State v. Conn , 2023 Ohio 2669 ( 2023 )

[Cite as State v. Conn, 2023-Ohio-2669.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
State of Ohio, : Case No. 23CA1163
Plaintiff-Appellee, : DECISION AND
JUDGMENT ENTRY
v. :
Justin Conn, :
Defendant-Appellant. : RELEASED 7/27/2023
______________________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
Austin Ervin, Assistant Prosecuting Attorney, West Union, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Justin Conn appeals from a judgment entry on sentence issued by the
Adams County Court of Common Pleas following his guilty plea to four counts of
obstructing official business and four counts of failure to stop after an accident. Conn
raises two assignments of error asserting that the trial court committed plain error when
it did not merge the obstructing official business counts and that the trial court erred in
imposing consecutive sentences when it failed to make the requisite findings to do so
during the sentencing hearing. For the reasons which follow, we conclude that the trial
court did not commit plain error when it did not merge the obstructing official business
counts. However, we conclude that the trial court did err when it ordered Conn to serve
the sentences for the obstruction counts consecutively because it did not make all the
findings required by R.C. 2929.14(C)(4) at the sentencing hearing. Therefore, we clearly
Adams App. No. 23CA1163 2
and convincingly find that the order of consecutive sentences is contrary to law, vacate
Conn’s sentence for his obstructing official business convictions, and remand the case
for the limited purpose of resentencing him on those convictions. We affirm the trial
court's judgment in all other respects.
I. FACTS AND PROCEDURAL HISTORY
{¶2} In February 2022, the Adams County grand jury indicted Conn on four
counts of obstructing official business in violation of R.C. 2921.31(A), fifth-degree felonies
because he allegedly “created a risk of physical harm to any person,” see R.C.
2921.31(B). The grand jury also indicted him on four counts of failure to stop after an
accident in violation of R.C. 4549.02(A)(1)(a), (b), and (c), first-degree misdemeanors.
Each failure to stop count indicated it pertained to a collision Conn was involved in with a
different named individual. All eight counts were alleged to have occurred “[o]n or about
and between January 19, 2022 and January 21, 2022 in Adams County, Ohio.” Conn
initially pleaded not guilty.
{¶3} On March 1, 2022, the trial court modified Conn’s bond to approve a new
address for him at the Counseling Center in West Union, Ohio. On March 8, 2022, the
court revoked his bond and ordered that a capias be issued for his arrest because it
appeared to the court, upon notification by a probation officer, that Conn had left the
Counseling Center three days prior and had not contacted the court with a new address.
On March 11, 2022, Conn was arrested on the capias.
{¶4} In April 2022, Conn withdrew his not guilty plea and pleaded guilty. Conn
agreed that he would pay a total of $2,750 in restitution to the four individuals named in
the failure to stop after an accident counts but would otherwise be free to argue about
Adams App. No. 23CA1163 3
sentencing. At the change of plea hearing, the trial court asked Conn to describe what
happened during the timeframe alleged in the indictment. Conn testified, “Well, I’ll start
off with, uh, that day I was cutting wood. I had, uh, mud all over my shoes. I had a mat
in the back of my truck that didn’t really fit my truck. So, uh, I was cutting wood at my
mom’s house. So, I came into town to get, uh, some stuff at AutoZone. Went down, went
down by I, the old IGA.” He “turned left” and “went up” South Street. Conn further
testified:
Uh, went up that street, didn’t see a car on my right. Started, you know, I
stopped at the stop sign. I, I, uh, side swiped her. My mat got caught up in
my brake. I backed up. I tried to, uh, hit my brake. My gas went. So, then
I went, I went around her about rear-end another truck. Went up to the other
stop sign, ran it because I couldn’t stop sideswiped another car. Got my
mat out, tried to stay in the middle lane, and then rear-ended somebody
else, and then just freaked out and ran.
Defense counsel stated, “And they rear-ended somebody else,” and Conn testified, “And
they, then they rear-ended somebody else.” The court asked Conn why he “got out and
ran,” and Conn testified, “I have no idea.” The court later asked Conn, “Do you, uh, feel
that by leaving, uh, and, and not staying at the scene of the various accidents that, uh,
that hampered or impeded, uh, the, uh, public official in this case, probably a law
enforcement officer in the performance of their duties to investigate the, uh, various, uh,
wrecks that occurred?” Conn stated, “Yes.” The court accepted the guilty plea and
ordered a pre-sentence investigation report (“PSI”).
{¶5} On December 22, 2022, the trial court conducted the sentencing hearing.
During it, defense counsel stated, “I don’t think that anybody’s going to, to argue the fact
that the misdemeanor charges in this case would have to run concurrent or in a concurrent
manner with the overarching felony cases. So, um, I’m going to, for purposes of the
Adams App. No. 23CA1163 4
sentencing hearing, disregard those today * * * and ask the court to consider, given the
fact that this all took place in span of an hour less [sic], there’s not an exact timeframe,
but [sic].” Conn stated, “Three minutes,” and defense counsel stated, “Yeah. Uh, it
somewhere, somewhere [sic] more than a minute and, and less than an hour. This was
all really one series of events that occurred back on, uh, in January of, um, 2022. I, I
believe, um.” The court said, “The, on or about between [sic] January 19th and January
21st.” Defense counsel stated, “Yeah.” Defense counsel later stated:
And while I realized that there are four specific victims in these
matters for Mr. Conn’s purposes, these are, this is one, one day that he
shouldn’t be driving when he’s driving. Uh, and while there are the four
victims and any [sic] is appreciative of the fact that they need to be
recompensed and, and made whole again, and he’s willing than [sic] willing
to do that. For driving offenses, I would, um, venture to guess that that
leaving, you know, sending someone to prison for four years would be
excessive in, in Mr. Conn’s viewpoint and mine.
Um, so we’d be asking the court to run the cases concurrently with
one another, uh, and give him credit for whatever, whatever time he’s got
served.
The court then asked defense counsel, “What do you think the victim’s viewpoint would
be,” and defense counsel stated, “They haven’t been here. I don’t know.” The court said,
“Okay.”
{¶6} The court gave Conn an opportunity to speak. Conn told the court that he
had “issues” but was “working on them.” The court asked how he was doing that when
he had left the place where he was “getting help for the issues.” Conn told the court he
was “seeing the psych now” and “trying to get meds.” He told the court that he had spent
20 years in prison, and the court asked why he kept putting himself “in a position to go
back.” Conn said, “It’s like something inside of me just makes, makes me, uh, want to
go. You know what I mean? I don’t even know. I can’t even explain it.” The court told
Adams App. No. 23CA1163 5
Conn that it did not know what he meant and that “the wake behind your boat is full of,
um, damage to so many people.” Conn said, “I already know,” and the court said, “I just
don’t understand it.”
{¶7} Subsequently, the court indicated that it had considered the record, oral
statements, any victim impacts statements, and the PSI. Among other things, the PSI
contains information about Conn’s lengthy criminal history and history of substance
abuse, including the fact that he attended but failed to complete treatment at the
Counseling Center. The PSI also contains details regarding the offenses in this case.
The PSI indicates that on January 20, 2022, Conn was driving westbound on South Street
at “a very high rate of speed,” failed to stop at a stop sign at the intersection of South
Street and Cherry Street, and struck a vehicle traveling southbound on Cherry Street
through the intersection, disabling that vehicle and causing minor injury to the driver.
Conn “continued in his vehicle, still at a high rate of speed westbound on South Street to
North Manchester Street (State Route 41),” where he ran another stop sign and struck a
vehicle traveling northbound on State Route 41. Conn “then turned southbound on State
Route 41 and continued at a high rate of speed in the center left turn lane from South
Street to the area of Blaine Drive.” He drove “for approximately 1 mile” and rear-ended a
vehicle which was stopped in the center turn lane attempting to turn left on Blaine Drive,
forcing that vehicle into another vehicle “traveling northbound on State Route 41 at Blaine
Drive.” Conn fled on foot and officers were unable to locate him that day despite a lengthy
search of the area “via foot, drone, and the use of OSP helicopter.” Eight days later, two
detectives located him and took him into custody. That same day, a sergeant “completed
the reports” and “referred the case” to the county prosecutor “for consideration of 4 counts
Adams App. No. 23CA1163 6
of Felonious Assault with a Motor Vehicle.” The PSI states that Conn “had a total
disregard for the public’s safety and concern of occupants in the vehicle [sic], nor the
school bus that was attempting to drop off children at the intersection at the time of the
crash.” In addition, the PSI indicates that three of the drivers Conn was involved in
collisions with did not provide a victim impact statement, but the driver of the vehicle he
rear-ended requested that Conn “be held responsible for his actions” and “receive jail
and/or prison time ‘for the risk to life he showed.’ ”
{¶8} The court noted it had also considered the principles and purposes of
sentencing under R.C. 2929.11(A) and that the overriding purposes of felony sentencing
are “to protect the public from future crime by the offender, as well as others, as well as
to punish the offender using the minimum sanctions that the court determines,
accomplishes those purposes without imposing an unnecessary burden upon the state or
local government resources.” The court also noted that to achieve those purposes, “the
sentencing court shall consider the need for incapacitating the offender, deterring the
offender, and others from future crime, rehabilitating effectively the offender, as well as
making restitution to the victim of the offense, the public, or both.” In addition, the court
indicated it had considered the seriousness and recidivism factors in R.C. 2929.12.
{¶9} The court found that Conn had been convicted, pursuant to his guilty plea,
on all counts and stated:
I do agree that, uh, misdemeanor statutorily must be concurrent with
anything imposed in the felony [sic]. Uh, the, uh, just, just for the benefit of
the record, um, in light of the history and, and four different people being
injured, um, their, their cars being injured, uh, their lives being disrupted,
uh, to get to work, pick up their children, everything else, um, the court still
reached out to Mr. Conn and tried to get him help. We talked about going
to other states to get him out of this environment that didn’t work. We
Adams App. No. 23CA1163 7
expended a lot of time and energy on that. Um, but we were the ones
seeking help, not Mr. [sic] Um, we find Salvation Army [sic].
Conn said, “That’s not true.” The court asked, “Did you look also?” Conn said, “Huh? It’s
not true. I am seeking help.” The court later said, “So, I would say a lot of per people
[sic] would’ve lost the bet that [I] would send Justin Conn to Salvation Army. But I did
with hopes.” Conn said, “Everybody deserves a chance.” The court stated, “I gave you
that chance.” Conn stated, “I know, you, I’m, I’m saying everybody deserves a chance.
Just cause my name’s Justin Conn don’t [sic] mean I don’t deserve a chance.” The court
responded:
No, it, it, whoever has a name with the criminal record behind it and the
amount of damage that is, it has nothing to do with name. * * * Um, but for
the record, um, the, the number one thing in, in sentencing guidelines is
protect the public from future crime by the offender and others, we hope
there would be rehabilitation. We hoped he’d be, become productive. Uh,
he’s been employed previously at Southern Ohio Lumber, uh, and, and he
leaves, doesn’t report. Uh, it’s the second time we’ve had to issue capias
for his arrest. * * *
The court asked Conn about his most recent arrest and then stated, “Um, anyway, so
unfortunately Mr. Conn’s put the court in a position and himself in a position that, um, he’s
no longer amenable to the available community control sanctions we were attempting
previously.”
{¶10} The court sentenced Conn to 8 months in prison on each count of
obstructing official business and 90 days of local incarceration on each count of failure to
stop after an accident. The court ordered him to serve the sentences on the obstruction
counts consecutively and to serve the sentences on the failure to stop counts concurrently
with each other and the sentences on the obstruction counts, for an aggregate term of 32
months in prison. The court also ordered him to pay a total of $2,750 in restitution to the
Adams App. No. 23CA1163 8
four individuals named in the failure to stop after an accident counts and the costs of
prosecution.
{¶11} The trial court memorialized Conn’s sentence in a judgment entry on
sentence. The entry explained the court may require the offender to serve prison terms
consecutively if it finds that “consecutive service is necessary to protect the public from
future crime or to punish the offender,” “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 that one of three additional circumstances applies. The
court initialed two of the three circumstances, i.e., “[a]t 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” and “[t]he offender’s history
of criminal conduct demonstrates that consecutive sentences are necessary to protect
the public from future crime by the offender.” This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶12} Conn presents two assignments of error:
First Assignment of Error: The trial court erred in imposing consecutive
sentences when it failed [to] make the mandatory findings during the
sentencing hearing.
Second Assignment of Error: The trial court committed plain error when it
did not merge the four counts of obstructing official business.
We will address the assignments of error out of order.
Adams App. No. 23CA1163 9
III. MERGER
{¶13} In the second assignment of error, Conn contends that the trial court
committed plain error when it did not merge the four counts of obstructing official
business. Conn asserts that the basis for the obstruction charges was him “leaving the
scene of various accidents which impeded law enforcement in the performance of their
duty to investigate the accidents.” He asserts that the victim of each obstruction offense
was the public and that “[j]ust because there were four separate victims of a vehicle
accident does not mean that official business was obstructed four separate times.” He
concedes that the indictment alleges the offenses “took place sometime within a three-
day time frame” and that “[t]he record is not clear exactly in what timeframe the separate
accidents occurred.” However, he maintains that “everything in the record points towards
everything happening as one single course of conduct.” He asserts that “if all the
accidents happened close in time to one another there would have presumably been only
one investigation,” and him “leaving the scene may have obstructed that investigation,
but that would be it.” And he asserts that upon considering the merger factors, “it
becomes clearer that all charges of obstructing official business should merge” because
the offenses “did not cause separate identifiable harm to the public,” “were not committed
separately,” and “were not committed with a separate animus or motivation.”
{¶14} “Under the plain-error doctrine, intervention by a reviewing court is
warranted only under exceptional circumstances to prevent injustice.” State v. Bailey,
___ Ohio St.3d ___, 2022-Ohio-4407, ___ N.E.3d ___, ¶ 8, citing State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “To prevail under the
plain-error doctrine,” Conn “must establish that ‘an error occurred, that the error was
Adams App. No. 23CA1163 10
obvious, and that there is “a reasonable probability that the error resulted in prejudice,”
meaning that the error affected the outcome of the trial.’ ” (Emphasis added in Rogers.)
Id., quoting State v. McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶
66, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
“The elements of the plain-error doctrine are conjunctive: all three must apply to justify an
appellate court’s intervention.” Id. at ¶ 9.
{¶15} R.C. 2941.25 states:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶16} “In determining whether offenses are allied offenses of similar import within
the meaning of R.C. 2941.25, courts must evaluate three separate factors—the conduct,
the animus, and the import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
892, at paragraph one of the syllabus. “Two or more offenses of dissimilar import exist
within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus. “Under R.C. 2941.25(B), a defendant
whose conduct supports multiple offenses may be convicted of all the offenses if any one
of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows that the offenses were committed separately, or (3) the conduct shows
that the offenses were committed with separate animus.” Id. at paragraph three of the
Adams App. No. 23CA1163 11
syllabus. “Although determining whether R.C. 2941.25 has been properly applied is a
legal question, it necessarily turns on an analysis of the facts, which can lead to
exceedingly fine distinctions.” Bailey at ¶ 11.
{¶17} Conn’s merger argument pertains to the four counts of obstructing official
business. R.C. 2921.31, the statute regarding that offense, states:
(A) No person, without privilege to do so and with purpose to prevent,
obstruct, or delay the performance by a public official of any authorized act
within the public official’s official capacity, shall do any act that hampers or
impedes a public official in the performance of the public official’s lawful
duties.
(B) Whoever violates this section is guilty of obstructing official business.
Except as otherwise provided in this division, obstructing official business is
a misdemeanor of the second degree. If a violation of this section creates
a risk of physical harm to any person, obstructing official business is a felony
of the fifth degree.
The term “public official” includes law enforcement officers. R.C. 2921.01(A).
{¶18} Even if we were to assume that the trial court erred by not merging the four
obstructing official business counts, the facts of the case indicate that such an error was
not obvious. “Application of the law governing the merger of allied offenses is dependent
on the specific facts of each case.” Bailey, ___ Ohio St.3d ___, 2022-Ohio-4407, ___
N.E.3d ___, at ¶ 16. The merger analysis Conn urges us to adopt assumes the existence
of a fact which is key to that analysis—that because the record gives some indication that
the four accidents occurred close in time, law enforcement conducted only one
investigation in which he hampered or impeded a public official in the performance of the
public official’s lawful duties.
{¶19} However, the circumstances surrounding the accidents vary more than
Conn’s appellate brief indicates. Citing his testimony at the change of plea hearing, Conn
Adams App. No. 23CA1163 12
claims that “his car mat got caught in the brake” which “caused his vehicle to go out of
control, striking multiple vehicles.” However, Conn testified:
Uh, went up that street, didn’t see a car on my right. Started, you know, I
stopped at the stop sign. I, I, uh, side swiped her. My mat got caught up in
my brake. I backed up. I tried to, uh, hit my brake. My gas went. So, then
I went, I went around her about rear-end another truck. Went up to the other
stop sign, ran it because I couldn’t stop sideswiped another car. Got my
mat out, tried to stay in the middle lane, and then rear-ended somebody
else, and then just freaked out and ran.
***
And they, then they rear-ended somebody else.
In this testimony, Conn indicated the first accident happened when, after stopping at a
stop sign, he side-swiped a vehicle which he did not see. A mat then got caught in his
brake, and the second accident occurred when he continued driving, ran a different stop
sign due to his inability to brake, and side-swiped a second vehicle. He then extricated
the mat from his brake. But instead of stopping, he continued driving, rear-ended a third
vehicle which then rear-ended a fourth vehicle, and fled on foot. The PSI indicates that
Conn was traveling at a high rate of speed when each accident occurred, that the first
accident actually occurred when he ran a stop sign at the intersection of South Street and
Cherry Street, that the second accident occurred when he ran a stop sign at the
intersection of South Street and State Route 41, and that the third and fourth accidents
occurred after he turned onto State Route 41, drove about a mile, and rear-ended a third
vehicle, forcing it into a fourth vehicle. The PSI also indicates that a sergeant completed
“reports” in connection with these matters.
{¶20} The fact that the accidents did not all occur at the same location or in the
same manner and the fact that they resulted in more than one report by law enforcement
Adams App. No. 23CA1163 13
undercuts Conn’s assumption that law enforcement conducted only one investigation in
which he hampered or impeded a public official in the performance of the public official’s
lawful duties. Therefore, the trial court’s alleged error in not merging the four obstruction
counts is not obvious. And because the trial court did not commit plain error when it did
not merge the four counts of obstructing official business, we overrule the second
assignment of error.
IV. CONSECUTIVE SENTENCES
{¶21} In the first assignment of error, Conn contends that the trial court erred in
imposing consecutive sentences when it failed to “make the mandatory findings,” i.e., the
findings required by R.C. 2929.14(C)(4), during the sentencing hearing. Conn asserts
that “[t]here is nothing in the record that would indicate consecutive sentences were
necessary to protect the public or punish” him. He maintains that even though the court
discussed how he “had been given opportunities for treatment during the pendency of this
case and been unsuccessful,” “[n]one of this goes to the need to protect the public or
punish” him. He asserts that the court did not find that consecutive sentences are not
disproportionate to his conduct or the danger that he poses to the public. Conn also
asserts that the trial court did not find that he committed the offenses “while under
community control or postrelease control, that no single prison term adequately reflects
the seriousness of his conduct,” or that his criminal history “demonstrates that
consecutive sentences are necessary.” He states that “[i]t does not appear that any” of
his criminal history “is addressed at all during the sentencing hearing.” He also asserts
that even if we “could discern from the record that the trial court made some of the
necessary findings, there is nothing in the record discussing the proportionality of the
Adams App. No. 23CA1163 14
sentence.” And Conn asserts that even though the trial court made the necessary findings
to impose consecutive sentences in its sentencing entry, the court’s failure to make the
findings during the sentencing hearing requires a remand for a new sentencing hearing.
{¶22} 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).
{¶23} 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
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
Adams App. No. 23CA1163 15
{¶24} “[B]ased on the language of R.C. 2929.14(C)(4), the consecutive-sentence
findings are not simply threshold findings that, once made, permit any amount of
consecutively stacked individual sentences. Rather, these findings must be made in
consideration of the aggregate term to be imposed.” State v. Gwynne, ___ Ohio St.3d
___, 2022-Ohio-4607, ___ N.E.3d ___, ¶ 1.1 “R.C. 2929.14(C)(4) requires trial courts to
consider the overall number of consecutive sentences and the aggregate sentence to be
imposed when making the necessity and proportionality findings required for the
imposition of consecutive sentences.” Id. at ¶ 31.
{¶25} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry * * *.” 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. “[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.” Id. at ¶ 29.
{¶26} “The first step in consecutive-sentence review is to ensure that the
consecutive-sentence findings under R.C. 2929.14(C)(4) have been made—i.e., the first
1 The state has moved the Supreme Court of Ohio to reconsider its decision in Gwynne; however, the court
has not yet ruled on that motion. State v. Gwynne, Supreme Court Case No. 2021-1033, 1/3/23 Motion for
Reconsideration.
Adams App. No. 23CA1163 16
and second findings regarding necessity and proportionality, as well as the third required
finding under R.C. 2929.14(C)(4)(a), (b), or (c).” Gwynne at ¶ 25. “If the trial court fails
to make these findings, and that issue is properly raised on appeal, then the appellate
court must hold that the order of consecutive sentences is contrary to law and either
modify the sentence or vacate it and remand the case for resentencing.” Id. 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. See State v. Brickles, 4th Dist. Pickaway No. 19CA16, 2021-Ohio-178, ¶ 9, 11.
{¶27} In this case, the trial court indicated that it was considering the need to
protect the public, the need to punish Conn, and the PSI, which details Conn’s criminal
history. We can discern from the trial court’s comments about “the history,” the harm
Conn caused to the other four drivers, and his lack of effort at rehabilitation that the court
found a need to protect the public from future crime or to punish Conn. We can also
discern the court found Conn’s history of criminal conduct demonstrated that consecutive
sentences are necessary to protect the public from future crime by him based on
statements the court made regarding the “wake behind” Conn’s “boat,” i.e., his criminal
history, being “full of * * * damage to so many people” and indicating the court’s belief that
people would be surprised the court sent Conn to the Salvation Army when his record
and the amount of damage he had caused indicated he did not deserve another chance.
{¶28} However, we cannot discern that the trial court made the requisite
proportionality finding. The state contends that “the trial court satisfied its obligation to
make a finding of proportionality” because after defense counsel essentially argued that
consecutive sentences would be excessive for what he described as “driving offenses”
Adams App. No. 23CA1163 17
and asked the court to impose concurrent sentences, the trial court asked, “What do you
think the victim’s viewpoint would be?” The state asserts that “[t]his dialogue * * * provides
evidence that the trial court did consider the seriousness of the offense and the
appropriateness and proportionality of concurrent versus consecutive sentences, even if
not explicitly stated on the record. The trial court seemed to allude to the idea that
regardless if Mr. Conn committed a driving offense or not, a concurrent sentence would
not be sufficient.” However, we fail to see how the trial court inquiring about how the
victims would view concurrent sentences shows the court found that consecutive
sentences are not disproportionate to the seriousness of Conn’s conduct and to the
danger he poses to the public.
{¶29} The trial court erred when it imposed consecutive sentences for the
obstructing official business counts. Because the trial court failed to make all the requisite
findings under R.C. 2929.14(C)(4) at the sentencing hearing, we clearly and convincingly
find that the order of consecutive sentences is contrary to law. See Brickles, 4th Dist.
Pickaway No. 19CA16, 2021-Ohio-178, at ¶ 9, 11. Accordingly, we sustain the first
assignment of error, vacate Conn’s sentence for his obstructing official business
convictions, and remand the case for the limited purpose of resentencing him on those
convictions. See generally State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108
N.E.3d 1028, ¶ 2, 110, 252-262, (affirming defendant’s convictions and capital sentences
but vacating his sentence for his noncapital convictions, which the trial court had ordered
to run consecutively, and remanding the case for the limited purpose of resentencing him
on those convictions because the trial court failed to make all the requisite findings to
impose consecutive sentences).
Adams App. No. 23CA1163 18
V. CONCLUSION
{¶30} For the foregoing reasons, we sustain the first assignment of error and
overrule the second assignment of error. We affirm the trial court’s judgment in part,
vacate it in part, and remand for further proceedings consistent with this decision.
JUDGMENT AFFIRMED IN PART
AND VACATED IN PART.
CAUSE REMANDED.
Adams App. No. 23CA1163 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND VACATED IN
PART. CAUSE REMANDED. Appellant and appellee shall split 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 ADAMS
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.
Smith, P.J. & Abele, 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.