[Cite as State v. Sari,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2016-L-109 - vs - :

JESSICA M. SARI, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas. Case No. 2016 CR 000170.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Anna C. Kelley, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Kevin M. Cafferkey, 55 Public Square, Suite 2100, Cleveland, OH 44113; and Barry T. Doyle, 23811 Chagrin Boulevard, Suite 227, Beachwood, OH 44122 (For Defendant- Appellant).

TIMOTHY P. CANNON, J.

{¶1} Appellant, Jessica M. Sari, appeals from the judgment of the Lake County

Court of Common Pleas sentencing her to a prison term of eleven years; ordering her to

pay restitution in the amount of $12,608.20, jointly and severally with her co-defendants;

and imposing a mandatory fine of $7,500.00. For the reasons that follow, we affirm the

judgment of the trial court. {¶2} On February 2, 2016, an affidavit on complaint was issued in the

Painesville Municipal Court alleging Ms. Sari had illegally conveyed prohibited items

onto the grounds of a detention facility. Ms. Sari was 22 years old at the time of the

offense and was being held at the Lake County Jail for a misdemeanor petty theft

offense. Ms. Sari was subsequently bound over to the Lake County Court of Common

Pleas on the charge.

{¶3} On June 2, 2016, Ms. Sari was indicted by the Lake County Grand Jury on

three counts: Count One, Illegal Conveyance of Drugs of Abuse onto the Grounds of a

Detention Facility, in violation of R.C. 2921.36(A)(2), a felony of the third degree; and

Counts Two and Three, Corrupting Another with Drugs, in violation of R.C.

2925.02(A)(3), felonies of the second degree.

{¶4} Ms. Sari entered into a plea agreement with appellee, the state of Ohio.

At Ms. Sari’s plea hearing on August 11, 2016, the indictment was amended by

agreement of the parties to reflect that imposition of a prison sentence is mandatory for

Counts Two and Three.

{¶5} At the plea hearing, the prosecution stated the evidence would have

shown, had the matter proceeded to trial, that on or about December 21, 2015, Ms. Sari

did knowingly convey onto the grounds of the Lake County Jail, a detention facility, a

drug of abuse, that being heroin, and did knowingly by any means, administer or furnish

to another, or induce or cause another to use a controlled substance and thereby

caused serious physical harm to the other person or caused them to be drug

dependent.

{¶6} Specifically, the prosecution stated Ms. Sari and her co-defendants,

Michael Beachler and Christine Martin, formulated a plan to bring heroin into the Lake

2 County Jail when appellant was released for a medical furlough. Christine, who was

also being held at the Lake County Jail, placed several phone calls to a friend outside of

jail between December 10 and December 17, 2015. Christine arranged for that friend to

send a $200.00 money order to Michael, who was Ms. Sari’s boyfriend at the time. On

December 19, 2015, Ms. Sari spoke to Michael on the phone several times regarding

the $200.00 and a transaction involving someone they referred to as “Hood.” Ms. Sari

was released from the jail on a medical furlough on December 21, 2015. Michael and

his step-father picked up Ms. Sari from the jail, took her to her medical appointment,

and returned her to the jail. Before Ms. Sari was booked into the jail, she concealed

heroin inside her vagina. The heroin was then distributed to several other inmates,

including Christine and Kristi Ellis; neither Christine nor Ms. Sari have specifically

accepted responsibility for distributing the heroin to Kristi, but neither of them dispute

that Kristi received a portion. The next day, December 22, 2015, Kristi was found

deceased in her jail cell, and Christine was found unresponsive and required

hospitalization after she was revived with Narcan.

{¶7} Ms. Sari orally admitted she was guilty of Count One and Amended Count

Two. The parties also agreed that Amended Count Two would include both victims,

Kristi and Christine. With approval of the parties, the trial court made a handwritten

notation on the written plea of guilty under Amended Count Two that states, “including

victim from Ct. 3.” The state agreed to move to dismiss Amended Count Three at the

time of sentencing and stated it would be recommending the maximum prison term for

Count One and Amended Count Two.

{¶8} The trial court found Ms. Sari’s guilty plea was knowingly, intelligently, and

voluntarily made. The trial court accepted the plea and found Ms. Sari guilty of Count

3 One and Amended Count Two; Amended Count Three would be dismissed upon

completion of sentencing.

{¶9} The matter was referred to the Lake County Adult Probation Department

for preparation of a presentence investigation report (“PSI”), a drug and alcohol

evaluation, and to obtain the necessary victim impact statement.

{¶10} Ms. Sari filed a sentencing memorandum in mitigation of her sentence.

The memorandum discussed her genuine remorse, as Kristi had been a good friend of

hers even outside the jail setting. It also discussed Ms. Sari’s lack of a prior felony

record or history of violence; her record includes only misdemeanors “consistent with a

drug addict,” ranging from possession of marijuana to petty theft. The memorandum

also discussed a troublesome family history: when Ms. Sari was 15 years old, her father

passed away from an accidental overdose of prescription methadone while she was

asleep in an adjoining room of the house; not long before that, Ms. Sari was allegedly

sexually abused by a carnival worker who was later imprisoned on similar charges

brought by Ms. Sari’s friend. The memorandum also mentioned Ms. Sari’s extensive

drug addiction history, beginning at an early age, which culminated in the daily use of

heroin for over four years before her arrest. It also referenced Ms. Sari’s complete

psychiatric assessment developed by Dr. Amy Ginsberg, a forensic/clinical

psychologist, and the statement made by a psychologist at the Lake County Psychiatric

Clinic in her drug and alcohol evaluation report that Ms. Sari “needs extensive help” with

her drug addiction. Finally, the memorandum discussed the sentences received by her

co-defendants: Michael pled guilty to Illegal Conveyance and received 30 months in

prison; Christine pled guilty to Illegal Conveyance and Attempted Corrupting Another

with Drugs and received 7 years in prison. It further stated that a review of some of the

4 similar cases throughout Ohio shows a range of sentences between 2 and 8 years,

most of which involve manslaughter convictions. News articles covering these similar

cases and Dr. Ginsberg’s psychological assessment were attached to the

memorandum. In its conclusion, the memorandum stated, “[t]he defendant and her

attorneys asks [sic] this Honorable Court to consider a sentence similar to Christine

Martin.”

{¶11} At Ms. Sari’s sentencing hearing on September 22, 2016, the trial court

heard from defense counsel on her behalf. They spoke extensively about the tragedy of

her father’s death and Ms. Sari’s extensive struggle with drug addiction as a result.

They also outlined Dr. Ginsberg’s psychological assessment, which diagnosed Ms. Sari

with major depressive disorder, post-traumatic stress disorder, and five different severe

drug disorders (opioids, sedatives, alcohol, stimulants, and cannabis). They read into

the record a portion of Dr. Ginsberg’s report:

From a psychological perspective, the above-mentioned factors constitute mitigating factors. It is my opinion that these factors warrant considerable consideration, at least with respect to the mitigation of the penalty for the alleged current offenses, especially given that these offenses are directly related to her mental health disorders, major depression and PTSD, as well as substance abuse issues.

{¶12} The trial court then heard from Ms. Sari’s mother and sister. Ms. Sari also

spoke on her own behalf, stating she was nine months sober at the time of the hearing.

She acknowledged her fault for what happened and expressed remorse and guilt; she

stated she experiences night terrors as a result of Kristi’s death. Ms. Sari told the court

she wants to better herself and utilize the available drug programs while in prison.

5 {¶13} The state outlined its position regarding aggravating sentencing factors,

and Kristi’s sister gave a victim impact statement on behalf of herself, Kristi’s mother,

and Kristi’s five-year-old daughter.

{¶14} Defense counsel, in response to the trial court’s inquiry, agreed he was

requesting that the court impose a total prison term of 9 years. He stated Glenbeigh, a

residential drug treatment facility, is willing and able to provide Ms. Sari with a place to

stay when she is released. The state recommended the maximum prison term of 11

years, stating, in part, that “a message must be sent in cases like this that bringing

drugs into our jail will not be tolerated here in Lake County.”

{¶15} The trial court stated it had reviewed the PSI, the victim impact statement,

the drug and alcohol evaluation, the psychological evaluation, his conference in

chambers with counsel and the probation department, and the statements of Ms. Sari

and her counsel.

{¶16} After a lengthy statement on the record regarding sentencing factors,

discussed further below, the trial court sentenced Ms. Sari to the maximum term of

imprisonment: three years on Count One and eight years mandatory on Amended

Count Two, to be served consecutive to each other, for a total term of eleven years.

The trial court also ordered Ms. Sari to pay restitution in the amount of $12,608.20,

jointly and severally with Michael and Christine, and a mandatory fine of $7,500.00.

The judgment of sentence was entered on September 28, 2016.

{¶17} Ms. Sari noticed a timely appeal and raises four assignments of error for

our review, all of which relate to the imposition of her sentence:

[1.] The trial court incorrectly analyzed the aggravating and mitigating factors set forth in R.C. 2929.12 and then imposed a sentence based on findings that were not supported by the record.

6 [2.] The trial court erred by imposing consecutive sentences when the court’s findings were not supported by the record.

[3.] The trial court failed to adequately ensure that its total sentence was proportionate to sentences being given to similarly situated offenders who have committed similar offenses, particularly the accomplices in this case.

[4.] The trial court erred in imposing a mandatory fine.

{¶18} R.C. 2953.08(G) sets forth the standard of review for all Ohio felony

sentencing appeals. It states, in pertinent part, that an “appellate court may increase,

reduce, or otherwise modify a sentence that is appealed under this section or may

vacate the sentence and remand the matter to the sentencing court for resentencing * *

* if it clearly and convincingly finds * * * (b) that the sentence is otherwise contrary to

law.” R.C. 2953.08(G)(2); see also State v. Marcum,

, 2016-Ohio-

1002, ¶10, and State v. Hettmansperger, 11th Dist. Ashtabula No. 2014-A-0006, 2014-

Ohio-4306, ¶14. Thus, an appellate court will not reverse a felony sentence unless it

clearly and convincingly finds that the record does not support the trial court’s findings.

State v. Venes, 8th Dist. Cuyahoga No. 98682,

.

Sentencing Factors

{¶19} Under her first assignment of error, appellant argues the trial court’s

findings under R.C. 2929.12 are not supported by the record, and thus her sentence is

contrary to law.

{¶20} A court imposing a felony sentence is required to consider the seriousness

and recidivism factors found in R.C. 2929.12 to ensure the sentence complies with the

overriding principles of felony sentencing provided in R.C. 2929.11. See R.C.

2929.12(A). The trial court, however, “is not required to ‘use specific language or make

specific findings on the record in order to evince the requisite consideration of the

7 applicable seriousness and recidivism factors (of R.C. 2929.12).’” State v. Webb, 11th

Dist. Lake No. 2003-L-078,

, ¶10, quoting State v. Arnett,

(2000); see also State v. McGinnis, 11th Dist. Lake No. 2015-L-096, 2016-

Ohio-1362, ¶8.

{¶21} In its judgment entry of sentence, the trial court stated it had considered

the record, oral statements, any victim impact statement, the pre-sentence report, and

the drug and alcohol evaluation submitted by the Lake County Adult Probation

Department of the Court of Common Pleas, “as well as the principles and purposes of

sentencing under R.C. 2929.11, and has balanced the seriousness and recidivism

factors under R.C. 2929.12.”

{¶22} R.C. 2929.12(B) sets forth factors the trial court must consider as

indicating the offender’s conduct is more serious than conduct normally constituting the

offense. Ms. Sari contends the trial court incorrectly analyzed two of these factors: (1)

that her relationship with the victims “facilitated” the offense and (2) that the offense was

committed as a part of an “organized criminal activity.” See R.C. 2929.12(B)(6)-(7).

{¶23} First, Ms. Sari argues her relationship with the victims did not “facilitate”

the offense. She asserts that if we were to find this factor “is triggered under these

circumstances, then virtually every distribution of drugs to a friend would invoke this

factor.” The state responds that the victims would never have received the drugs from

Ms. Sari had they not had a relationship with her and that Christine arranged for the

money order to pay for the drugs because of their relationship.

To facilitate means to make easier. The American Heritage Dictionary (2 Ed. 1985) 484. In order to have the relationship facilitate the offense, the defendant must have used his relationship with the victim to help commit the offense. In other words, the defendant must have used the relationship to allow him to commit

8 the offense in a manner which he could not have accomplished without the relationship.

State v. Manley, 3d Dist. Allen No. 1-11-04,

, citing State v.

McDade, 6th Dist. Ottawa Nos. OT-06-001, OT-06-004,

.

{¶24} Whether this factor was appropriately considered under the facts of this

case can be fairly argued either way. We conclude, however, that the record supports

the finding that Ms. Sari’s relationship with Christine made it easier for her to obtain the

heroin she then illegally conveyed into the jail and distributed to Christine. Ms. Sari may

not have been able to obtain the heroin without Christine arranging for it to be

purchased outside the jail. Even if we found this determination was made in error, it

would be harmless considering the other seriousness and recidivism factors supported

by the record.

{¶25} Next, Ms. Sari argues there was no “organized criminal activity” because

this was an isolated incident. Ms. Sari argues it “was not a situation where the

relationship between the actors was forged or even primarily existed as a means to

commit crimes.” The state responds that this finding is supported by the record

because Ms. Sari and her co-defendants engaged in a fairly elaborate scheme that

likely involved at least five individuals. In response to this argument, Ms. Sari replies: “If

the scheme that took place in this case was sophisticated enough to be considered

‘organized criminal activity’ – an aggravating circumstance under subsection (B), then

[Ms. Sari’s] limited role must also be taken into account in mitigation.”

{¶26} The mere fact that Ms. Sari had accomplices “is insufficient to establish

that [she] engaged in organized criminal activity.” State v. Nichols, 11th Dist. Lake No.

2005-L-017,

, citing State v. Roberson,

(11th Dist. 2001). Rather, to support a finding of organized criminal activity, the record

9 must demonstrate that Ms. Sari and her accomplices planned to engage in the crimes.

citing State v. Bradford, 11th Dist. Lake No. 2001-L-175,

, ¶28.

There is more than ample evidence in the record to support a finding that Ms. Sari,

Christine, Michael, and others planned to engage in these crimes; it was premeditated,

not spontaneous. Additionally, the record does not support the assertion that Ms. Sari

played merely a limited role in the crimes with which she was charged: she obtained the

drugs while on a medical furlough, inserted them into her vagina, physically conveyed

them into the jail, and handed them over to Christine for further distribution. This

argument is not well taken.

{¶27} R.C. 2929.12(C) sets forth the following factors the trial court must

consider as indicating the offender’s conduct is less serious than conduct normally

constituting the offense:

(1) The victim induced or facilitated the offense.

(2) In committing the offense, the offender acted under strong provocation.

(3) In committing the offense, the offender did not cause or expect to cause physical harm to any person or property.

(4) There are substantial grounds to mitigate the offender’s conduct, although the grounds are not enough to constitute a defense.

{¶28} Ms. Sari contends the trial court erred by not finding that one of the

victims, Christine, helped facilitate the offense. We agree with the state that it was not

error for the trial court to find this factor because the deceased victim, Kristi, did not help

facilitate the offense. Ms. Sari further contends that the trial court erred in failing to find

that she did not expect to cause physical harm to anyone. We agree with the state that

this was not error, because Ms. Sari did in fact cause physical harm to persons and

10 because the contention that she did not expect to cause physical harm is belied by the

act of providing someone with heroin, a drug that has recently caused the death of

countless individuals in this area. These arguments are not well taken.

{¶29} R.C. 2929.12(D) & (E) set forth factors the trial court must consider in

determining the likelihood of recidivism. The factors that indicate an offender is less

likely to commit future crimes include that the offender shows genuine remorse for the

offense. R.C. 2929.12(E). The trial court noted that Ms. Sari is genuinely remorseful,

and Ms. Sari does not raise an argument as it pertains to factors indicating recidivism is

less likely.

{¶30} The factors that indicate the offender is more likely to commit future

crimes include:

(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing; was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code; was under post-release control pursuant to section 2967.28 or any other provision of the Revised Code for an earlier offense or had been unfavorably terminated from post- release control for a prior offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised Code; was under transitional control in connection with a prior offense; or had absconded from the offender’s approved community placement resulting in the offender’s removal from the transitional control program under section 2967.26 of the Revised Code.

(2) The offender previously was adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has a history of criminal convictions.

(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has not responded favorably to sanctions previously imposed for criminal convictions.

11 (4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.

(5) The offender shows no genuine remorse for the offense.

R.C. 2929.12(D).

{¶31} The trial court found four of these factors were present: (1) the crime was

committed while under a municipal court sentence, for which Ms. Sari had been

furloughed; (2) Ms. Sari has a criminal and juvenile history of offenses and

adjudications; (3) Ms. Sari has a long-term addiction to drugs; and (4) Ms. Sari has

repeatedly failed to respond favorably to previously imposed sentences. Ms. Sari

contends the trial court’s analysis of these factors was incorrect.

{¶32} First, she asserts the trial court afforded her criminal and juvenile

delinquency history too much weight because the offenses were all misdemeanor

crimes, she was serving her first term of incarceration, and the PSI stated her criminal

history indicated a low risk of recidivism. A “trial court is not required to give any

particular weight or emphasis to a given set of circumstances” when considering the

statutory factors. State v. Delmanzo, 11th Dist. Lake No. 2007-L-218,

. This argument is not well taken.

{¶33} Next, Ms. Sari contends her drug abuse history should not be considered

as a risk for recidivism because she has acknowledged her pattern of abuse and has

not refused treatment. Ms. Sari further contends her failure to respond to previously

imposed sanctions should not be considered because it is a consequence of her cycle

of drug abuse and recovery, not due to stubbornness or refusal to accept help.

Although Ms. Sari has acknowledged her pattern of abuse, there is evidence in the

record—namely, her own statements to the trial court during the plea hearing and to the

12 probation department during the PSI—that she has failed on numerous occasions to

complete treatment for her addiction. These arguments are not well taken.

{¶34} Finally, Ms. Sari contends that she committed the instant offenses while

serving a misdemeanor sentence; the aggravating factor, however, only applies when a

defendant is serving a felony sentence. The state concedes the presence of this factor

was found by the trial court in error. Notwithstanding, we hold the error is harmless and

does not warrant reversal in light of the presence of the other seriousness and

recidivism factors. With this single exception, we conclude the trial court’s findings

under R.C. 2929.12 are supported by the record and are not contrary to law.

{¶35} Ms. Sari’s first assignment of error is without merit.

Consecutive Sentences

{¶36} Under her second assignment of error, Ms. Sari argues the trial court’s

findings in support of the imposition of consecutive sentences are not supported by the

record.

{¶37} R.C. 2929.14(C)(4) provides that a trial court may require an offender to

serve consecutive prison terms only if it 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 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

13 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.

{¶38} Although a trial court must make the statutory findings to support its

decision to impose consecutive sentences, it has no obligation to set forth its reasons to

support its findings as long as they are discernible in the record. State v. Bonnell,

,

; State v. Jenkins, 8th Dist. Cuyahoga No.

101899,

, ¶9. “If the court has properly made the required findings in

order to impose consecutive sentences, we must affirm those sentences unless we

‘clearly and convincingly’ find ‘[t]hat the record does not support the court’s findings[.]’”

, quoting R.C. 2953.08(G)(2).

{¶39} The trial court satisfied the requisite R.C. 2929.14(C)(4) findings in this

case both at the sentencing hearing and in its entry. It stated in its judgment entry:

Pursuant to R.C. 2929.14(C)(4) and R.C. 2929.19(B)(2)(b), the Court finds for the reasons stated on the record that consecutive sentences are necessary to protect the public from future crime or to punish the Defendant and are not disproportionate to the Defendant’s conduct and the danger the Defendant poses to the public, and that the Defendant committed one or more of the multiple offenses while serving a municipal court jail sentence, and/or the Defendant’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the Defendant.

On the record, the trial court stated:

Consecutive sentences are necessary to protect the public and punish this offender. Consecutive sentences would not be disproportionate to the defendant’s conduct and the danger she poses. The crimes here were committed while under a jail sentence. The harm was so great or unusual that a single prison term would not adequately reflect the seriousness, and the defendant’s criminal history shows that consecutive terms are needed to protect the public from future crime.

14 {¶40} We find that the imposition of consecutive sentences is a decision

supported by the record. Although she is not a drug dealer who preys on the addictions

of others for profit, Ms. Sari does pose a danger to society in that she was willing to

bring a dangerous drug into a government facility charged with keeping many other

members of society safe. Although she did not specifically intend Kristi’s death or

Christine’s overdose, these were natural and foreseeable consequences of Ms. Sari’s

decision to convey heroin into the facility. The trial court also noted the need for general

and specific deterrence of this type of crime.

{¶41} Ms. Sari argues consecutive sentences are disproportionate to the

seriousness of her conduct because the sentences imposed on her co-defendants were

not as long. We address this specific argument under her third assignment of error.

{¶42} Ms. Sari states consecutive sentences are not appropriately based on

subsection (a) because she was not under a sanction imposed for a felony offense at

the time she committed the instant offense. We agree the record does not support this

particular finding by the trial court, as Ms. Sari was under a sanction imposed for a

misdemeanor offense. We find Ms. Sari’s argument as to this factor is well taken.

Notwithstanding, the error is harmless and does not warrant reversal in light of the trial

court’s other findings.

{¶43} Ms. Sari states the finding under subsection (b) may be supported by the

record because the loss of life is a great loss under any circumstance, but that

consecutive sentences should not be based solely on this fact because she did not

intend to cause Kristi’s death. We cannot consider this factor, however, as the trial

court did not include it in its judgment entry of sentence. See State v. Eichele, 11th

Dist. Geauga No. 2015-G-0050,

, citing

at ¶37

15 (“While no talismanic words are required, the findings must be made both at the

sentencing hearing, and in the judgment entry of sentence.”). Regardless, the trial court

did not order consecutive sentences based solely on this fact; it also found subsection

(c) applied to Ms. Sari’s situation.

{¶44} Regarding subsection (c), Ms. Sari states consecutive sentences were not

appropriate because the probation department determined “criminal history” was a low

domain in Ms. Sari’s risk of recidivism analysis. This determination does not belie the

fact that the record supports the trial court’s finding that Ms. Sari’s criminal history

shows consecutive terms are needed to protect the public from future crime.

Regardless of the misdemeanor level of her previous offenses, Ms. Sari does have a

criminal and juvenile delinquent history. And although these offenses were non-violent,

not all of them were victim-less crimes.

{¶45} Accordingly, the trial court made the requisite findings warranting the

imposition of a consecutive sentence in this case, and its findings are supported by the

record.

{¶46} Ms. Sari also argues the trial court failed to begin its analysis of the

various sentencing factors by considering whether it was sufficient to impose concurrent

sentences as opposed to consecutive sentences. She states in her appellate brief that

“the record must confirm that the trial court first considered imposing concurrent

sentences and then decided to impose consecutive sentences based on the statutorily

mandated criteria.” She draws support for this argument from State v. Edmonson,

(1999).

{¶47} In Edmonson, the Ohio Supreme Court found the trial court erred in

imposing more than the minimum sentences because it did not specify either of the

16 statutory factors found in former R.C. 2929.14(B) as supporting its deviation from the

minimum sentence: “With this record, there is no confirmation that the court first

considered imposing the minimum three-year sentence and then decided to depart from

the statutorily mandated minimum based on one or both of the permitted reasons.”

. Contrary to Ms. Sari’s position, this statement did not mandate that a trial court

must confirm on the record that it first considered imposing the minimum sentence

under former R.C. 2929.14(B). It is simply an explanation as to how that particular trial

court’s imposition of sentence was not supported by the scant record and lack of

findings in that case. It also does not apply to the trial court making statutory findings

under R.C. 2929.14(C)(4) before imposing consecutive sentences. Making the statutory

findings under R.C. 2929.14(C)(4) implies that the trial court is aware of its burden to

overcome the presumption of concurrent sentences—it is not necessary to explicitly

state on the record that it is taking on that burden. Such a requirement would be as

pointless as requiring a trial court to say, “I must weigh prejudice versus probative”

before ruling on an evidentiary motion during trial.

{¶48} Even if such a requirement existed, the trial court would have satisfied it

here. Prior to its application of the sentencing factors and imposition of sentence, the

trial court stated the following at Ms. Sari’s sentencing hearing:

The Court has also considered the overriding purposes of felony sentencing pursuant to Revised Code 2929.11, which are to protect the public from future crime by this offender and others similarly situated and to punish this offender using the minimum sanctions that the Court determines accomplish the purposes, without imposing an unnecessary burden on state or local governmental resources. I have considered the need for incapacitation, deterrents, rehabilitation and restitution. [Emphasis added.]

{¶49} This argument is not well taken.

{¶50} Ms. Sari’s second assignment of error is without merit.

17 Proportionality

{¶51} Under her third assignment of error, Ms. Sari contends the trial court

imposed a sentence disproportionate to sentences being imposed for similarly situated

offenders committing similar offenses, particularly her co-defendants in this case. She

asserts this assignment of error has merit because the trial court erred in its

consideration of the statutory purposes and factors of felony sentencing. The state

responds that the trial court is not required to note any reason why Ms. Sari should be

punished more than her co-defendants and that Ms. Sari was the one who bore

culpability for physically smuggling the drugs into the jail.

(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.

R.C. 2929.11.

{¶52} “[T]he goal of felony sentencing pursuant to R.C. 2929.11(B) is to achieve

‘consistency’ not ‘uniformity.’” State v. Palicka, 8th Dist. Cuyahoga No. 93766, 2010-

Ohio-3726, *2, citing State v. Klepatzki, 8th Dist. Cuyahoga No. 81676, 2003-Ohio-

1529, ¶32. “[A] consistent sentence is not derived from a case-by-case comparison[.]”

State v. Swiderski, 11th Dist. Lake No. 2004-L-112,

(emphasis

18 added). To the contrary, it is well established that consistency in sentencing is

accomplished by the trial court’s application of the statutory sentencing guidelines to

each individual case. See, e.g., State v. Latimer, 11th Dist. Portage No. 2011-P-0089,

, ¶20, citing

. Thus, in order to show a

sentence is inconsistent with sentences imposed on other offenders, a defendant must

show the trial court failed to properly consider the statutory purposes and factors of

felony sentencing.

See also State v. Simpson, 11th Dist. Lake No. 2016-L-014,

.

{¶53} We have already held, with one harmless error exception, that the trial

court properly considered the R.C. 2929.12 sentencing factors. The trial court also

stated it considered the R.C. 2929.11 purposes and principles of felony sentencing in

finding it necessary to incarcerate Ms. Sari, and that Ms. Sari is not amenable to an

available community control sanction. Finally, the trial court made the necessary

findings under R.C. 2929.14(C)(4) in support of its decision to impose consecutive

sentences.

{¶54} Ms. Sari requested the trial court sentence her to a term of nine years,

closer to the seven years Christine received for her role in the crime, instead of the

eleven years recommended by the state. We acknowledge the pervasive argument

throughout Ms. Sari’s appeal that her sentence is simply not just; that she is a young,

non-violent offender who needs extensive help for her drug abuse issues.

Nevertheless, considering the serious consequences of the instant offenses and her

level of culpability in physically transporting the contraband into the jail, we do not find

Ms. Sari’s eleven-year prison sentence is disproportionate or inconsistent with other

offenders sentenced under the same statutory guidelines, including her co-defendants.

19 {¶55} Ms. Sari’s third assignment of error is without merit.

Mandatory Fine

{¶56} Under her final assignment of error, Ms. Sari argues she should not have

been subjected to a mandatory fine of $7,500.00 because she does not have the

present ability to pay, as required by R.C. 2929.18.

For a first, second, or third degree felony violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense pursuant to division (A)(3) of this section.

R.C. 2929.18(B)(1). For a felony of the second degree, the maximum statutory fine

amount is $15,000.00. R.C. 2929.18(B)(3)(b). Therefore, the mandatory portion of the

fine for a second-degree felony is $7,500.00. “If an offender alleges in an affidavit filed

with the court prior to sentencing that the offender is indigent and unable to pay the

mandatory fine and if the court determines the offender is an indigent person and is

unable to pay the mandatory fine described in this division, the court shall not impose

the mandatory fine upon the offender.” R.C. 2929.18(B)(1).

{¶57} “Therefore, the decision to impose a fine is not a discretionary one but,

rather, a mandatory requirement for the trial court where the defendant has not filed an

affidavit of indigency with the court prior to sentencing.” State v. Grissom, 11th Dist.

Lake No. 2001-L-107,

, ¶30. “[T]he language in R.C. 2929.18(B)(1) is

‘clear and unambiguous in requiring that an affidavit of indigency must be “filed” with the

court prior to sentencing.’ Moreover, ‘the fact that the affidavit was not properly filed

prior to sentencing is, standing alone, a sufficient reason to find that the trial court

committed no error by imposing the statutory fine.’” Id. at ¶32, quoting State v. Gipson,

(1998).

20 {¶58} Ms. Sari argues that her PSI indicated she was indigent. That indication,

however, is solely based on Ms. Sari self-reporting a lack of income and assets; it is not

a finding made by the probation department or the trial court based on an affidavit or

other evidence. More importantly, Ms. Sari did not file an affidavit of indigency prior to

sentencing nor did she offer any evidence of indigency in her sentencing memorandum.

Therefore, Ms. Sari never invoked the statutory procedure established for waiving the

mandatory fine.

{¶59} Ms. Sari’s fourth assignment of error is without merit.

{¶60} We do not clearly and convincingly find that the record fails to support the

trial court’s findings underlying its imposition of sentence. The judgment of the Lake

County Court of Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.

21