[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-3183 - vs - :

JOSHUA M. MOORE, :

Defendant-Appellant. :

Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 13 C 000110.

Judgment: Affirmed.

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

Patricia J. Smith and Thomas Grist, 9442 State Route 43, Streetsboro, OH 44241 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Joshua M. Moore, appeals his sentence in the Geauga County

Court of Common Pleas following his guilty plea to aggravated robbery and obstructing

justice. Appellant argues that the trial court failed to make the statutory findings

required to support his consecutive sentences and that his sentence was

disproportionate. For the reasons that follow, we affirm. {¶2} On August 23, 2013, appellant was charged in a five-count indictment with

complicity to commit aggravated robbery, a felony of the first degree, with a firearm

specification and a forfeiture specification concerning his Colt M4 rifle and a Smith &

Wesson .38 revolver (Count One); complicity to commit kidnapping, a felony of the first

degree, with the same firearm and forfeiture specifications (Count Two); obstructing

justice, a felony of the third degree (Count Three); obstructing justice, a felony of the

third degree, with a forfeiture specification concerning his 2011 Dodge Ram pickup truck

(Count Four); and complicity to commit theft of drugs, a felony of the fourth degree, with

a firearm specification and a forfeiture specification concerning the same two firearms

(Count Five). Appellant pled not guilty.

{¶3} On October 28, 2013, appellant pled guilty to Count One, complicity to

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

and Count Three, obstructing justice, a felony of the third degree. In exchange for

appellant’s guilty plea, the state moved to dismiss the remaining counts and

specifications. Appellant agreed to the forfeiture of the two firearms listed in the

indictment. The court accepted appellant’s guilty plea; found him guilty; and ordered a

pre-sentence investigation.

{¶4} The case came on for sentencing on January 8, 2014. The prosecutor

advised the court of the details surrounding appellant’s crimes. Appellant and his

cousin Johnathan Moore planned to rob the Newbury Pharmacy, a small, family-owned

drug store in Newbury Township, of its controlled substances. In devising their plan,

appellant used his computer to look up the Newbury Pharmacy on Google Maps. He

obtained a map to the pharmacy and an escape route. Appellant and his cousin

2 enlisted the services of two men from Detroit, Zachary Tiggs and Reshad Muhammad,

to act as the gunmen.

{¶5} Upon their arrival in the Cleveland area, Tiggs and Muhammad met with

the Moores and agreed to participate in their plan to rob the pharmacy. Pursuant to the

plan, on July 11, 2013, Johnathan drove Tiggs and Muhammad to the Newbury

Pharmacy. Johnathan waited for Tiggs and Muhammad outside the store in the parking

lot in his car with an M4 rifle, a military weapon that appellant gave him, while Tiggs and

Muhammad went in the store armed with a loaded .38 revolver that the Moores gave

them. Appellant drove to the nearby West Woods Park and waited for his three co-

conspirators to arrive after they robbed the store.

{¶6} Once inside the store, Tiggs distracted Colleen Martin, the wife of the

owner/pharmacist Robert Martin, while Muhammad went behind the pharmacy counter

armed with a handgun. Muhammad pointed the revolver at Mr. Martin’s face and

demanded that he turn over all of the store’s controlled substances.

{¶7} At Muhammad’s command, Mr. Martin placed thousands of controlled

substance pills in a bag. Muhammad grabbed the bag. He and Tiggs then ran out of

the store and jumped in the getaway car driven by Johnathan.

{¶8} Johnathan then drove Tiggs and Muhammad to the location in West

Woods Park where the four co-conspirators agreed to meet. Tiggs and Muhammad

jumped into appellant’s pickup truck. They gave him the drugs they stole and returned

the two guns to him. Appellant then drove them to the Moores’ house in Ashtabula.

Johnathan drove there separately in his car. On arrival at the Moores’ house, the four

co-conspirators divided the stolen narcotics.

3 {¶9} Appellant then drove Tiggs and Muhammad to the Greyhound bus station

in Cleveland for their return trip to Detroit. On the way to Cleveland, appellant withdrew

$80 from an ATM machine to pay for their bus tickets.

{¶10} After obtaining the license plate number of Johnathan’s car from a

witness, Geauga County Sheriff’s detectives obtained his address and went to the

Moores’ house. At that time the detectives had not yet identified the gunmen. During

the detectives’ questioning, appellant lied to them to conceal the identity of the gunmen.

However, Johnathan gave the detectives information that led to their arrest. When the

gunmen were arrested in Detroit for this crime, police found several containers of

prescription narcotics on them that had been stolen during the robbery. The detectives

also found appellant’s M4 rifle and several bottles of narcotics hidden in the Moores’

home. Appellant and Johnathan were arrested. The detectives learned that appellant

and Johnathan planned to commit another robbery at a pharmacy in Ashtabula County

at around that time; however, that plan was aborted. Appellant’s three co-conspirators

were convicted and sentenced for their roles in this crime.

{¶11} Colleen Martin, the pharmacist’s wife, who was working in the store at the

time, told the court that after the robbery, she and Robert ran outside to get a

description of the getaway car. She said that every day she and her husband are

haunted by the memory of the four co-conspirators “scoping out” their community and

her family’s store. She said that every day, she and her husband relive the terrifying

events of this robbery in their minds. She said that while appellant did not actually

come in the store, he was part of the plan and made it happen, and in her view was just

4 as actively involved and guilty as the other three. In light of the trauma appellant had

caused her and her family, she asked the court not to be lenient in sentencing him.

{¶12} Robert Martin, the owner/pharmacist, said that he and his wife are worried

that the two men who were brought in from Detroit are affiliated with a gang whose

members will retaliate against them because they were caught. They are always

worried and on edge that they are being watched and targeted. Mr. Martin has had

many sleepless nights and many nights of waking from nightmares in which a gun is

pointed at him. He said his wife and three young children have also had many terrible

nightmares. Every time someone unfamiliar walks into the store, he becomes anxious

and his stomach churns. He said the pain these criminals have caused his family and

employees is immeasurable. His children worry about him and his wife going to work

each day. He said that he and his wife are afraid that when the four co-conspirators are

released from prison, they will come after them. He asked the court to sentence

appellant to the maximum sentence.

{¶13} Renee Krause, an employee of the pharmacy, said that at the time of the

robbery, Muhammad pointed a gun at her and then at her boss, Robert Martin. She

said that for the first time in her life, she is afraid to go to work. She said that, while she

used to enjoy new people coming in the store, now, every time someone new comes in,

she panics and is afraid she or her fellow employees will be hurt. She said she cannot

travel any further than the grocery store or to her relatives’ homes because she is afraid

she will be victimized. She often has nightmares of that day and her sleep has been

adversely affected. She is now treating with a therapist and takes anti-anxiety

medication. She lives in constant fear, anxiety, and anger.

5 {¶14} The trial court dismissed the counts and specifications in the indictment to

which appellant did not plead guilty. The court sentenced him on Count One, complicity

to commit aggravated robbery, to nine years in prison, plus an additional three years on

the firearm specification attached to that count. The court also sentenced appellant to

12 months in prison on Count Three, obstructing justice. The court ordered all

sentences to be served consecutively, for a total of 13 years in prison.

{¶15} Appellant appeals his sentence, asserting two assignments of error. For

his first assigned error, he alleges:

{¶16} “The trial court erred when it imposed consecutive sentences without

making the required findings pursuant to R.C. 2929.14(C)(4).”

{¶17} Appellant argues the trial court failed to make the factual findings

necessary to sentence him to consecutive sentences under the newly amended R.C.

2929.14(C)(4). In contrast, the state argues the trial court’s findings on the record at

sentencing satisfied the requirement for findings in that statute.

{¶18} As a preliminary matter, we note that appellant’s consecutive three-year

prison sentence for the firearm specification is statutorily mandated. R.C.

2929.14(B)(1)(a)(ii); R.C. 2929.14(C)(1)(a). Thus, the only consecutive term at issue is

the 12 months imposed for obstructing justice.

{¶19} After the enactment of H.B. 86, which became effective on September 30,

2011, a sentencing court is required to make certain factual findings when imposing

consecutive sentences. Pursuant to amended R.C. 2929.14(C)(4), consecutive

sentences can be imposed 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

6 sentences are not 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:

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

while the offender was awaiting trial or sentencing * * *[;]

{¶21} (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]

{¶22} (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.)

{¶23} Subsequent to this amendment in the consecutive sentencing law, Ohio

Appellate Districts have held that R.C. 2929.14(C)(4) requires trial courts to make the

foregoing findings when imposing consecutive sentences. State v. Stalnaker, 11th Dist.

Lake No. 2011-L-151,

, ¶15 (“H.B. 86 * * * amends R.C. 2929.14 and

requires fact finding for consecutive sentences.”).

{¶24} While the requirement that fact finding occur was re-enacted by H.B. 86,

the requirement that a sentencing court give reasons for imposing consecutive

sentences, which existed under former R.C. 2929.19(B)(2), was not re-enacted. State

v. Frasca, 11th Dist. Trumbull No. 2011-T-0108,

, ¶57. Thus, a

sentencing court is not statutorily required to give reasons for a consecutive sentence.

7

“[I]t is arguably easier to impose consecutive sentences today than it was under

former R.C. 2929.14(E)(4) because the revived version did away with the requirement

that the court justify its findings by giving reasons for making those findings.” State v.

Venes, 8th Dist. Cuyahoga No. 98682,

.

{¶25} Following the enactment of H.B. 86, several appellate districts have

adopted the standard of review set forth in R.C. 2953.08(G)(2) when reviewing felony

sentences. See e.g. State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, 25575, and

25576,

;

. R.C. 2953.08(G)(2) provides:

{¶26} The appellate court may * * * modify a sentence that is appealed

under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing. The appellate

court’s standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action

authorized by this division if it clearly and convincingly finds either

of the following:

{¶27} (a) That the record does not support the sentencing court’s

findings under * * * division * * * (C)(4) of section 2929.14 * * * of

the Revised Code * * *; [or]

{¶28} (b) That the sentence is otherwise contrary to law. (Emphasis

added.)

{¶29} “Because 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

8 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 No. 2013-L-064, 2014-

Ohio-2884, ¶35. In discussing the statutory standard of appellate review, the Eighth

District in

stated:

{¶30} It is * * * important to understand that the clear and convincing

standard used by R.C. 2953.08(G)(2) is written in the negative. It

does not say that the trial judge must have clear and convincing

evidence to support its findings. Instead, it is the court of appeals

that must clearly and convincingly find that the record does not

support the court’s findings. In other words, the restriction is on the

appellate court, not the trial judge. This is an extremely deferential

standard of review.

{¶31} Contrary to appellant’s argument, the trial court made all of the factual

findings required by R.C. 2929.14(C)(4)(b) to support his consecutive sentences under

that subsection. Specifically, the court found that consecutive prison terms were

necessary to protect the public from future crime and to punish appellant. R.C.

2929.14(C)(4). Further, the court found that consecutive sentences were not

disproportionate to the seriousness of appellant’s conduct and to the danger he poses

to the public.

In addition, the court found that at least two of the offenses were

committed as part of one or more courses of conduct, and that the harm caused by two

or more of the multiple offenses was so great or unusual that no one prison term for any

of the offenses committed as part of the course of conduct adequately reflects the

seriousness of appellant’s conduct. R.C. 2929.14(C)(4)(b).

9 {¶32} While the trial court was not required to give reasons for imposing

consecutive sentences, the court did so. The chief reason offered by the court was the

active role appellant played in planning and carrying out this crime. Appellant looked

up the Newbury Pharmacy on his computer; determined how to get there; and how to

escape once the robbery was completed. After the robbery, Tiggs and Muhammad

gave the stolen drugs to appellant and returned the two guns to him. Appellant used his

pickup truck as a getaway vehicle to take Tiggs and Muhammad to his house in

Ashtabula where they, along with Johnathan Moore, divided the stolen drugs. Appellant

then drove the gunmen to the bus station in Cleveland and purchased tickets for them

to return to Detroit.

{¶33} The court rejected appellant’s contention that his cousin was the “evil

genius” behind this crime and that he merely went along with it to help his cousin, noting

that appellant’s involvement was too intricate and too crucial. The court also rejected

his argument that he did not share in the stolen drugs.

{¶34} Further, the court found that appellant and Johnathan provided the guns

used to execute the robbery and that the rifle appellant gave to Johnathan to use

belonged to appellant. Moreover, the court found that appellant knew these guns, or at

least the .38, were going to be used to rob the pharmacy. The court found that this was

an organized criminal activity. This was a well-planned crime committed with

appellant’s full support and participation. The court found that appellant also planned to

rob a pharmacy in Ashtabula County. The court found that appellant was a real danger

to society and that he caused great psychological harm to the victims.

10 {¶35} The only finding of the trial court with which appellant takes issue is the

finding that harm resulted from two or more of the offenses committed. Such finding is

necessary to support consecutive sentences imposed under R.C. 2929.14(C)(4)(b), the

subsection used by the court to support appellant’s sentence. While appellant

concedes that harm resulted from the armed robbery, he argues the record does not

support the court’s finding that harm also resulted from his commission of the offense of

obstructing justice. We do not agree.

{¶36} First, we note that R.C. 2929.14(C)(4)(b) 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.

{¶37} In any event, we find that harm resulted from appellant’s commission of

the offense of obstructing justice. R.C. 2921.32(A)(2), obstructing justice, as pertinent

here, provides: “No person, with purpose to hinder the discovery, apprehension,

prosecution, conviction, or punishment of another for crime * * * shall * * * [p]rovide the

other person * * * with money, transportation, * * * or other means of avoiding discovery

or apprehension * * *.” (Emphasis added.)

{¶38} Here, as a result of the plan developed by appellant and his cousin, the

gunmen stole a large amount of controlled substances from the victims, using the

handgun appellant and Johnathan provided to them. Part of the plan was to assist

11 Tiggs and Muhammad in getting out of town as soon as the robbery was accomplished.

By providing Tiggs and Muhammad with money and transportation in order to hinder

their discovery, apprehension, prosecution, conviction, or punishment, appellant

committed the crime of obstructing justice, in violation of R.C. 2921.32. The Legislative

Committee’s comment to R.C. 2921.32 states:

{¶39} [R.C. 2921.32] consolidates and extends similar provisions in

former Ohio statute law, so that the new section is roughly

equivalent to the common law crime of being an accessory after the

fact. This section applies to improperly aiding any offender * * *,

and also specifies a number of prohibited acts in aid of an offender

which were not covered under former law * * *.

{¶40} By helping the gunmen flee to Detroit, appellant potentially made it more

difficult for the victims to prosecute and to receive restitution and increased their fear of

retaliation. Thus, by obstructing justice, appellant caused additional harm to the victims.

{¶41} Moreover, “obstructing justice” is an “offense against justice” under R.C.

Chapter 2921. The word “hinder” as used in R.C. 2921.32 (“to hinder the discovery,

apprehension, [or] prosecution * * * of another”) is defined as “to do harm to: impair,

damage * * *.” Webster’s Third New International Dictionary 1070 (1986). Thus, by

providing Tiggs and Muhammad with money and transportation in order to hinder their

discovery, apprehension, or prosecution, appellant additionally “harmed” the

administration of justice, i.e., the public.

{¶42} In view of the foregoing analysis, the record thus supports the finding that

harm resulted from both offenses to which appellant pled guilty. We therefore hold the

12 trial court’s imposition of consecutive sentences was not clearly and convincingly

contrary to law.

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

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

2929.14(C)(4) at the sentencing hearing. It did not, however, incorporate those findings

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

, 2014-Ohio-

3177, the Ohio Supreme Court recently concluded that, 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 determine that the record supports

the findings. Id.

{¶44} 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.

{¶45} 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

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

2014.

{¶46} Appellant’s first assignment of error is overruled.

{¶47} For his second and final assignment of error, appellant contends:

{¶48} “The trial court abused its discretion in imposing upon Appellant a

disproportionate, excessive, and unreasonable sentence.”

{¶49} Appellant challenges the term of years selected by the trial court in

imposing sentence. The trial court has full discretion to impose a prison sentence within

the statutory range. State v. Mathis,

,

, ¶37. If the trial

court had imposed maximum, consecutive sentences, appellant would have been given

17 years in prison. Since he was sentenced to 13 years, his sentence was within the

statutory range.

{¶50} Appellant argues that in making the following comment, the trial court

acted in an arbitrary fashion:

{¶51} I regard the planning * * *, the financing and the strategic brains

behind this event, * * * as being worse than what Tiggs and

Muhammad did. Muhammad became * * * a tool to the extent he

was much younger. * * * You guys, the Moore relatives, were the

planners * * * and you implemented this plan. * * * So I am imposing

a more strict sentence.

{¶52} Appellant argues this comment is evidence of an arbitrary attitude on the

part of the trial court and shows the court’s sentence was an abuse of discretion.

However, to the contrary, the record supported the court’s finding that appellant was the

14 mastermind behind this crime and actually implemented it, while Tiggs and Muhanmad

were merely pawns who followed the Moores’ orders. Thus, the court’s comment was

eminently reasonable and provided a sound rationale for the sentence.

{¶53} Next, appellant suggests his sentence was disproportionate because in

another case decided by another district a lesser sentence was imposed on another

offender for similar crimes. However, this court has repeatedly held that “sentencing

consistency is not derived from the trial court’s comparison of the current case to other

sentences given to similar offenders for similar offenses.” State v. Greitzer, 11th Dist.

Portage No. 2006-P-0090,

. Rather, it is the trial court’s proper

application of the statutory sentencing guidelines that ensures consistency.

Thus, in

order to show a sentence is inconsistent, a defendant must show the trial court failed to

properly consider the statutory factors and guidelines. Here, the trial court properly

considered these factors and guidelines as set forth in R.C. 2929.11 and R.C. 2929.12,

and thus did not abuse its discretion in sentencing appellant.

{¶54} Appellant’s second assignment of error is overruled.

{¶55} For the reasons stated in the opinion of this court, appellant’s assignments

of error lack merit and are overruled. It is the judgment and order of this court that the

judgment of the Geauga County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.

15