State v. Corbett

[Cite as State v. Corbett, 2023-Ohio-556.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 22CA0013
:
TIMOTHY CORBETT :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No.
2021CR00282
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 24, 2023
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES WILLIAM T. CRAMER
LICKING CO. PROSECUTOR 470 Olde Worthington Road, Ste. 200
ROBERT N. ABDALLA Westerville, OH 43082
20 S. Second St.
Newark, OH 43055
Licking County, Case No. 22CA0013 2
Delaney, J.
{¶1} Appellant Timothy Corbett appeals from the January 31, 2022 Judgment
Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from appellee’s bill of particulars filed June
21, 2021, and from appellee’s statement of fact at the sentencing hearing on January 31,
2022.
{¶3} In February 2021, special agents with the U.S. Postal Service Office of
Inspector General and the Central Ohio High Intensity Drug Trafficking Area Task Force
(HIDTA) noticed a pattern of packages sent between addresses associated with appellant
and California. Among those addresses were an apartment on Westmoor Avenue in
Newark and a residence on Harvestwood Lane in Columbus. Agents intercepted a
package appellant intended to mail to California containing a significant amount of U.S.
currency. On March 30, 2021, special agents with the Postal Service intercepted a
package from Imperial, CA addressed to the Harvestwood Lane address containing two
and a half pounds of methamphetamine.
{¶4} On or around April 13, 2021, CODE agents attached a GPS device to
appellant’s vehicle, a light blue 2008 Hyundai Santa Fe, Ohio temporary tag L005480,
registered in the name of Ashley Bales. Law enforcement surveilled appellant’s
movements in the vehicle.
{¶5} On May 15, 2021, around 5:56 pm, the GPS unit indicated the vehicle was
at Daley Storage Units on Broad Street in Pataskala. Office DeJesus of the Pataskala
Police Department drove by and observed a black 4-door sedan with a white male
Licking County, Case No. 22CA0013 3
standing outside the vehicle. DeJesus continued to watch the storage units and
eventually saw the Santa Fe exit with a female driver as the sole occupant. Around 10:00
pm, DeJesus saw the black sedan in the parking lot with the motor running. When the
sedan left, DeJesus ran the registration and found it was also registered to Ashley Bales.
DeJesus observed the vehicle enter a gas station parking lot nearby and saw a tall white
male matching appellant’s description enter and exit the gas station and then drive off.
{¶6} At 22:54 hours, DeJesus initiated a traffic stop of the black sedan for
speeding, and DeJesus knew appellant had active arrest warrants. DeJesus approached
the sedan and identified appellant as the driver.
{¶7} Appellant re-started the vehicle and fled from the traffic stop at speeds well
in excess of the posted speed limit, failing to stop at red lights and stop signs, and passing
other vehicles on the wrong side of the road. At one point, appellant stopped and started
to exit the vehicle, but then fled again.
{¶8} Appellant eventually left the roadway at Summit and Cable Road, driving
through a dirt field. Several law enforcement agencies located and apprehended
appellant. The vehicle was wrecked in a field just east of a tree line where appellant was
taken into custody.
{¶9} Officers inventoried the vehicle and 15 to 20 feet away from the vehicle
found a plastic baggie containing a crystal-like substance. The baggie contained
suspected methamphetamine and was submitted for testing. Appellant admitted he was
involved in drug trafficking activities and that he uses the U.S. Mail to facilitate those
activities. Appellant claimed there would be seven pounds of narcotics and over 3,000
Licking County, Case No. 22CA0013 4
pills in his Pataskala storage unit, as well as paperwork documenting his drug trafficking
conviction in CA.
{¶10} Officers obtained a search warrant for the storage unit and found a safe
which smelled strongly of a chemical odor believed to be methamphetamine. Inside,
officers found a blue cloth bag containing six plastic bags, all of which contained a crystal
substance; a Ziploc bag containing a crystal substance; and another bag containing a
large number of blue pills.
{¶11} All substances were submitted to the Central Ohio Regional Crime Lab for
testing and found to be 2,349.38 grams of methamphetamine and 296.3 grams of
fentanyl.
{¶12} On May 22, 2021, Pataskala police were dispatched to a farm across the
street from the crash site. The owner advised he was driving a tractor in a field when he
discovered a backpack containing a large clear baggie of a crystal substance and a bag
of blue pills. The substances matched the contraband found in appellant’s storage locker
days earlier. The substances in the backpack were submitted for testing and found to be
1,112 grams of methamphetamine and 130.8 grams of fentanyl.
{¶13} Appellant was charged by superseding indictment as follows: Count I,
aggravated possession of methamphetamine pursuant to R.C. 2925.11(A)(C)(1)(e), a
felony of the first degree; Count II, aggravated trafficking in methamphetamine pursuant
to R.C. 2925.03(A)(C)(2)(1)(f), a felony of the first degree; Count III, possession of
fentanyl-related compound pursuant to R.C. 2925.11(A)(C)(11)(g), a felony of the first
degree; Count IV, trafficking in fentanyl-related compound pursuant to R.C.
2925.03(A)(2)(C)(9)(h), a felony of the first degree; Count V, aggravated possession of
Licking County, Case No. 22CA0013 5
methamphetamine pursuant to R.C. 2925.11(A)(C)(1)(e), a felony of the first degree;
Count VI, possession of fentanyl-related compound pursuant to R.C.
2925.11(A)(C)(11)(g), a felony of the first degree; Count VII, aggravated possession of
methamphetamine pursuant to R.C. 2925.11(A)(C)(1)(b), a felony of the third degree; and
Count VIII, failure to comply with an order or signal of a police officer pursuant to R.C.
2921.331(C)(5)(a)(ii), a felony of the third degree.
{¶14} The indictment contained a number of specifications as follows. Counts I
through VII were accompanied by a U.S. currency forfeiture specification pursuant to R.C.
2981.02(A)(1)(B) and R.C. 2941.1417(A), in the amount of $3,774.47. Counts I through
VII also included a vehicle forfeiture specification pursuant to R.C. 2981.02(A)(1)(A) and
R.C. 2941.1417(A), relating to the blue Hyundai Santa Fe. Counts III and IV contained a
major drug offender specification pursuant to R.C. 2941.1410(B) and the drug involved is
a fentanyl-related compound. Count VI contained a major drug offender specification
pursuant to R.C. 2941.1410(B) and the drug involved is a fentanyl-related compound.
{¶15} Appellant entered pleas of not guilty and the trial court appointed counsel.
On August 26, 2021, counsel filed a motion to withdraw and the trial court appointed new
counsel. New counsel filed a motion to withdraw on September 13, 2021, citing a conflict
of interest and an irretrievable breakdown in communication. New counsel was appointed
on September 14, 2021, but filed a motion to withdraw on November 18, 2021.
{¶16} The trial court scheduled the latest motion to withdraw for an oral hearing
on November 29, 2021. At the hearing, defense trial counsel stated he sought to withdraw
because appellant demanded a level of attention he could not give. Counsel was
concerned because appellant faced significant prison time, including a minimum sentence
Licking County, Case No. 22CA0013 6
of 14 years and a maximum sentence of 66 years. Appellee offered a recommended
sentence of 15 years in exchange for appellant changing his pleas. The trial court noted
it wasn’t bound by any agreement between counsel, and asked appellant why he delayed
progress of the case by repeatedly seeking new counsel. Appellant replied that he
personally wanted to review all of the discovery, but the trial court responded that some
discovery was provided to attorneys only. The trial court determined appellant
misrepresented the facts underlying the purported problems with counsel and denied the
motion to withdraw.
{¶17} On January 31, 2022, appellant and defense trial counsel appeared before
the trial court and changed his pleas of not guilty to ones of no contest to Counts II and
IV. The remaining counts and the major-drug-offender specifications were dismissed.
The trial court found appellant guilty and sentenced him to a mandatory indefinite prison
term of 11 to 16 1/2 years upon Count II and an indefinite term of 5 to 7 1/2 years upon
Count IV. The terms are to be served consecutively for a total aggregate prison sentence
of 16 to 21 and a half years. The trial court also granted the cash and vehicle forfeiture
specifications.
{¶18} Appellant now appeals from the trial court’s Judgment Entry of January 31,
2022.
{¶19} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶20} “I. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS
RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS BY FAILING TO MAKE
Licking County, Case No. 22CA0013 7
ALL OF THE STATUTORY FINDINGS UNDER R.C. 2929.14(C)(4) BEFORE IMPOSING
CONSECUTIVE SENTENCES.”
{¶21} “II. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS
RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS BY IMPOSING
CONSECUTIVE SENTENCES WHEN THE RECORD DOES NOT SUPPORT THE
REQUISITE STATUTORY FINDINGS.”
{¶22} “III. INDEFINITE PRISON TERMS IMPOSED UNDER THE REAGAN
TOKES LAW VIOLATE THE JURY TRIAL GUARANTEE, THE DOCTRINE OF
SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES UNDER THE
FEDERAL AND STATE CONSTITUTIONS.”
ANALYSIS
I.
{¶23} In his first assignment of error, appellant argues the trial court failed to make
the requisite statutory findings for imposing consecutive sentences. We disagree.
Standard of review for felony sentences
{¶24} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.
In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an appellate court
may only review individual felony sentences under R.C. 2929.11 and R.C. 2929.12, while
R.C. 2953.08(G)(2) is the exclusive means of appellate review of consecutive felony
sentences. 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16-18.
{¶25} R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or
vacate a sentence and remand for resentencing where we clearly and convincingly find
Licking County, Case No. 22CA0013 8
that either the record does not support the sentencing court's findings under R.C.
2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise
contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.2d 659, ¶ 28; Gwynne, supra, ¶ 16.
{¶26} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. “Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161
Ohio St. at 477, 120 N.E.2d 118.
Requisite findings for imposition of consecutive sentences
{¶27} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption
by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.
Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 2014-Ohio-3177, ¶ 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
Licking County, Case No. 22CA0013 9
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.
{¶28} “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, but it has no obligation to state
reasons to support its findings.” State v. Newman, 5th Dist. Fairfield No. 20-CA-44, 2021-
Ohio-2124, ¶ 100, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, syllabus. In other words, the sentencing court does not have to perform “a word-for-
word recitation of the language of the statute.” Id. at ¶ 29. Therefore, “as long as the
Licking County, Case No. 22CA0013 10
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. If a sentencing court fails to make the findings required
by R.C. 2929.14(C)(4), a consecutive sentence imposed is contrary to law. Id. at ¶ 34.
The trial court is not required “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.
Proportionality: danger offender poses to public
{¶29} Appellant argues the trial court failed to make the requisite findings at the
sentencing hearing to impose consecutive sentences; specifically, appellant asserts the
trial court did not properly cite the latter of the two proportionality findings.
{¶30} First, having reviewed the entire record, we note appellant is a convicted
drug trafficker who pled no contest to trafficking of methamphetamine and fentanyl, a
deadly enterprise in which he utilized the U.S. Mail. When law enforcement attempted to
apprehend him, he fled. Nonetheless, appellee dismissed additional significant charges
and major-drug-offender specifications.
{¶31} At the sentencing hearing, regarding consecutive sentences, the trial court
stated:
* * * *.
I find consecutive sentences are necessary to protect the
public, punish you, not disproportionate to the crimes you’ve
committed or sentences imposed on others for similar conduct. I’d
Licking County, Case No. 22CA0013 11
also find consecutive sentences are necessary due to your criminal
history.
* * * *.
T. Sentencing, 25.
{¶32} Appellant concedes the trial court arguably addressed the seriousness of
his conduct with its reference to “the crimes you’ve committed,” but argues the trial court
did not cite the danger posed by appellant. [“…if the court finds…that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public…” R.C. 2929.14(C)(4).]
{¶33} The record does not indicate that the trial court ordered a pre-sentence
investigation; nor does it indicate appellant waived preparation of a P.S.I. The record does
contain, however, appellant’s criminal history and driving record in its non-public file. We
note appellant’s criminal history contains prior felony convictions of drug trafficking. See,
State v. Oder, 5th Dist. Licking No. 2021 CA 00061, 2022-Ohio-3048, ¶ 71.
{¶34} The issue posed by this case is whether we can discern that the trial court
engaged in the proper analysis regarding proportionality. In State v. Bonnell, the trial
court stated at the sentencing hearing where it imposed consecutive sentences, “Going
through all of the sentencing factors, I cannot overlook the fact your record is atrocious.
The courts have given you opportunities. * * * On the PSI pages 4 through 16, it's pretty
clear that at this point in time you've shown very little respect for society and the rule of
society. The Court feels that a sentence is appropriate.” Bonnell, 2014-Ohio-3177, ¶ 9.
The Ohio Supreme Court reviewed the requirements of R.C. 2929.14(C)(4) with the trial
court record in Bonnell to find the trial court had met some of the mandated statutory
Licking County, Case No. 22CA0013 12
findings of R.C. 2929.14(C)(4), but not all. The Supreme Court discerned from the trial
court's statement that Bonnell “had shown very little respect for society” so there was a
need to protect the public from future crimes or to punish Bonnell. Id. at ¶ 33. The Court
also concluded by the trial court's description of Bonnell's record as “atrocious” that it
knew of Bonnell's criminal record, and that record related to a history of criminal conduct
demonstrating a need to protect the public from future crime. Id. at ¶ 33. The Supreme
Court found the trial court, however, never addressed the proportionality of consecutive
sentences to the seriousness of Bonnell's conduct and the danger he posed to the public;
therefore, it vacated the sentence and remanded the matter to the trial court for
resentencing. Id. at ¶ 33, 37.
{¶35} In the instant appeal, appellant argues only that the trial court failed to
specify whether consecutive sentences were not disproportionate to the danger he poses
to the public under to R.C. 2929.14(C)(4). Unlike Bonnell, we can discern from the trial
court's statements at the sentencing hearing regarding the crimes appellant has
committed that the trial court addressed the proportionality of consecutive sentences.
Oder, supra, 2022-Ohio-3048, ¶ 73.1
{¶36} The trial court's imposition of consecutive sentences was not contrary to
law and appellant’s first assignment of error is overruled.
1 But see also, State v. Priest, 5th Dist. Licking No. 2022 CA 00022, 2022-Ohio-
4291 [finding trial court did not make requisite findings upon failure to address
proportionality].
Licking County, Case No. 22CA0013 13
II.
{¶37} In his second assignment of error, appellant argues the record does not
support the statutory findings for consecutive sentences. We disagree.
{¶38} According to the Ohio Supreme Court, “the record must contain a basis
upon which a reviewing court can determine that the trial court made the findings required
by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell, supra, ¶ 28.
“[A]s 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.
{¶39} R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate court to
modify or vacate a sentence based on its view that the sentence is not supported by the
record under R.C. 2929.11 and 2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729, 169 N.E.3d 649, ¶39. The Ohio Supreme Court further elucidated in State v. Toles,
166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,
precludes second-guessing a sentence imposed by the trial court based on its weighing
of the considerations in R.C. 2929.11 and 2929.12.”
{¶40} Upon review, we find that the trial court's sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. Appellant has not shown that the trial court imposed the
sentence based on impermissible consideration, meaning considerations that fall outside
those contained in R.C. 2929.11 and R.C. 2929.12. Further, the record contains evidence
supporting the trial court's findings under R.C. 2929.14(C)(4). Therefore, we have no
basis for concluding that it is contrary to law. State v. Worden, 5th Dist. Muskingum No.
Licking County, Case No. 22CA0013 14
CT2022-0030, 2022-Ohio-4648, ¶ 28; see also, State v. Washington, 5th Dist. Richland
No. 2020 CA 0066, 2022-Ohio-625, ¶123-124, appeal not allowed, 167 Ohio St.3d 1450,
2022-Ohio-2246, 189 N.E.3d 828.
{¶41} Appellant’s second assignment of error is overruled.
III.
{¶42} In his third assignment of error, appellant challenges the constitutionality of
the Reagan Tokes Act, specifically R.C. 2967.271, which codified hybrid indefinite prison
terms for first- and second-degree felonies. Appellant argues that the Act violates the
separation of powers doctrine, the constitutional right to trial by jury, due process and
equal protection. We disagree.
{¶43} We first note that pursuant to State v. Maddox, Ohio St.3d, 2022-Ohio-764,
N.E.3d, the Ohio Supreme Court held that constitutional challenges to the Reagan Tokes
Act are ripe for review on direct appeal. State v. Turner, 5th Dist. Licking No. 2022 CA
00040, 2023-Ohio-441, ¶ 40.
{¶44} In State v. Householder, 5th Dist. Muskingum No. CT2021-0026, 2022-
Ohio-1542, this Court set forth its position on the arguments raised in appellant's third
Assignment of Error:
For the reasons stated in the dissenting opinion of The
Honorable W. Scott Gwin in State v. Wolfe, 5th Dist. Licking No.
2020CA00021, 2020-Ohio-5501, we find the Reagan Tokes Law
does not violate Appellant's constitutional rights to trial by jury and
due process of law, and does not violate the constitutional
requirement of separation of powers. We hereby adopt the
Licking County, Case No. 22CA0013 15
dissenting opinion in Wolfe as the opinion of this Court. In so holding,
we also note the sentencing law has been found constitutional by the
Second, Third, Sixth, and Twelfth Districts, and also by the Eighth
District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist.
Montgomery No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist.
Logan No. 8-20-01, 2020-Ohio-5048; State v. Maddox, 6th Dist.
Lucas No. L-19-1253, 2022-Ohio-1350; State v. Guyton, 12th Dist.
Butler No. CA2019-12-203, 2020-Ohio-3837; State v. Delvallie, 8th
Dist. Cuyahoga No. 109315, 2022-Ohio-470. Further, we reject
Appellant's claim the Reagan Tokes Act violates equal protection for
the reasons stated in State v. Hodgkin, 12th Dist. Warren No.
CA2020-08-048, 2021-Ohio-1353.
{¶45} Based on the forgoing authority, the trial court did not err in sentencing
appellant to an indefinite non-life term. Turner, supra, 2023-Ohio-441, ¶ 42.
{¶46} Appellant's third assignment of error is overruled.
Licking County, Case No. 22CA0013 16
CONCLUSION
{¶47} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concurs in part and dissents in part.
Licking County, Case No. 22CA0013 17
Hoffman, J., concurring in part, and dissenting in part
{¶48} I concur in the majority's analysis and disposition of Appellant's third
assignment of error.
{¶49} I respectfully dissent from the majority's disposition of Appellant's first
assignment of error for the reasons set forth in my Opinion in State v. Priest, 5th Dist.
Licking No. 2022 CA 00022, 2022-Ohio-4291.