[Cite as State v. Moore,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2014-G-3195 - vs - :

JOHNATHAN M. MOORE, :

Defendant-Appellant. :

Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 13 C 000111.

Judgment: Affirmed.

James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).

Matthew W. Weeks, Carl P. Kasunic Co., L.P.A., 4230 State Route 306, Building I, Suite 300, Willoughby, OH 44094 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Johnathan M. Moore, appeals from the judgment of the Geauga

County Court of Common Pleas, sentencing him to an aggregate term of 13 years

imprisonment. We affirm.

{¶2} Appellant and his cousin, Joshua Moore, planned the robbery of the

Newbury Pharmacy, owned and staffed by the Martin family. On July 11, 2013,

appellant provided Rashad Muhammad with a “.38 Special” and dropped Muhammad and a co-defendant, Zachary Tiggs, off at the pharmacy. While Tiggs diverted the

attention of the clerk at the front of the store, Muhammad robbed the pharmacist of

controlled narcotics at gunpoint. The individuals hastened to the exit of the store and

appellant drove them away from the scene. An M-4 rifle was in the vehicle with

appellant while the robbery occurred. Appellant was later arrested.

{¶3} On August 23, 2013, appellant was indicted on one count of complicity to

commit aggravated robbery, a felony of the first degree, in violation of R.C.

2911.01(A)(1), with a firearm specification and a forfeiture specification; one count of

complicity to commit kidnapping, a felony of the first degree, in violation of R.C.

2905.01(A)(2), with a firearm specification and a forfeiture specification; two counts of

obstructing justice, felonies of the third degree, in violation of R.C. 2921.32(A)(2) and

(C)(4); one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony

of the third degree; one count of complicity to commit theft of drugs, in violation of R.C.

2913.02(A)(1) and (B)(6), with a firearm specification and a forfeiture specification; and

one count of improperly furnishing firearms to a minor, in violation of R.C.

2923.21(A)(3), a felony of the fifth degree.

{¶4} On December 9, 2013, appellant entered a plea of guilty to complicity to

commit aggravated robbery, a felony of the first degree, with a firearm specification;

tampering with evidence, a felony of the third degree; and improperly furnishing firearms

to a minor, a felony of the fifth degree. After a sentencing hearing, appellant was

sentenced to an aggregate term of 13 years imprisonment. He now appeals his

sentence.

{¶5} In reviewing felony sentences, this court has utilized two seemingly

distinct standards. On one hand, this court has stated it reviews felony sentences

2 pursuant to the two-step approach set forth in State v. Kalish,

, 2008-

Ohio-4912, ¶26. Under the first prong, appellate courts “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.”

“If this first prong is

satisfied, the trial court's decision in imposing the term of imprisonment is reviewed

under the abuse-of-discretion standard.”

{¶6} This court has also observed, however, that “[b]ecause a trial court is

statutorily mandated to make findings under R.C. 2929.14(C)(4) before it can impose

consecutive sentences, the findings are not within the court’s discretion. In this respect,

post H.B. 86, it follows that the standard set forth under R.C. 2953.08 is a more

appropriate standard for an appellate court’s review of consecutive sentences.” State v.

Cornelison, 11th Dist. Lake 2013-L-064,

.

{¶7} Our use of the foregoing, ostensibly different, standards of review may

initially appear inconsistent. In practice, however, there is no real distinction between

the two standards. The point of retaining Kalish for reviewing general felony sentences

is merely to underscore the trial court has discretion to enter sentence within a

respective felony range. Accordingly, the analysis employed under either standard will

inevitably be the same.

{¶8} Appellant’s first assignment of error provides:

{¶9} “The trial court erred when it imposed consecutive sentences on John

without making the necessary findings required by O.R.C. 2929.14(C)(4).”

{¶10} Consecutive sentences can be imposed, pursuant to R.C. 2929.14(C)(4),

if the court finds (1) a consecutive sentence is necessary to protect the public from

future crime or to punish the offender and (2) consecutive sentences are not

3 disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public. In addition to these two factors, the court must find one of

the following three factors:

{¶11} (a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing * * * or was

under post-release control for a prior offense[;]

{¶12} (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 * * * adequately

reflects the seriousness of the offender’s conduct[; or]

{¶13} (c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶14} Appellant acknowledges that the trial court found consecutive sentences

were necessary to punish him. Appellant further recognizes the trial court found the

sentences were not disproportionate to the seriousness of his conduct. Appellant

maintains, however, the trial court failed to identify how, pursuant to R.C.

2929.14(C)(4)(b), “[a]t 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 * * * adequately reflects the seriousness of the offender’s conduct.” And,

appellant contends, the record does not support this finding because Muhammad’s use

of the weapon he provided was an element of the crime of complicity to aggravated

4 robbery. Because of this, he argues, there was no distinct harm resulting from each

discrete crime. Thus, appellant maintains, the trial court’s imposition of consecutive

sentences is clearly and convincingly contrary to law. We do not agree.

{¶15} The language of the statute simply requires a court to find the harm that is

caused by two or more offenses was so great or unusual that no single prison term

would reflect the seriousness of the conduct. Nothing in the language of the statute

suggests each of the multiple offenses must cause some harm independent from the

other(s); rather, the facts of a case must simply support a finding of great and unusual

harm from the multiple offenses that were a part of at least one course of conduct.

{¶16} In this case, the record demonstrates that appellant planned the robbery

and provided the principal robber, a juvenile, with the firearm to effectuate the crime.

Further, at sentencing, the court heard statements from the victims emphasizing how

they have been terrorized by the memory of the robbery. Not only did they lose the

prescription narcotics that were stolen from the store, they also lost a sense of security

that they have been unable to reclaim since the incident. When the record is viewed as

a whole, we conclude there was an adequate basis for the court to conclude that,

through a course of conduct, including the planning of the entire criminal enterprise, the

harm caused by the offenses of furnishing a firearm to a minor and complicity to

aggravated robbery, was so great or unusual that no single prison term would

adequately reflect the seriousness of appellant’s conduct. We therefore hold the trial

court’s imposition of consecutive sentences was not clearly and convincingly contrary to

law.

{¶17} One final issue must be addressed. The trial court, in imposing

consecutive sentences, made appropriate statutory findings pursuant to R.C.

5 2929.14(C)(4) at the sentencing hearing. It failed, however, to incorporate those

findings into the judgment on sentence. In State v. Bonnell,

, 2014-

Ohio-3177, the Ohio Supreme Court recently stated, because a court speaks through its

judgment entry, it “should also incorporate its statutory findings into the sentencing

entry.” Id. at ¶29. The Court emphasized that a “word-for-word recitation of the

language of the statute is not required” so long as the appellate court can discern that

the trial court engaged in the correct analysis and determined that the record supports

the findings. Id.

{¶18} The Court further observed that a sentencing 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[.]” Id. at

¶30. Instead, the court ruled that such an error is merely a clerical mistake that can be

corrected via a nunc pro tunc entry to reflect the findings that were made in open court.

Id. Such an omission does not require a new sentencing hearing. Id.

{¶19} In this matter, the trial court made the necessary findings at the

sentencing hearing that were supported by the record. These necessary statutory

findings, however, were omitted from its judgment entry. The omission in this matter

was merely clerical and, as a result, was capable of correction through a nunc pro tunc

entry. Pursuant to a temporary remand order entered by this court, the trial court

corrected the omission by way of a nunc pro tunc judgment entry filed September 29,

2014.

{¶20} Appellant’s first assignment of error lacks merit.

{¶21} Appellant’s second assignment of error provides:

6 {¶22} “The trial court committed prejudicial error and abused its discretion when

it sentenced John to a total of thirteen (13) years for the convictions. In doing so the

trial court abused its discretion when applying the overriding purposes of felony

sentencing set forth in O.R.C. 2929.11 and the seriousness and recidivisim factors set

forth in O.R.C. 2929.12.”

{¶23} Appellant contends the trial court abused its discretion in imposing

sentence because it failed to fully consider the factors under R.C. 2929.11 and R.C.

2929.12. We do not agree.

{¶24} At the sentencing hearing, the trial court made the following statements

prior to ordering appellant to serve an aggregate prison term of 13 years:

{¶25} This was a, you planned, you played a big role in planning this

robbery. In fact, the record reveals you used your Iphone to go into

the pharmacy a week ahead of time and to film [it]. You cased it, in

other words, and you used that same Iphone during the get-a-way

to communicate with Joshua so he would know where you were,

and vice versa, and to help facilitate the offense.

{¶26} You not only provided the get-a-way car, the one that you borrowed

from your acquaintance or whomever, you drove it. You drove it.

And you were the chauffer, so-to-speak, tongue in cheek, of Tiggs

and Muhammad.

{¶27} And this effort of yours to avoid Muhammad’s shooting somebody

else, well, yeah. I could understand Mr. Petersen wanting to bring

that out. That’s what a good lawyer does, is bring out the positive.

7 {¶28} But go back to the root cause. The reason Muhammad was there

because of you because you recruited Tiggs who in turn brought

Muhammad with him, and you went along with it.

{¶29} You started this chain of events. You were a primary mover, and

you then handed the gun, a loaded 38 Smith and Wesson handgun,

you handed it to Muhammad who looked like, well, he is a juvenile.

He looks like a juvenile. You gave it to that guy, a guy from Detroit

who you barely knew, other than he said here he was a gang

member. Maybe you didn’t know that.

{¶30} But he was a 17 year old. Who knows what juveniles do. You give

him a gun that’s loaded and tell him, go rob a store. Who knows

what that guy is going to do.

{¶31} So this is a huge factor. You are the last person that had an

opportunity to say I am not going to give this gun to this kid. Kids

do all kinds of nutty things when they are trying to prove their

bravado. Adults, too. But a kid, a 17 year old who is trying to

move. He is a tough guy. That’s like mixing dangerous chemicals

together.

{¶32} And it is true, I am not holding you responsible for bringing

Muhammad. It is true you recruited Tiggs, who brought

Muhammad. But it was you who turned over the gun to

Muhammad.

8 {¶33} I mean, and you, you brought Tiggs, a mercenary, brought him

down here from Detroit, brought him into our community and you

put him up to this, you and Joshua, the two of you.

{¶34} And for what? For illegal drugs. For drugs. And your counsel

wisely has conceded the harm to these victims in 911 to date is a

long time, and I am sure it is going to be at least that long for the

victims, too, in resolving, if there is resolution of the psychological

effect of what went on that day and the what ifs, and that haunts the

victims of this crime.

{¶35} This was organized. This was scripted. This was a long time in the

making. This wasn’t an impulsive, hey, let’s grab this gun and go in

there and stick them up and see if we could bet a bag of drugs and

a handful of money and get out of here.

{¶36} You had a multitude of opportunities to get out of this scenario. But

you stuck with the plan. I will give you that. You were sober

enough and you were clear headed enough to stick with this whole

plan and execute it.

{¶37} So I don’t have a whole lot of confidence in the argument that tries

to paint you as the lesser of two evils. You and Joshua did this

together. He was the computer guy, and you were the

implemented guy and got Tiggs and handed him this gun and drove

the getaway car and related.

{¶38} So you are joined at the hip with him, and I have considered that

you are a drug addict. Okay. I have considered that, and I have

9 considered that you have had a horrible childhood, dysfunctional,

no doubt about it. I have considered that, and to a degree, that has

some mitigating factors. However it is not a defense, and it hasn’t

been argued as a defense here. And it doesn’t give you a free

pass.

{¶39} And I note this too. There are others who had just as rough a life

as you that were just as addicted as you were and didn’t do this,

even though they were just as desperate for drugs as you may

have been. But they had in them not to do this. I am not going to

do this. Instead, they walked away from it, or did something else.

{¶40} You have had prior brushes with the law. You don’t have an

extensive record, and you have done some time in jail. You have

had some opportunities to rehab. You had three years of sobriety.

You had that chance to say, I am stopping now. I have been sober

for three years. It is discouraging that drugs once again lead

people to do these dastardly deeds or play a hand in it.

{¶41} So while I recognize some mitigating factors here, I think perhaps a

greater force is that I do think you have shown some remorse. I am

always really skeptical about remorse that is expressed on the eve

of sentencing. But you throughout did seem to have remorse, I felt

some genuine remorse. Maybe it was a product of having sobered

up. But I don’t know. That doesn’t wipe the slate clean, by any

means.

10 {¶42} Both R.C. 2929.11 and R.C. 2929.12 provide general guidance for a

sentencing court imposing every felony sentence. State v. Foster,

,

, ¶36. A court is not mandated to engage in factual findings under the

statutes, but must simply “consider” the statutory factors. Id. at ¶42. To the extent the

record evinces the requisite consideration of the applicable seriousness and recidivism

factors, the court has met its obligation. State v. Arnett,

(2000).

{¶43} The court’s statements on record demonstrate it gave due consideration to

all relevant factors in imposing sentence. It emphasized appellant’s role as a principal

organizer in this robbery, his act of providing Muhammad with a firearm, and providing

transportation to the pharmacy and a getaway vehicle after the robbery. The trial court

stressed that it had fully considered the relevant mitigating factors in this case, but also

noted these factors did not outweigh the seriousness of crimes or the significance of

appellant’s role. We therefore conclude the trial court gave adequate consideration to

the statutory factors under R.C. 2929.11 and R.C. 2929.12. Thus, we hold the trial

court neither abused its discretion in imposing the 13-year aggregate term, nor is the

sentence clearly and convincingly contrary to law.

{¶44} Appellant’s second assignment of error is without merit.

{¶45} Appellant’s third assignment of error provides:

{¶46} “The trial court erred and abused its discretion in sentencing John to nine

(9) years for complicity to commit aggravated robbery as this sentence is inconsistent

with sentences imposed for similar crimes by similar offenders. See O.R.C.

2929.11(B).”

{¶47} Appellant asserts the trial court committed prejudicial error in sentencing

him to a term of nine years for complicity to aggravated robbery because the sentence

11 is not consistent with sentences imposed for similar crimes committed by similar

offenders. Appellant lists various cases in which defendants, convicted of similar

crimes, were sentenced to lesser terms of imprisonment. He consequently asserts the

trial court abused its discretion in imposing the nine-year term. We do not agree.

{¶48} Preliminarily, in disposing of appellant’s second assignment of error, we

held the trial court sufficiently considered the factors set forth under both R.C. 2929.11

and R.C. 2929.12. As a result, our disposition of appellant’s second assignment of error

functioned to render his argument under this assignment of error effectively moot. We

shall nevertheless address a misconception inherent in appellant’s argument.

{¶49} This court has held that consistency in sentencing is not a matter of

comparing similar offenders or similar cases. State v. DeMarco, 11th Dist. Lake No.

2007-L-130,

. In holding that cases cannot be formulaically

compared in the abstract, we are ultimately acknowledging the circumstances and

realities attaching to one case will always differ from another. State v. Vanderhoof, 11th

Dist. Lake No. 2013-L-036,

, citing State v. Burrell, 11th Dist.

Portage No. 2009-P-0033,

. And, by designating a range from which a

judge can choose an appropriate sentence, Ohio law recognizes that more severe

punishments may be necessary to accomplish the purposes of felony sentencing, even

if two defendants commit the same type of crime.

“Consistency in sentencing is

accordingly measured by a trial court’s proper application and consideration of Ohio’s

sentencing guidelines.”

citing State v. Price, 11th Dist. Geauga No.

2007-G-2785,

. Thus, for an appellant to demonstrate

inconsistency in sentencing, he or she must show the trial court failed to properly

consider the relevant statutory factors and guidelines.

12 {¶50} As discussed under appellant’s second assignment of error, the trial court

gave careful and appropriate consideration to the relevant statutory guidelines when it

imposed its sentence. We therefore hold the trial court’s sentence was consistent

pursuant to R.C. 2929.11(B).

{¶51} Appellant’s third assignment of error lacks merit.

{¶52} Appellant’s final assignment of error provides:

{¶53} “The trial court abused its discretion when it denied John’s oral motion for

a continuance in order to investigate the issues of potential bias.”

{¶54} The Ohio Supreme Court has held “[t]he grant or denial of a continuance

is a matter which is entrusted to the broad, sound discretion of the trial judge. An

appellate court must not reverse the denial of a continuance unless there has been an

abuse of discretion.” State v. Unger,

(1981). An abuse of

discretion connotes the trial court’s “‘failure to exercise sound, reasonable, and legal

decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

,

¶62, quoting Black’s Law Dictionary 11 (8th Ed. 2004). In considering whether a trial

court abused its discretion when ruling on a motion for continuance, a reviewing court

must weigh any potential prejudice to the defendant against the trial court’s “right to

control its own docket and the public’s interest in the prompt and efficient dispatch of

justice.”

.

{¶55} In this matter, appellant moved for a continuance during the sentencing

hearing to investigate potential conflicts relating to (1) the pharmacy’s distribution of

medication to the county jail and (2) the victims’ alleged acquaintanceship with the trial

court. With respect to the first issue, the trial court found that any commercial

relationship between the jail or the sheriff’s office and the pharmacy is irrelevant to any

13 issue relating to the court’s imposition of sentence. Regarding the second issue, the

trial court, as well as the victims, stated they did not know one another and had never

even seen each other prior to the initiation of the underlying prosecution of each co-

defendant. The court further stated there had been a considerable amount of time

between appellant entering his guilty plea and sentencing. The court therefore

determined that the motion for continuance should be denied.

{¶56} Under the circumstances, the trial court weighed any potential prejudice to

appellant against its interest in controlling its docket and the public’s interest in the

prompt and efficient administration of justice. In doing so, we conclude it did not abuse

its discretion in denying appellant’s motion.

{¶57} Appellant’s fourth assignment of error is without merit.

{¶58} For the reasons discussed in this opinion, the judgment of the Geauga

County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.

14