State v. Mayweather

[Cite as State v. Mayweather, 2018-Ohio-1686.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JEREZ S. MAYWEATHER : Case No. 17-CA-84
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
2017 CR 00134
JUDGMENT: Affirmed in part, Reversed and
Remanded in part
DATE OF JUDGMENT: April 27, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL BENOIT JEREZ MAYWEATHER #A739-326, pro se
Assistant Prosecutor Noble Correctional Institution
Licking County Prosecutor's Office 15708 McConnelsville Road
20 South Second Street Caldwell, Ohio 43724
Newark, Ohio 43055
Anthony W. Stocco
Morrow, Gordon & Byrd, Ltd.
33 West Main Street P.O. Box 4190
Newark, Ohio 43058-4190
Licking County, Case No. 17-CA-84 2
Baldwin, J.
{¶1} Defendant-appellant Jerez S. Mayweather appeals his conviction and
sentence from the Licking County Court of Common Pleas on three counts of trafficking
in heroin. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 23, 2017, the Licking County Grand Jury indicted appellant on
three counts of trafficking in heroin in violation of R.C. 2925.03(A)(1)(C)(6)(a), felonies of
the fifth degree. At his arraignment on May 30, 2017, appellant entered a plea of not
guilty to the charges.
{¶3} A jury trial commenced on October 18, 2017. The following testimony was
adduced at trial.
{¶4} Deputy Sheriff Greg Collins testified at trial that he was employed through
the Licking County Sheriff’s Office and was assigned to the Central Drug Enforcement
Task Force, which is known as “CODE”. On December 15, 2016, CODE arranged a
controlled drug buy at the Family Dollar on East Main Street in Newark, Ohio. Deputy
Collins testified that the street name of the person who was the target of the drug buy was
“Capo”. A confidential informant (CI) initiated contact with Capo to set up the buy. Deputy
According to Deputy Collins, he went to the location to conduct surveillance and observed
a dark colored Ford Edge pull into the parking lot and pull off to the side. A black male
wearing all black clothing exited the vehicle and met with the CI. Both the CI and the man
then walked back to the vehicle. Deputy Collins observed the CI lean into the vehicle,
back out, and then close the door. After the CI walked away, the male got back into the
vehicle and drove away. Later the same day, the man was a passenger of a vehicle
involved in a traffic stop. Deputy Collins testified that one of the individuals involved in
Licking County, Case No. 17-CA-84 3
the traffic stop was identified as appellant and that appellant’s clothing matching that of
the man who had met with the CI earlier that day. He could not identify appellant as the
individual at the drug buy. According to Deputy Collins, the driver of the car that was
stopped was female. He testified that this was significant because a female had been
driving the vehicle that was driven to the drug buy. On cross-examination, he agreed that
he did not actually see the drug buy take place.
{¶5} The next witness to testify was Detective Kris Kimble of the Licking County
Sheriff’s Office who had been working with CODE since 2009. He testified that on
December 21, 2016, he participated in a controlled drug buy using a CI at the Giant Eagle
parking lot in the Southgate Shopping Center. Detective Kimball, who was conducting
surveillance, testified that he observed a red Kia pull up to the CI, the CI enter the vehicle,
the vehicle drive around that parking lot for approximately one minute, and then the CI
exit the vehicle. On cross-examination, Detective Kimble testified that he did not actually
observe a drug transaction and could not tell who the CI bought the drugs from.
{¶6} Detective Sergeant Alan Thomas, an employee of the Licking County
Sheriff’s Office who was assigned to CODE, testified that he participated in three
controlled buys involving a target known as Capo and/or Jerez Mayweather. With respect
to the December 15, 2016 incident, he testified that he was the supervisor for the buy and
was assigned to help with surveillance. He further testified that he “ran” the CI with respect
to the December 21, 2016 buy.
{¶7} Detective Thomas testified that, with respect to the December 15, 2016 buy,
he observed a dark colored Ford Edge pull into the Family Dollar parking lot and that the
vehicle was driven by a white female. He, however, did not witness the actual buy.
Detective Thomas further testified that he participated in the third buy, which occurred on
Licking County, Case No. 17-CA-84 4
December 27, 2016, and acted as supervisor and helped out with surveillance. While the
initial target location for the third buy was the Subway lot on Mount Vernon Road, the CI
walked from the lot and the drug buy occurred on the sidewalk in the area a few blocks
from the Subway. He testified that he followed the CI as she walked and saw the CI
approached by a black male, although he could not identify the man. Detective Thomas
testified that he lost sight of the CI and the black male.
{¶8} At trial, the CI, the CI, testified that she knew appellant as “Capo” and that
she had been introduced to him by a mutual acquaintance in October of 2016. She
testified that she agreed to work with CODE to have charges for possession of heroin
reduced from a felony of the fifth degree to a misdemeanor. According to the CI, she had
purchased drugs from appellant in the past and had his telephone number. When she
dialed his number, the name “Capo” appeared. With respect to the December 15, 2016
buy, the CI testified that she met with Detective Thomas and called Capo to purchase
drugs. The arrangement was for her to purchase $50.00 of heroin. After appellant, who
had been driven to the location by Detective Todd Green, did not show up, the CI called
him again. She, when asked, testified that she had been searched both before and after
being taken to the location of the buy.
{¶9} After the second call was placed, appellant came and the two walked over
to appellant’s vehicle, an SUV driven by a woman, where the CI gave appellant money
and he gave her heroin. The CI testified that she had received the money from CODE
and that after the buy, she went around the corner and met with Detective Green and
gave him the drugs. When asked if there was any doubt in her mind that appellant was
the person who she had given her money to and bought drugs from, the CI testified “No.”
Trial Transcript at 207.
Licking County, Case No. 17-CA-84 5
{¶10} The CI was next questioned about the December 21, 2016 buy. She
testified that she met with Detective Thomas and called Capo, telling him that she wanted
$50.00 worth of heroin. The CI testified that she saw a red car and that appellant was in
the passenger seat. According to the CI, she got into the back seat of the car and gave
appellant the money and he gave her the drugs. After driving around for a few minutes,
the CI exited the vehicle. The CI then walked to where Detective Thomas was located
and handed him the drugs. She testified that she was searched again.
{¶11} The CI also testified about the buy on December 27, 2016. She testified that
she called appellant and that they were supposed to meet at Subway, but that appellant
did not want to walk down Mount Vernon Road “because he felt he was a hot
commodity…” Trial Transcript at 216. The CI testified that she ended up walking up
Buckingham Street to Central Street and that the transaction occurred on the street.
According to her, she had continuous contact with appellant. After the two parted, the CI
went back to the Detectives, gave them the drugs, was searched again and filled out a
written statement. She testified that she had no doubt that appellant was the person who
she dealt with on December 27, 2016 to complete the drug buy.
{¶12} Recordings of the phone calls that the CI made to appellant to arrange the
buys were played for the jury. The CI testified that her voice and appellant’s voice were
on the recordings.
{¶13} On cross-examination, the CI testified that she performed approximately six
drug buys for CODE over a three month period beginning in December of 2016 and that
more than three were from appellant. She admitted to using heroin after she signed her
confidential informant contract on December 9, 2016 which prohibited her from using
Licking County, Case No. 17-CA-84 6
illegal drugs and to using heroin and other drugs the entire time that she was setting up
appellant. On redirect, the CI testified that she had been clean since February of 2017.
{¶14} Detective Todd Green of the Newark Police Department testified that he
was assigned to CODE and “ran” the first and third buys. He testified that he was in charge
of the CI for the two buys. According to Detective Green, when he met the CI for the first
time, she “threw the name Capo out.” Trial Transcript at 254. He testified that he had been
watching Capo for two to three months and that he recorded a telephone call between
the CI and Capo. Detective Green testified that he searched the CI’s person and her purse
before the buy on December 15, 2106 and gave her the pre-recorded buy money. The
buy money had been pre-recorded to make sure that they knew the serial numbers of the
money provided to the CI.
{¶15} Detective Green testified that after the CI made the buy on December 15,
2016, he picked her up and went to a secure location where appellant handed him the
heroin. He testified that he requested to have the Ford Edge that appellant was in stopped
because he wanted a positive ID on Capo. He further testified that he placed the
purchased heroin into evidence and requested that it be tested. Detective Green also
testified about the December 27, 2016 buy. He testified that he searched the CI’s person
and purse, provided her with pre-recorded buy money and fit her with a transmitter. He
testified that he was approximately 100 feet away with binoculars when he observed an
exchange between the CI and appellant. He asked Detective Thomas to pick the CI up.
After Detective Thomas obtained the drugs from the CI, he gave Detective Green the
drugs and the CI was searched. Detective Green placed the drugs into evidence.
{¶16} On cross-examination, Detective Green admitted that he did not actually
see the transaction occur between the CI and appellant on December 15, 2016. With
Licking County, Case No. 17-CA-84 7
respect to the December 27, 2016 buy, he admitted that he lost eye contact with the CI
while following appellant but testified that Detective Thomas did not.
{¶17} There was testimony at trial regarding the chain of custody with respect to
the heroin. At trial, Jennifer Acurio, a Bureau of Criminal Investigation forensic scientist,
testified that she tested substances purported to be from the three drug buys. She testified
that all contained heroin, a Schedule I drug.
{¶18} At the conclusion of the evidence and the end of deliberations, the jury, on
October 19, 2017, found appellant guilty of all three charges. As memorialized in a
Judgment Entry filed on October 19, 2017, appellant was sentenced to one year on each
count. The trial court ordered that the sentences run consecutively, for an aggregate
prison sentence of three years.
{¶19} Appellant filed a timely notice of appeal.
{¶20} Appellate counsel for appellant has filed a Motion to Withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
indicating the within appeal is wholly frivolous. Counsel for appellant has raised the
following potential assignment of error:
{¶21} THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES
WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW.
{¶22} Appellant was given an opportunity to file a brief raising additional
assignments of error. Appellant, in his brief, raises the following assignments of error;
{¶23} I. JEREZ MAYWEATHER’S CONVICTIONS WERE NOT SUPPORTED
BY SUFFICIENT EVIDENCE IN VIOLATION OF MR. MAYWEATHER’S RIGHT TO DUE
PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
Licking County, Case No. 17-CA-84 8
UNITED STATES CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶24} II. JEREZ MAYWEATHER’S CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF MR. MAYWEATHER’S
RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION 10,
ARTICLE 1 OF THE OHIO CONSTITUTION.
{¶25} III. JEREZ MAYWEATHER WAS DENIED DUE PROCESS BY
PROSECUTORIAL MISCONDUCT WHEN THE PROSECUTOR SUPPRESSED
EXCULPATORY IMPEACHING EVIDENCE, FURTHER, JEREZ MAYWEATHER WAS
DENIED THE EFFECTIVE ASSISTANCE OF DEFENSE COUNSEL WHEN HE FAILED
TO REQUEST A RECESS OR CONTINUANCE TO REVIEW THE SUPPRESSED
EVIDECE (SIC).
{¶26} IV. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES.
{¶27} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant's counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with
a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise
any matters that the client chooses. Id. Once the defendant's counsel satisfies these
requirements, the appellate court must fully examine the proceedings below to determine
if any arguably meritorious issues exist. If the appellate court also determines that the
Licking County, Case No. 17-CA-84 9
appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the
appeal without violating constitutional requirements, or may proceed to a decision on the
merits if state law so requires. Id.
{¶28} Counsel in this matter has followed the procedure in Anders, supra.
{¶29} We now will address the merits of the potential assignments of error.
APPELLANT’S PRO SE ASSIGNMENTS OF ERROR
I, II
{¶30} Appellant, in his first two potential assignments of error, argues that his
convictions for trafficking in heroin were against the manifest weight and sufficiency of the
evidence.
{¶31} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St. 3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for
a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St. 3d
259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme
Court held as follows:
An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable
doubt. The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.
Licking County, Case No. 17-CA-84 10
{¶32} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶33} Appellant, in the case sub judice, was convicted of three counts of trafficking
in heroin in violation of R.C. 2925.03(A)(1)(C)(6)(a). Such section states as follows:
{¶34} (A) No person shall knowingly do any of the following:
{¶35} (1) Sell or offer to sell a controlled substance or a controlled substance
analog;…
{¶36} (C) Whoever violates division (A) of this section is guilty of one of the
following:…
{¶37} (6) If the drug involved in the violation is heroin or a compound, mixture,
preparation, or substance containing heroin, whoever violates division (A) of this section
is guilty of trafficking in heroin. The penalty for the offense shall be determined as follows:
{¶38} (a) Except as otherwise provided in division (C)(6)(b), (c), (d), (e), (f), or (g)
of this section, trafficking in heroin is a felony of the fifth degree, and division (B) of section
2929.13 of the Revised Code applies in determining whether to impose a prison term on
the offender.
Licking County, Case No. 17-CA-84 11
{¶39} We find that, viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
of trafficking in heroin proven beyond a reasonable doubt with respect to the three counts.
There was testimony that the CI provided the Detectives with appellant’s telephone
number and called appellant to arrange to purchase heroin from appellant on the three
dates. Before the CI was sent out to meet with appellant, she was searched and provided
with pre-recorded money. She was searched again after each controlled buy. With
respect to the December 27, 2016 incident, Detective Green testified that he observed an
exchange between The CI and appellant. In all of the cases, the CI identified appellant
as the one who she bought drugs from and she provided the drugs that she had
purchased from appellant to one of the officers. There was testimony as to the chain of
custody and that all of the substances purchased testified positive for heroin.
{¶40} We further find that the jury did not lose its way in convicting appellant. While
there may have been inconsistencies in the testimony of the CI, the jury, as trier of fact,
was in the best position to assess her credibility. As noted by appellee during closing
arguments, “as much inconsistences as the confidential informant had, there’s also
significant amount of consistencies throughout the entirety of the testimony and the
evidence.” Trial Transcript at 349.
{¶41} Appellant’s first and second assignments of error are, therefore, overruled.
III
{¶42} Appellant, in his third potential assignment of error, contends that he was
denied due process of law “by prosecutorial misconduct when the prosecutor suppressed
exculpatory impeaching evidence.” He further argues that he was denied the effective
Licking County, Case No. 17-CA-84 12
assistance of trial counsel when his counsel failed to request a recess or continuance to
review such evidence.
{¶43} Appellant, in his brief, notes that the CI testified that she made more than
the three controlled buys from appellant and that she was told by a woman at the
Prosecutor’s Office that “something happened with the – with the testing of the dope, the
drugs.” Trial Transcript at 240. Appellant argues that this was exculpatory impeaching
evidence that should have been disclosed by appellee and that his trial counsel was
ineffective in failing to seek a recess or continuance to review such evidence.
{¶44} In Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
the United States Supreme Court established that the prosecution's failure to disclose
evidence favorable to the accused upon request constitutes a violation of the Fourteenth
Amendment's due process guarantee of a fair trial when “the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.
at 87. See also, State v. Johnston, 39 Ohio St. 3d 48, 529 N.E.2d 898 (1988). In addition
to the Brady standard set forth by the United States Supreme Court, Crim.R. 16 governs
the discovery process. Crim.R. 16(B)(5) requires that a prosecuting attorney disclose
“[a]ny evidence favorable to the defendant and material to guilt or punishment.” Brady,
supra, requires the disclosure only of “material” evidence, and evidence is “material” only
if there is “a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. Johnston, supra, at paragraph five
of the syllabus, following United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87
L. Ed. 2d 481 (1985).
{¶45} In the case sub judice, we fail to find that the CI’s vague statements as to
other controlled drug buys from appellant were exculpatory or material with respect to the
Licking County, Case No. 17-CA-84 13
three controlled buys that were at issue in this case. We cannot say that the Prosecutor
committed any misconduct or that trial counsel was ineffective.
{¶46} Appellant’s third potential assignment of error is, therefore, overruled.
IV, Counsel’s sole assignment of error
{¶47} Appellant, in his fourth potential assignment of error, maintains that the trial
court erred in imposing consecutive sentences pursuant to R.C. 2929.14(C)(4). We note
that appellant’s counsel, in his brief, also raises as a potential assignment of error the trial
court’s imposition of consecutive sentences.
{¶48} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences.
Appellant was sentenced to one year on each count. The trial court ordered that the
sentences run consecutively, for an aggregate prison sentence of three years.
{¶49} 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, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. This statute requires
the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton
Nos. C–110828 and C-110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶50} R.C. 2929.14(C)(4) provides as follows:
{¶51} 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
Licking County, Case No. 17-CA-84 14
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:
{¶52} (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.
{¶53} (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.
{¶54} (c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶55} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender's conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while 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 offenses 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 would adequately reflect the
Licking County, Case No. 17-CA-84 15
seriousness of the offender's conduct; or (c) the offender's criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, 2013
WL 2152488, ¶ 36.
{¶56} Recently, in Bonnell, supra, syllabus, the Supreme Court of Ohio stated
that:
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.
{¶57} Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶ 29. “[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. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶ 34. 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, ¶ 30.
{¶58} The trial court, in the case sub judice, stated on the record in sentencing
appellant to consecutive sentences:
{¶59} Well, Mr. Mayweather, the Court’s considered the purposes and principles
of sentencing set out under Section 2929.11, as well as the seriousness and recidivism
Licking County, Case No. 17-CA-84 16
factors set out under Section 2929.12. The purposes and principles of sentencing require
the Court to consider punishment, deterrence, rehabilitation, and as the prosecutor set
out, you come here from the State of Illinois to sell Heroin in some town in Ohio that can’t
even matter to you, and you’ve been involved in an organized criminal enterprise to do
this. You’re not that old. You’re 33. You’ve been to prison before. I don’t see any
redeeming quality here whatsoever.
On that basis, I’ll impose terms of one year in the state penitentiary on each of the
three counts and I’ll order they run consecutively with each other for a three-year prison
term.
{¶60} Transcript at 390-391.
{¶61} In its October 19, 2017 Judgment Entry, the trial court stated, in relevant
part, as follows:
{¶62} It is, therefore, ordered that the Defendant serve a stated prison term of one
(1) year on Count 1, one (1) year on Count 2, and one (1) year on Count 3 at the Orient
Reception Center. Counts 1, 2 and 3 are ordered to run consecutively.
{¶63} The Court has decided that the offender shall serve the prison terms
consecutively, pursuant to R.C. 2929.14(C)(4), because the Court finds that the
consecutive sentences are 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 the Court
also finds the following.
{¶64} The offender committed one or more of the multiple offenses as part
organized criminal activity; and the offender’s history of criminal conduct demonstrates
Licking County, Case No. 17-CA-84 17
that consecutive sentences are necessary to protect the public from future crime by the
offender.
{¶65} While the trial court made the necessary findings in its Judgment Entry, we
find that the trial court did not make the findings required by R.C. 2929.14(C)(4) at the
sentencing hearing.
{¶66} Appellant’s fourth potential assignment of error is, therefore, sustained.
{¶67} For the above reason, after independently reviewing the record, we reverse
the judgment of the Licking County Court of Common Pleas in part and remand this
matter to the trial court for the limited purpose of resentencing. The request to withdraw
as counsel for appellant is DENIED.
By: Baldwin, J.
John Wise, P.J. and
Gwin, J. concur.