State v. Powell

[Cite as State v. Powell, 2018-Ohio-4549.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-12
v.
SHAWNA D. POWELL, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-13
v.
SHAWNA D. POWELL, OPINION
DEFENDANT-APPELLANT.
Appeals from Logan County Common Pleas Court
Trial Court Nos. CR17-04-0134 and CR17-09-0294
Judgments Affirmed
Date of Decision: November 13, 2018
APPEARANCES:
Eric J. Allen for Appellant
Holly N. Looser for Appellee
Case Nos. 8-18-12, 8-18-13
ZIMMERMAN, J.
{¶1} Defendant-Appellant, Shawna D. Powell, (“Appellant”) appeals the
judgments of the Logan County Common Pleas Court imposing consecutive
sentences on convictions arising out of two separate criminal indictments. On
appeal, Appellant alleges that the record does not support the imposition of
consecutive sentences. For the reasons that follow, we affirm the judgments of the
trial court.
Factual & Procedural Background – Case Number CR17-04-0134
{¶2} On March 25, 2017, Tom Snapp (“Snapp”) reported that Appellant had
stolen his checkbook out of his vehicle. (Doc. No. 33). Snapp further reported that
Appellant had been writing checks, to herself, from his business checkbook,
depositing them into her personal account, and then withdrawing the stolen funds.
(Id.). When Snapp confronted Appellant about the stolen checks, she offered to
work for him for free to pay back the money, which never occurred. (Id.). Snapp
reported that Appellant had stolen seventeen checks, which resulted in $5,095 being
taken from his account. (Id.).
{¶3} On April 17, 2017, the Citizens Federal Bank in Logan County
contacted the Bellefontaine Police Department and reported that Appellant was
attempting to cash one of Snapp’s stolen checks1. (Id.). When the teller delayed
1
The amount written on the stolen check was $854. (Doc. No. 33).
-2-
Case Nos. 8-18-12, 8-18-13
cashing the check, Appellant requested the check back so she could leave. (Id.).
The teller returned the check to Appellant, however, prior to leaving the bank, law
enforcement arrived and questioned Appellant. (Id.). Appellant told law
enforcement that she did not have the check, but ultimately confessed to eating the
stolen check when she saw police officers arrive. (Id.).
{¶4} In a separate matter, Appellant was booked into the Logan County jail
on drug related charges on May 3, 2017.2 (Id.). On May 4, 2017, an inmate at the
Logan County jail overdosed. (Id.). The inmate’s cell mate, who was found to be
in possession of heroin, admitted to police that the Appellant gave her the heroin (in
the jail) on May 3, 2017. (Id.).
{¶5} On June 14, 2017, Appellant was indicted by the Logan County
Common Pleas Court Grand Jury on six criminal charges, including: Count One,
Theft, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; Count Two,
Theft, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; Count Three;
Forgery, in violation of R.C. 2913.31(A)(3), a felony of the fifth degree; Count Four,
Tampering with Evidence, in violation of R.C. 2921.12(A)(1), a felony of the third
degree; Count Five, Illegal Conveyance of Drugs of Abuse onto Ground of a
Specified Governmental Facility, in violation of R.C. 2921.36(A)(2), a felony of the
third degree; and Count Six, Corrupting Another with Drugs, in violation of R.C.
2
This activity is not pertinent to the issue on appeal, however, this conduct was the basis for Counts Five
and Six in Appellant’s indictment. (See, Doc. No. 6; 68).
-3-
Case Nos. 8-18-12, 8-18-13
2925.02(A)(3), 2925.02(C)(1), a felony of the second degree. (Doc. No. 6).
Appellant was arraigned on June 20, 2017, and pled “not guilty” to all counts
contained in the indictment. (Doc. No. 17).
{¶6} After multiple bond hearings and pre-trial motions, a final pretrial was
held on the matter on January 3, 2018. (Doc. No. 61). Because a plea agreement
had not been reached, Appellant’s case was set for a jury trial on February 1, 2018.
(Id.).
{¶7} However, on January 25, 2018, Appellant appeared before the trial
court to change her plea. (Doc. No. 68). Appellant withdrew her former plea of
“not guilty” and entered guilty pleas to Count One, Theft, in violation of R.C.
2913.02(A)(1), a felony of the fifth degree, and to Count Four, Tampering with
Evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree. (Id.).
Thereafter, Counts Two, Three, Five, and Six of the indictment were dismissed.
(Id.).
{¶8} Appellant was sentenced by the trial court on March 9, 2018. (Doc. No.
71). The trial court found that a prison term was consistent with the purposes of
R.C. 2929.11, and sentenced Appellant to twelve months in prison on Count One
and thirty six months in prison on Count Four. (Id.). The trial court further ordered
that the two sentences be served concurrently to one another, but consecutive to the
prison term imposed in Appellant’s other pending Logan County criminal case, case
-4-
Case Nos. 8-18-12, 8-18-13
number CR17-09-0294. (Id.). Specifically, the trial court found that the
consecutive sentences imposed were necessary to protect the public and punish the
offender, because, in part, Appellant committed one or more of the offenses while
she was awaiting trial or sentencing. (Id.).
Factual & Procedural Background – Case Number CR17-09-0294
{¶9} On August 13, 2017, while case number CR17-04-0134 was pending in
the trial court, Appellant was found in possession of suboxone in the Logan County
Jail. (Doc. No. 1). Thereafter, on September 12, 2017, Appellant was indicted by
the Logan County Common Pleas Court Grand Jury on two criminal charges,
including: Count One, Illegal Conveyance of Drugs of Abuse onto Grounds of a
Specified Governmental Facility, in violation of R.C. 2921.36(A)(2), a felony of the
third degree; and Count Two, Possession of Drugs, in violation of R.C. 2925.11(A),
a felony of the fifth degree.
{¶10} Appellant was arraigned on September 25, 2017 in the trial court, and
pled “not guilty” to both counts. (Doc. No. 13).
{¶11} After multiple bond hearings and pre-trial motions, a final pretrial was
held on the matter on January 3, 2018. (Doc. No. 40). Because a plea agreement
had not been reached, Appellant’s case was set for a jury trial on February 1, 2018.
(Id.).
-5-
Case Nos. 8-18-12, 8-18-13
{¶12} However, on January 25, 2018, Appellant appeared before the trial
court to change her plea. (Doc. No. 46). Appellant withdrew her former plea of
“not guilty” and entered a guilty plea to Count One, Illegal Conveyance of Drugs of
Abuse onto Grounds of a Specified Governmental Facility, in violation of R.C.
2921.36(A)(2), a felony of the third degree. (Id.). After pleading, the trial court
dismissed Count Two of the indictment. (Id.).
{¶13} Appellant was sentenced by the trial court on March 9, 2018. (Doc.
No. 50). The trial court found that a prison term was consistent with the purposes
of R.C. 2929.11, and sentenced Appellant to twenty-four months in prison on Count
One. (Id.). The trial court further ordered that the twenty-four month sentence be
served consecutive to the prison term imposed in Appellant’s other Logan County
criminal case, case number CR17-04-0134. (Id.). Specifically, the trial court found
that consecutive sentences were necessary to protect the public and punish the
offender, because Appellant committed one or more of the offenses while she was
awaiting trial or sentencing. (Id.).
{¶14} From these judgments Appellant appeals, and presents the following
assignment of error for our review:
ASSIGNMENT OF ERROR NO. I
THE RECORD IN THIS MATTER DOES NOT SUPPORT THE
IMPOSITION OF CONSECUTIVE SENTENCES PURSUANT
TO STATE LAW R.C. 2929.14.
-6-
Case Nos. 8-18-12, 8-18-13
Appellant’s First Assignment of Error
{¶15} Appellant argues that because of her history of drug abuse, the trial
court erred by imposing consecutive prison sentences in her convictions. Further,
Appellant argues that community control sanctions, along with drug treatment
programs, would have been the proper sentence for the trial court to impose. For
the reasons that follow, we disagree.
Standard of Review
{¶16} “‘A sentence imposed by a trial court will not be disturbed absent a
showing by clear and convincing evidence that the sentence is unsupported by the
record; the procedure of the sentencing statutes was not followed or there was not a
sufficient basis for the imposition of a prison term; or that the sentence is contrary
to law.’” State v. Perez, 3rd Dist. Defiance No. 4-17-12, 2018-Ohio-635, ¶ 5 citing
State v. Ward, 3d Dist. Crawford No. 3–17–02, 2017–Ohio–8518, ¶ 25. See also,
R.C. 2953.08(G).
Analysis
{¶17} “In order to impose consecutive sentences, a trial court is required
under R.C. 2929.14(C)(4) to make certain findings for the record and to incorporate
th[ose] findings into the judgment entry.” State v. Taflinger, 3rd Dist. Logan No.
8-17-20, 2018-Ohio-456, ¶ 10 citing State v. Rutschilling, 3rd Dist. Mercer Nos. 10-
17-06, 10-17-07, 2017-Ohio-9252, ¶ 10. R.C. 2929.14(C)(4) requires:
-7-
Case Nos. 8-18-12, 8-18-13
(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.
(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.
R.C. 2929.14(C)(4).
{¶18} “When imposing consecutive sentences, a trial court must state the
required findings as part of the sentencing hearing, and by doing so it affords notice
to the offender and to defense counsel.” State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 29. See also, Crim.R. 32(A)(4). “And because a court
speaks through its journal, * * *, the court should also incorporate its statutory
findings into the sentencing entry.” (Internal citations omitted). (Id.). “However,
a word-for-word recitation of the language of the statute is not required, and as long
-8-
Case Nos. 8-18-12, 8-18-13
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.{¶19} In the case sub judice, the trial court made the following statements
regarding its sentencing of Appellant:
Trial Court: Okay. When formulating a sentence under the
felony guidelines, the Court is required to consider four factors.
They are to punish the offender, to rehabilitate the offender, to
deter the offender and those who are similarly situated, and,
finally, to protect members of society from future crime that this
defendant might commit.
The Court is required to do that by balancing the resources that
are available locally with those that the State has to offer and not
impose any unnecessary burden on either of those governmental
resources.
In your situation, I have to consider the need for incapacitation.
You know, the – you don’t do well on community control. It’s --
you don’t follow the rules, and so setting you up in a community
control environment is going to cause more problems than it’s
worth.
Deterring you and rehabilitating you and punishing you are all –
and protecting the public are all considerations that I’ve actually
– I’m balancing. The sentence I’m going to announce is not based
on any impermissible purposes, it is a sentence that I believe is
consistent with how I would treat other persons who are similarly
situated and who have your criminal record.
I believe the sentence is proportionate to the harm that you have
caused and the impact on the victim. I have considered the
seriousness and recidivism factors. And the question of merger is
inapplicable in the first case, 134. The theft and the tampering
cases, I believe, are wholly independent of one another. You can
-9-
Case Nos. 8-18-12, 8-18-13
steal a check without eating it, which is the tampering, so I don’t
believe those two cases merge for any purposes whatsoever. * * *.
***
The Court: * * *. There is normally a presumption against
imprisonment for a felony of the fifth degree, and the Court is
fully aware of that. And in the events – excuse me, with felonies
of the third degree, there is a neutrality that the Court is aware
of, and the Court has to weigh the factors when determining
whether a prison sentence is appropriate or not, and given her
past history, I cannot say that there is a presumption in favor of
community control. That’s a cinch.
And, accordingly, the Court is going to impose a prison term. I
wish I could say that community control was appropriate, but,
frankly, given the offender’s history, it would – she is not
amenable to community control. In imposing – failure to impose
a prison term would simply demean the seriousness of her offense
and fail to address her need for punishment, rehabilitation, and
deterrence and ultimately protect the public from her future
crimes.
***
The Court: Because the Court finds that that is necessary to
punish the offender and protect her – excuse me – protect the
public from her future crime and also gives the offender
additional time to engage in meaningful rehabilitation while she
is incarcerated and does serve to deter her from future crimes that
she might commit when she is released.
Furthermore, it will punish her. And the Court in making that
determination, notes she has an extensive criminal history and
consecutive sentencing [sic] are necessary to protect the public.
(Sentencing, 03/09/2018 Tr. at 18-22).
-10-
Case Nos. 8-18-12, 8-18-13
{¶20} Furthermore, the trial court reflected this analysis in its judgment entry
of sentencing, wherein it found:
The Court finds that consecutive sentences are necessary to protect
the public from future crime and/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. 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.
(CR17-04-0134, Doc. No. 71 at 2; CR17-09-0294, Doc. No. 50 at 2).
{¶21} In reviewing the record before us, it is clear that the trial court
determined consecutive sentences were necessary to protect the public because of
Appellant’s lengthy criminal history. Furthermore, Appellant showed no indication
of ceasing her criminal activity, because the charges in case number CR17-09-0294
occurred while another criminal case, case number CR17-04-0134, was pending
against her in the trial court.
{¶22} Thus, in our review of the record, we find that competent and credible
evidence exists in the record that the trial court reviewed the required statutory
findings, and engaged in an appropriate analysis as to the need for and
proportionality of consecutive sentences. Moreover, we find that the judgment entry
of sentencing reflects that the trial court considered the proper statutory findings in
imposing consecutive sentences in Appellant’s separate cases. As such, Appellant
-11-
Case Nos. 8-18-12, 8-18-13
has failed to show, by clear and convincing evidence, that the trial court’s sentence
was unsupported by the record. Accordingly, we find Appellant’s sole assignment
of error not well taken, and we overrule the same.
Conclusion
{¶23} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we overrule Appellant’s sole assignment of error
and affirm the judgments of the Logan County Common Pleas Court.
Judgments Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
-12-