the hearing, both of the following apply:
Lawrence App. No. 21CA20 19
(a) During the offender’s incarceration, the offender committed institutional
rule infractions that involved compromising the security of a state
correctional institution, compromising the safety of the staff of a state
correctional institution or its inmates, or physical harm or the threat of
physical harm to the staff of a state correctional institution or its inmates, or
committed a violation of law that was not prosecuted, and the infractions or
violations demonstrate that the offender has not been rehabilitated.
(b) The offender’s behavior while incarcerated, including, but not limited to
the infractions and violations specified in division (C)(1)(a) of this section,
demonstrate that the offender continues to pose a threat to society.
(2) Regardless of the security level in which the offender is classified at the
time of the hearing, the offender has been placed by the department in
extended restrictive housing at any time within the year preceding the date
of the hearing.
(3) At the time of the hearing, the offender is classified by the department
as a security level three, four, or five, or at a higher security level.
If ODRC rebuts the presumption, it “may maintain the offender’s incarceration” after the
expiration of the minimum prison term or presumptive earned early release date for a
reasonable period of time, determined and specified by ODRC, which “shall not exceed
the offender’s maximum prison term.” R.C. 2967.271(D)(1).
A. Standard of Review
{¶35} The constitutionality of a statute presents a question of law we review de
novo. Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.). “ ‘[L]aws
are entitled to a strong presumption of constitutionality.’ ” Ohio Renal Assn. v. Kidney
Dialysis Patient Protection Amendment Commt., 154 Ohio St.3d 86, 2018-Ohio-3220, 111
N.E.3d 1139, ¶ 26, quoting Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d
106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16. “A party may challenge a statute as
unconstitutional on its face or as applied to a particular set of facts.” Harrold v. Collier,
107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. “A party asserting a facial
Lawrence App. No. 21CA20 20
challenge * * * must prove beyond a reasonable doubt ‘that no set of circumstances exists
under which the act would be valid.’ ” Ohio Renal Assn. at ¶ 26, quoting Wymsylo v.
Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21.
{¶36} In this case, Holsinger asserts a facial challenge to the Reagan Tokes Law
but concedes that he did not raise this challenge at the trial level. “ ‘[T]he question of the
constitutionality of a statute must generally be raised at the first opportunity and, in a
criminal prosecution, this means in the trial court.’ ” State v. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120,
122, 489 N.E.2d 277 (1986). However, a reviewing court has “discretion to consider a
forfeited constitutional challenge to a statute” and “may review the trial court decision for
plain error, but we require a showing that but for a plain or obvious error, the outcome of
the proceeding would have been otherwise, and reversal must be necessary to correct a
manifest miscarriage of justice.” (Citation omitted.) Id. at ¶ 16. “The burden of
demonstrating plain error is on the party asserting it.” Id. The Supreme Court of Ohio
has also “stated that a forfeited constitutional challenge to a statute is subject to review
‘where the rights and interests involved may warrant it.’ ” Id., quoting In re M.D., 38 Ohio
St.3d 149, 527 N.E.2d 286 (1988), syllabus.
{¶37} Holsinger suggests we should not apply plain error review because the
reason trial counsel did not challenge the Reagan Tokes Law is “because at the time of
sentencing this Court had ruled multiple times the issue of Reagan Tokes was not ripe
for review.” At the time Holsinger was sentenced, this court rejected challenges to the
constitutionality of the Reagan Tokes Law such as his, which relate to R.C. 2967.271, in
direct appeals of convictions and prison sentences on the ground that the challenges
Lawrence App. No. 21CA20 21
were not ripe for review. E.g., State v. Long, 4th Dist. Pickaway No. 20CA9, 2021-Ohio-
2672, ¶ 1-2, 8, 13, reversed and remanded, In re Cases Held for the Decision in State v.
Maddox, 167 Ohio St.3d 409, 2022-Ohio-1352, 193 N.E.3d 553, ¶ 1. A few months after
Holsinger was sentenced, the Supreme Court of Ohio held in State v. Maddox, 2022-
Ohio-764, ___ N.E.3d ___, ¶ 22, that “a criminal defendant’s challenge to the
constitutionality of R.C. 2967.271 is ripe for review on the defendant’s direct appeal of his
or her conviction and prison sentence.”
{¶38} The record in this case is silent as to why trial counsel did not make a
constitutional challenge to the Reagan Tokes Law. Even if our prior decisions influenced
trial counsel, Holsinger cites no legal authority for the position that our prior decisions
somehow excuse trial counsel’s failure to raise the constitutional issue such that plain
error review does not apply. Nothing about our prior decisions precluded trial counsel
from raising a constitutional challenge to the Reagan Tokes Law in order to preserve it
pending determination of the ripeness issue by the Supreme Court of Ohio. Therefore,
we review the first assignment of error under the plain error standard of review.
B. Separation of Powers
{¶39} Holsinger contends that the Reagan Tokes Law is unconstitutional because
it “vests sentencing power in the Executive Branch” in violation of the separation of
powers doctrine. He asserts that in State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729
N.E.2d 359 (2000), the Supreme Court of Ohio invalidated “a statutory scheme that
allowed prison officials to punish prisoners for their misconduct by extending their prison
sentence.” He asserts that ODRC’s ability under R.C. 2967.271(C)(1)(a) “as a part of the
Executive Branch of the Ohio government, to decide that [he] violated a law is the very
Lawrence App. No. 21CA20 22
definition of encroachment on the powers of the Judicial Branch, and is just what was
held to be unconstitutional actions in Bray.”
{¶40} Holsinger has failed in his burden to show that the Reagan Tokes Law
violates the separation of powers doctrine on its face. His separation of powers argument
is similar to one we rejected in State v. Bontrager, 2022-Ohio-1367, 188 N.E.3d 607,
¶ 41-44 (4th Dist.). He does not address Bontrager or offer any reason for us to revisit it.
C. Access to Counsel
{¶41} Holsinger also contends that the Reagan Tokes Law is unconstitutional
because it “fails to afford” him “access to an attorney at any disciplinary hearing while he
is [in] ODRC’s custody.” He asserts that it violates his “procedural due process rights to
be denied access to counsel at every disciplinary hearing and the hearing to determine
whether he can be released at his minimum prison term, and each hearing thereafter if
his incarceration is continued.”
1. General Principles
{¶42} The Due Process Clause in the Fourteenth Amendment to the United States
Constitution states: “No State shall * * * deprive any person of life, liberty, or property,
without due process of law * * *.” The Due Course of Law Clause in Article I, Section 16
of the Ohio Constitution provides: “All courts shall be open, and every person, for an
injury done him in his land, goods, person, or reputation, shall have remedy by due course
of law, and shall have justice administered without denial or delay.” “The two clauses
provide equivalent due process protections.” State v. Wheatley, 2018-Ohio-464, 94
N.E.3d 578, ¶ 28 (4th Dist.), citing State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956,
83 N.E.3d 883, ¶ 15.
Lawrence App. No. 21CA20 23
{¶43} “The Due Process Clause applies when government action deprives a
person of liberty * * *.” Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442
U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “Once it is determined that due process
applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471,
481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). “[D]ue process is flexible and calls for such
procedural protections as the particular situation demands.” Id. “[I]dentification of the
specific dictates of due process generally requires consideration of three distinct factors:
First, the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.” Mathews
v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). At minimum, due
process requires “the opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’ ” Mathews at 333, quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct.
1187, 14 L.Ed.2d 62 (1965).
2. Liberty Interest
{¶44} “A liberty interest may arise from the Constitution itself, by reason of
guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or interest
created by state laws or policies.” (Citations omitted.) Wilkinson v. Austin, 545 U.S. 209,
221, 125 S.Ct. 2384, 162 L.E.2d 174 (2005). “Because the Reagan Tokes Law creates
a presumption of release after service of an offender’s minimum sentence, * * * it creates
a liberty interest implicating due process rights.” State v. Stenson, 6th Dist. Lucas No. L-
Lawrence App. No. 21CA20 24
20-1074, 2022-Ohio-2072, ¶ 25. Therefore, the question becomes what process is due
when the government deprives an offender of this liberty interest.
3. Process Due
{¶45} Holsinger has not shown that due process requires that the state provide
inmates access to an attorney at all R.C. 2967.271(C) hearings and underlying
disciplinary hearings or that the absence of a provision in the Reagan Tokes Law
providing such access renders it facially unconstitutional. Holsinger asserts that “in Ohio,
a person subject to a civil commitment is entitled [to] be represented by counsel, including
court appointed counsel” “because a civil commitment implicates a loss of liberty.” He
asserts that “[t]his is no different than what Reagan Tokes contemplates by allowing
ODRC to continue the incarceration of an inmate based upon an allegation the inmate
committed a violation of law that was not prosecuted.”
{¶46} Holsinger’s suggestion that the process due in civil commitment
proceedings and in proceedings to maintain incarceration under the Reagan Tokes Law
should be the same because both situations involve a deprivation of liberty is not well-
taken. The fact that both situations involve government action which deprives a person
of liberty means only that the Due Process Clause applies to both situations, Greenholtz,
442 U.S. at 7, 99 S.Ct. 2100, 60 L.E.2d 668, and does not answer the question of what
process is due when the government maintains an offender’s incarceration under R.C.
2967.271. Holsinger fails to articulate any reason why due process demands that
offenders facing continued confinement under the Reagan Tokes Law receive the same
process due persons facing civil commitment.
Lawrence App. No. 21CA20 25
{¶47} Holsinger also asserts that in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254,
63 L.E.2d 552 (1980) (“Vitek”), the United States Supreme Court held that an inmate who
challenged the constitutionality of a statute which allowed prisoners to be transferred to
a mental hospital was entitled to certain rights, including the availability of legal counsel,
because the involuntary transfer to a psychiatric hospital implicated his liberty. Holsinger
claims “[t]hat is no different than the facts of this case” because continuing his
incarceration after the expiration of his minimum sentence “clearly would be an
involuntary hold from [his] perspective.”
{¶48} In Vitek, a Nebraska inmate was transferred to a state mental hospital
pursuant to a state statute. Vitek at 483-484. A federal district court declared the statute
unconstitutional as applied to the inmate and permanently enjoined the state from
transferring him to the state mental hospital without following the procedures prescribed
in its judgment. Id. at 485. The procedures included “[a]vailability of legal counsel,
furnished by the state, if the inmate is financially unable to furnish his own.” Id. at 495,
quoting Miller v. Vitek, 437 F.Supp.569, 575 (D.C.Neb. 1977).
{¶49} The Supreme Court affirmed the judgment of the district court with
modification. Id. at 497. The Supreme Court agreed with the district court that the
involuntary transfer implicated a liberty interest that is protected by the Due Process
Clause. Id. at 487-488. The Supreme Court also approved most of procedures
prescribed by the district court. Id. at 494-497.
{¶50} However, the Supreme Court did not approve of the legal counsel
requirement. Four justices did not reach the issue because they concluded either that
the case was moot, id. at 500-501 (Stewart, J., dissenting, joined by Chief Justice Burger
Lawrence App. No. 21CA20 26
and Justice Rehnquist), or not ripe for review, id. at 501-506 (Blackmun, J., dissenting).
Four other justices agreed the district court went “beyond the requirements imposed by
prior cases by holding that counsel must be made available to inmates facing transfer
hearings if they are financially unable to furnish their own” and that the Supreme Court
had “not required the automatic appointment of counsel for indigent prisoners facing other
deprivations of liberty.” Id. at 496 (White, J., joined by Justices Brennan, Marshall, and
Stevens). Those justices also agreed that the Supreme Court had “recognized that
prisoners who are illiterate and uneducated have a greater need for assistance in
exercising their rights” and that it was “appropriate that counsel be provided to indigent
prisoners whom the State seeks to treat as mentally ill” because “[a] prisoner thought to
be suffering from a mental disease or defect requiring involuntary treatment probably has
an even greater need for legal assistance, for such a prisoner is more likely to be unable
to understand or exercise his rights.” Id. at 496-497. However, they agreed to modify the
district court’s opinion to conform with the separate opinion of Justice Powell. Id. at 497.
{¶51} Justice Powell observed that it was “unlikely that an inmate threatened with
involuntary transfer to mental hospitals will possess the competence or training to protect
adequately his own interest in these state-initiated proceedings.” Id. at 498 (Powell, J.,
concurring in part). He agreed that “qualified and independent assistance must be
provided to an inmate who is threatened with involuntary transfer to a state mental
hospital.” Id. at 497. However, he did not agree that the requirement of qualified and
independent assistance demanded “that a licensed attorney be provided.” Id. at 497. He
concluded such assistance “may be provided by a licensed psychiatrist or other mental
Lawrence App. No. 21CA20 27
health professional” and “would not exclude * * * the possibility that the required
assistance may be rendered by competent laymen in some cases.” Id. at 500.
{¶52} Holsinger’s reliance on Vitek is misplaced. Even if inmates facing continued
incarceration under the Reagan Tokes Law were due the same process as inmates
threatened with involuntary transfer to a state mental hospital under Vitek, as explained
above, Vitek requires only the provision of qualified and independent assistance, not a
licensed attorney. Id. at 497. Moreover, Vitek did not hold that the absence of a provision
for qualified and independent assistance in the Nebraska statute at issue in that case
rendered it facially unconstitutional. Rather, Vitek affirmed with modification the district
court judgment which declared the statute unconstitutional as applied to the inmate in that
case, who was transferred without such assistance. See id. at 485, 497. Thus, Vitek
does not support the position that the state must provide access to an attorney at all R.C.
2967.271(C) hearings and underlying disciplinary hearings or that the absence of a
provision in the Reagan Tokes Law providing such access renders it facially
unconstitutional.
{¶53} For these reasons, we conclude Holsinger has failed in his burden to show
the Reagan Tokes Law violates procedural due process on its face because it fails to
afford access to counsel.
D. Additional Arguments
{¶54} Holsinger argues that the Reagan Tokes Law is unconstitutional because it
does not require that the state prove to a jury beyond a reasonable doubt the basis for
maintaining an inmate’s incarceration. This argument is beyond the scope of the first
assignment of error so we need not address it. See State v. Nguyen, 4th Dist. Athens
Lawrence App. No. 21CA20 28
No. 14CA42, 2015-Ohio-4414, ¶ 41 (an appellate court reviews “assignments of error and
not mere arguments”). However, we observe that in State v. Chapman, 4th Dist. Ross
No. 21CA3742, 2022-Ohio-2853, ¶ 77, we recently held that “the Reagan Tokes Law
does not violate the constitutional right to a jury trial.”
{¶55} Holsinger also suggests that even if a jury trial is not required, the Reagan
Tokes Law violates due process because it does not require a judge to make the decision
to maintain incarceration. Even if we construed this argument to be within the scope of
the first assignment of error, in Bontrager, we rejected the contention that due process
requires that the sentencing court, rather than ODRC, conduct the R.C. 2967.271(C)
hearing and make the decision whether to maintain the offender’s incarceration.
Bontrager, 2022-Ohio-1367, 188 N.E.3d 607, at ¶ 48. Holsinger does not address
Bontrager or offer any reason for us to depart from it.
{¶56} Holsinger also argues that even if a judge does not have to make the
decision to maintain incarceration, the Reagan Tokes Law is unconstitutional because it
does not contain a presumption of innocence, require proof beyond a reasonable doubt,
grant inmates rights to confront and subpoena witnesses, allow inmates to appeal an
ODRC decision to maintain incarceration, or provide inmates with appointed counsel if
the state appeals an ODRC decision to release an inmate on the inmate’s presumptive
release date. These arguments are beyond the scope of the first assignment of error so
we need not address them. See Nguyen at ¶ 41.
Lawrence App. No. 21CA20 29
E. Conclusion on First Assignment of Error
{¶57} Holsinger failed to show the Reagan Tokes Law is unconstitutional on its
face. Thus, he has not shown the trial court erred, let alone committed plain error, when
it sentenced him under that law. Accordingly, we overrule the first assignment of error.
VI. CONSECUTIVE SENTENCES
{¶58} In his second assignment of error, Holsinger contends that the trial court
failed to make the proper findings to order consecutive sentences under R.C.
2929.14(C)(4). Holsinger asserts that the trial court must make the findings at sentencing
and incorporate them into the sentencing entry, and there is “no mention of the necessary
findings in the sentencing entry.” Therefore, he asks us to vacate his consecutive
sentences and order that his sentences run concurrent with each other.
{¶59} Under R.C. 2953.08(A)(4) “a defendant who is convicted of or pleads guilty
to a felony may appeal as a matter of right the sentence imposed upon the defendant” on
the ground that “[t]he sentence is contrary to law.” “The appellate court may increase,
reduce, or otherwise modify a sentence that is appealed under [R.C. 2953.08] or may
vacate the sentence and remand the matter to the sentencing court for resentencing” “if
it clearly and convincingly finds” that the record does not support certain findings by the
sentencing court, including consecutive sentence findings under R.C. 2929.14(C)(4), or
“[t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2).
{¶60} R.C. 2929.14(C)(4) states:
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
Lawrence App. No. 21CA20 30
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:
***
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶61} “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, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 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. at ¶ 37. “A failure to
make the appropriate R.C. 2929.14(C)(4) findings renders a consecutive sentence
contrary to law.” State v. Brickles, 4th Dist. Pickaway No. 19CA16, 2021-Ohio-178, ¶ 7.
However, “[a] trial court’s inadvertent failure to incorporate the statutory findings in the
sentencing entry after properly making those findings at the sentencing hearing does not
render the sentence contrary to law; rather, such a clerical mistake may be corrected by
the court through a nunc pro tunc entry to reflect what actually occurred in open court.”
Bonnell at ¶ 30.
{¶62} Holsinger’s consecutive sentences are not contrary to law because the trial
court made the requisite findings at the sentencing hearing. The trial court stated:
[I]n finding that the 2929.14 requirements that have been satisfied in order
to run the time consecutive in this case, the history, I think is very, very clear
that the Prosecutor has went over on convictions of Mr. Holsinger in the
past and time served, in that consecutive terms are necessary to protect the
public from future crimes [sic]. It is also to punish the offender in this case
Lawrence App. No. 21CA20 31
for a history of drug trafficking issues in this community, and now one more
set of charges that have been convicted by a jury [sic]. Consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct in this case, and to the danger that he poses to the public. Uhm,
also that the Court finds that the offender’s criminal history demonstrates
consecutive sentences are necessary to protect the public from future
claims or crimes by the offender * * *.
Thus, the court found that (1) consecutive service was necessary to protect the public
from future crime and to punish Holsinger (even though it only had to make one of those
two findings under R.C. 2929.14(C)(4)), (2) consecutive sentences were not
disproportionate to the seriousness of Holsinger’s conduct and to the danger he posed to
the public, and (3) Holsinger’s history of criminal conduct demonstrated that consecutive
sentences are necessary to protect the public from future crime by him, see R.C.
2929.14(C)(4)(c). Although Holsinger suggests the record does not support these
findings, he presented no argument to that effect. And while the trial court failed to
incorporate these findings into the sentencing entry, this “clerical mistake may be
corrected by the court through a nunc pro tunc entry to reflect what actually occurred in
open court.” Bonnell at ¶ 30.
{¶63} For the foregoing reasons, we overrule the second assignment of error.
However, pursuant to App.R. 9(E), we instruct the trial court to issue a nunc pro tunc
sentencing entry which includes the court’s consecutive sentence findings. See State v.
Williams, 4th Dist. Adams No. 19CA1090, 2019-Ohio-4873, ¶ 14 (similarly instructing a
trial court); App.R. 9(E) (“If anything material to either party is omitted from the record by
error or accident or is misstated * * * the court of appeals, on proper suggestion or of its
own initiative, may direct that omission or misstatement be corrected * * *”).
Lawrence App. No. 21CA20 32
VII. CONCLUSION
{¶64} Having overruled the assignments of error, we affirm the trial court’s
judgment. However, pursuant to App.R. 9(E), we instruct the trial court to issue a nunc
pro tunc sentencing entry which includes the court’s consecutive sentence findings.
JUDGMENT AFFIRMED
WITH INSTRUCTIONS.
Lawrence App. No. 21CA20 33
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED WITH INSTRUCTIONS and that
appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas 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 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 the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, 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.