State v. Vanwinkle

[Cite as State v. Vanwinkle, 2020-Ohio-2783.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO,
CASE NO. 17-19-20
PLAINTIFF-APPELLEE,
v.
DONALD P. VANWINKLE, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Trial Court No. 17CR000025
Judgment Affirmed
Date of Decision: May 4, 2020
APPEARANCES:
Laura E. Waymire for Appellant
Timothy S. Sell for Appellee
Case No. 17-19-20
WILLAMOWSKI, J.
{¶1} Defendant-appellant Donald P. Vanwinkle (“Vanwinkle”) appeals the
judgment of the Shelby County Court of Common Pleas, alleging that the trial
court’s imposition of consecutive sentences was not supported by the record. For
the reasons set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On May 11, 2017, Vanwinkle was indicted on one count of aggravated
possession of drugs in violation of R.C. 2925.11(A); one count of possession of
drugs in violation of R.C. 2925.11(A); and one count of possessing criminal tools
in violation of R.C. 2923.24. Doc. 13. On June 8, 2017, Vanwinkle appeared for
his arraignment and entered a plea of not guilty. Doc. 32. He was released on bond.
Doc. 59. On September 1, 2017, Vanwinkle failed to appear for a pretrial hearing.
Doc. 59. On September 8, 2017, the trial court declared Vanwinkle’s bond forfeited
and ordered a warrant be issued for his arrest. Doc. 59.
{¶3} In 2019, the Kentucky Department of Corrections notified the State that
Vanwinkle was in their custody. Doc. 75. Vanwinkle had been convicted for
several offenses in Kentucky. Tr. 15. For these crimes, he received three ten-year
prison sentences. Tr. 15. One of these ten-year sentences was imposed
consecutively to the other two prison terms, giving Vanwinkle an aggregate
sentence of twenty years in prison. Tr. 15.
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{¶4} On August 27, 2019, Vanwinkle entered a plea agreement with the State
under which he pled guilty to one count of aggravated possession of drugs in
violation of R.C. 2925.11(A). Doc. 94. The remaining counts in the indictment
were dismissed. Doc. 106. On August 26, 2019, the trial court sentenced
Vanwinkle to a prison sentence of two years. Doc. 106. The trial court ordered the
sentence in this case to be run consecutively to the sentences Vanwinkle had to serve
in Kentucky. Doc. 106.
Assignment of Error
{¶5} The appellant filed his notice of appeal on October 7, 2019. Doc. 117.
On appeal, Vanwinkle raises the following assignment of error:
The trial court’s imposition of consecutive sentences was not
supported by the record
He argues on appeal that the facts in the record do not support the trial court’s
findings that his actions constituted a course of conduct under R.C.
2929.14(C)(4)(b) or that the harm from his offense was so great that a single prison
term would not reflect the seriousness of that offense under R.C. 2929.14(C)(4)(c).
Legal Standard
{¶6} R.C. 2929.14(C)(4) requires the trial court to make statutory findings
prior to imposing consecutive sentences * * *.” State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. R.C. 2929.14(C)(4) reads, in its
relevant part, as follows:
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(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.
(Emphasis added.) R.C. 2929.14(C)(4). “[T]he 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 at ¶ 28.
However, “no statute directs a sentencing court to give or state reasons supporting
imposition of consecutive sentences.” Id. at ¶ 27.
{¶7} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
‘only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
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otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam No. 12-16-15 and
12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St. 3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.
Clear and convincing evidence is that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but
not to the extent of such certainty as is required ‘beyond a
reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.
State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 12, quoting Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus
(1954).
Legal Analysis
{¶8} We begin our analysis by noting that Vanwinkle was informed in his
plea agreement that the maximum potential sentence that he faced was eight years
in prison and that the trial court only imposed a sentence of two years. Doc. 94. At
the sentencing hearing in this case, the trial court stated that
based upon a review of [Vanwinkle’s] entire history that
consecutive sentencing is necessary to protect the public from you
and to punish you and that consecutive sentencing is not
disproportionate to the seriousness of your conduct and to the
danger you pose to the public. Quite frankly, if I didn’t give you
consecutive sentencing, you’d get no penalty at all for the crimes
that * * * you committed in this county.
The Court is also gonna find that 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 were
so great or so unusual that no single prison term reflects the * * *
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seriousness of your conduct, and that your * * * history of
criminal conduct demonstrates that consecutive sentencing is
necessary to protect the public from future crime from you.
Tr. 16-17. Thus, the trial court found (1) that the offense was part of one or more
courses of criminal conduct and that the harm of the offense was so great that a
single prison term would not reflect the seriousness of the offense under R.C.
2929.14(C)(4)(b) and (2) found that consecutive sentencing was necessary to protect
the public from future crime under R.C. 2929.14(C)(4)(c). R.C. 2929.14(C)(4)(b-
c).
{¶9} Vanwinkle argues that the record does not support the trial court’s
finding under R.C. 2929.14(C)(4)(b) because the offense he committed in Shelby
County and the offenses that he committed in Kentucky were not part of one course
of criminal conduct. However, “R.C. 2929.14(C)(4)(b) applies to cases in which
two or more offenses ‘were committed as part of one or more courses of conduct,’
meaning that the offenses in this case need not have been connected.” (Emphasis
sic.) State v. McGinnis, 2d Dist. Greene No. 2018-CA-35, 2019-Ohio-3803, ¶ 26.
The record indicates that Vanwinkle committed the offense of aggravated
possession of drugs in Shelby County and then committed multiple offenses in
Kentucky, at the very least, several months later. Thus, these multiple offenses were
committed in separate courses of conduct.
{¶10} However, the trial court did not impose consecutive sentences because
it failed to understand that his offense in Shelby County was committed in a different
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course of conduct from the multiple offenses committed in Kentucky. Rather, the
trial court imposed consecutive sentences precisely because it recognized that these
were separate courses of conduct. The trial court stated, “[q]uite frankly, if I didn’t
give you consecutive sentencing, you’d get no penalty at all for – for the crimes that
–that you committed in this county.” Tr. 16.
{¶11} For this reason, the trial court stated that, if it ran his sentence
concurrently to those sentences imposed in Kentucky, Vanwinkle would only be
punished for one of these courses of conduct and would, in effect, not be punished
for his criminal conduct in Shelby County. The trial court determined that these
multiple offenses were committed in separate courses of conduct and that
Vanwinkle should receive some punishment for the course of conduct in which he
committed the offense of drug trafficking in Shelby County. The wording of R.C.
2929.14(C)(4)(c) allows the trial court to order consecutive sentences in this exact
type of situation. Thus, the trial court did not err in finding that R.C.
2929.14(C)(4)(c) was applicable in this case. Vanwinkle’s argument is without
merit.
{¶12} Vanwinkle also argues that the record does not support the trial court’s
finding under R.C. 2929.14(C)(4)(c) because he did not have a criminal history
before the age of forty. However, the record indicates that Vanwinkle was found to
be in possession of 1,044 tablets of oxycodone, forty-six tablets of alprazolam, and
eleven half pieces of alprazolam. Doc. 1, 13. A police report indicated that
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Vanwinkle was in possession of 69.4 times the bulk amount of oxycodone. Doc. 1.
At the sentencing hearing, Vanwinkle explained that he had an accident and took
opiates for pain management. Tr. 10, 11. He then encountered a number of setbacks
in his personal life and became an addict. Tr. 12.
{¶13} At the sentencing hearing, the trial court acknowledged that
Vanwinkle’s “record is – is somewhat remarkable,” saying that he
went 40 some years without – without any record at all of – of any
consequence. I don’t – I don’t think we found anything at all, not
even a traffic offense. But when you decided to go off the deep
end, you went off the deep end * * * in a * * * big way with the
number of – of offenses that you are sentenced for in – in
Kentucky. So the Court certainly takes in – into consideration
your – your lack of a previous record, criminal record.
On the other hand, the Court has to take into consideration the
huge quantity of drugs that you – you brought in – into this
county. As – as you probably are well aware, the opiate crises is
just – is just ongoing and it’s persons bringing drugs into this
community that continues to create that problem in – in this
county.
Tr. 16. Thus, the trial court noted the existing opioid crisis in considering the need
to prevent Vanwinkle from visiting future harm on the public. After reviewing the
evidence in the record, we conclude, there is some evidence in the record to support
the trial court’s finding.
Conclusion
{¶14} In the end, Vanwinkle has not shown by clear and convincing evidence
that the imposition of consecutive sentences is unsupported by the record.
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Vanwinkle’s sole assignment of error is overruled. Having found no error
prejudicial to the appellant in the particulars assigned and argued, the judgment of
the Shelby County Court of Common Pleas is affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls
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