State v. Phillips

[Cite as State v. Phillips, 2019-Ohio-4917.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
LORETTA PHILLIPS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 18 MA 0141
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2014 CR 1135
BEFORE:
Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Jonathan Metzler, Assistant Attorney General, Health Care Fraud Section, 150
East Gay Street, 17th Floor, Columbus, Ohio 43215, for Plaintiff-Appellee, and
Atty. James Wise, Hartford & Wise Co., LPA, 91 West Taggart, P.O. Box 85, East
Palestine, Ohio 44413, for Appellant-Defendant.
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Dated:
November 13, 2019
DONOFRIO, J.
{¶1} Defendant-appellant, Loretta Phillips, appeals from a Mahoning County
Common Pleas Court judgment re-sentencing her after this court remanded this case for
re-sentencing. The trial court re-sentenced appellant to a prison term of 60 months
following her convictions for aggravated theft, falsification in a theft offense, and
tampering with evidence.
{¶2} Appellant was a counselor and owner of a counseling center in Sebring,
Ohio. On October 15, 2013, a Franklin County Grand Jury indicted appellant on one count
of aggravated theft, a third-degree felony in violation of R.C. 2913.02(A)(3); one count of
falsification in a theft offense, a third-degree felony in violation of R.C. 2921.13(A)(9); and
one count of tampering with evidence, a third-degree felony in violation of R.C.
2921.12(A)(2). These charges stemmed from allegations of Medicaid fraud and providing
the state with falsified patient records.
{¶3} On October 29, 2014, the Franklin County Common Pleas Court granted
appellant’s motion for a change of venue and the case was transferred to the Mahoning
County Common Pleas Court.
{¶4} The matter proceeded to a jury trial. The jury returned a verdict of guilty as
charged. The trial court held a sentencing hearing. The court merged counts one and
two. It then sentenced appellant to 30 months on count one and to 30 months on count
three to be served consecutively. The court also ordered appellant to pay $102,777.09
in restitution to the Ohio Department of Medicaid and $96,521.79 in restitution to
CareSource.
{¶5} Appellant timely appealed arguing that her counsel was constitutionally
ineffective, that her speedy trial rights were violated, and that the trial court failed to make
the necessary findings to impose consecutive sentences. On September 10, 2018, this
court upheld appellant’s convictions, but remanded for resentencing finding that the trial
court failed to make the required consecutive sentencing findings. State v. Phillips, 7th
Dist. Mahoning No. 15 MA 0218, 2018-Ohio-3732.
Case No. 18 MA 0141
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{¶6} Pursuant to our remand, the trial court held a new sentencing hearing on
November 1, 2018. The court sentenced appellant to the same prison term and imposed
the same restitution orders.
{¶7} Appellant filed a timely notice of appeal on December 19, 2018. She now
raises one assignment of error.
{¶8} Appellant’s sole assignment of error states:
THE TRIAL COURT FAILED TO PROPERLY SENTENCE THE
DEFENDANT TO CONSECUTIVE SENTENCES.
{¶9} Appellant argues that the trial court failed to properly sentence her to
consecutive sentences, asserting that the trial court did not make the requisite R.C.
2929.14(C)(4) findings.
{¶10} When reviewing a felony sentence, an appellate court must uphold the
sentence unless the evidence clearly and convincingly does not support the trial court's
findings under the applicable sentencing statutes or the sentence is otherwise contrary to
law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶ 1.
{¶11} R.C. 2929.14(C)(4) requires a trial court to make specific findings when
imposing consecutive sentences:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the 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.
Case No. 18 MA 0141
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(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.
{¶12} It has been held that although the trial court is not required to recite the
statute verbatim or utter “magic” or “talismanic” words, there must be an indication that
the court found (1) that consecutive sentences are necessary to protect the public from
future crime or to punish the offender, (2) that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger posed to
the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State
v. Bellard, 7th Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The court need not
give its reasons for making those findings however. State v. Power, 7th Dist. Columbiana
No. 12 CO 14, 2013-Ohio-4254, ¶ 38. A trial court must make the consecutive sentence
findings at the sentencing hearing and must additionally incorporate the findings into the
sentencing entry. State v. Williams, 7th Dist. Mahoning No. 13-MA-125, 2015-Ohio-4100,
¶ 33-34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶
37.
{¶13} At the resentencing hearing, the trial court made each of the required R.C.
2929.14(C)(4) findings.
{¶14} Specifically, as to the first requirement, the court found “that consecutive
sentences are necessary to protect the public from future crime, to punish the defendant.”
(Nov. 1, 2018 Tr. 14). As to the second requirement, the court found “they are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.” (Nov. 1, 2018 Tr. 14). And as to the third requirement, the
trial court found “at least two of the multiple offenses were committed as part of a course
of conduct, and the harm caused by two or more of these offenses so committed was so
Case No. 18 MA 0141
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great and unusual, that no single prison term for any of the offenses committed as part of
a course of conduct adequately reflects the seriousness of the offender’s conduct.” (Nov.
1, 2018 Tr. 14). The court repeated these findings in its sentencing judgment entry.
{¶15} Based on the above, it is clear that the trial court made the required
consecutive sentencing findings at the resentencing hearing and in its judgment entry.
{¶16} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
{¶17} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, P. J., concurs.
D’Apolito, J., concurs.
Case No. 18 MA 0141
[Cite as State v. Phillips, 2019-Ohio-4917.]
For the reasons stated in the Opinion rendered herein, the sole assignment of
error overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.