[Cite as State v. Rose,

.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 18CA005 ADAM M. ROSE : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County Court of Common Pleas, Case No. 17CR080

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 6, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant SEAN WARNER DAVID M. HUNTER Prosecuting Attorney 244 West Main Street Holmes County Prosecutor’s Office Loudonville, OH 44842 164 East Jackson Street Millersburg, OH 44654 [Cite as State v. Rose,

.]

Gwin, P.J.

{¶1} Appellant Adam M. Rose [“Rose”] appeals his conviction and sentence after

a negotiated guilty plea in the Holmes County Court of Common Pleas.

Facts and Procedural History

{¶2} Rose was charged by Grand Jury Indictment on October 10, 2017 with,

three counts of Domestic Violence in violation of R.C. 2919.25(A), two counts of

Aggravated Menacing in violation of R.C. 2903.21(A), two counts of Felonious Assault in

violation of R.C. 2903.11(A)(1), two counts of Abduction in violation of R.C. 2905.02(A)(2),

two counts of Petty Theft in violation of R.C. 2913.02(A)(1), Prohibitions concerning

companion animals in violation of R.C. 959.131 and Kidnapping in violation of R.C.

2905.01(A)(3).

{¶3} Based upon a plea arrangement Rose pled guilty to two counts of Domestic

Violence - misdemeanors of the first degree, one count of Aggravated Menacing - a

misdemeanor of the first degree, one count of attempted Aggravated Assault - a felony of

the fifth degree, one count of Abduction - a felony of the third degree, one count of Petty

Theft - a misdemeanor of the first degree and one count of Prohibitions Concerning

Companion Animals - a felony of the fifth degree.

{¶4} On May 10, 2018, Rose was sentenced on his guilty plea to a term of

incarceration of thirty-six months on the Abduction charge, twelve months each on the

Prohibitions Concerning Companion Animals and Attempted Aggravated Assault to be

served consecutively for a total period of incarceration of sixty (60) months. The trial court

further sentenced Rose to jail terms of six months each on the Domestic Violence Holmes County, Case No. 18CA005 3

charges, Aggravated Menacing charge and Petty Theft charge to be served concurrently

with each other and the sixty-month prison sentence imposed for the felony offenses.

Assignments of Error

{¶5} Rose raises two assignments of error,

{¶6} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE

MAXIMUM SENTENCE FOR HIS FELONY CONVICTION.

{¶7} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES FOR HIS FELONY CONVICTIONS.

I. & II.

STANDARD OF APPELLATE REVIEW.

{¶8} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum,

, 2016–Ohio–1002,

, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004,

. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell,

, 2014–Ohio–3177,

, ¶28.

{¶9} Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the

record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law. Holmes County, Case No. 18CA005 4

{¶10} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford,

,

(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb,

(1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

.

ISSUES FOR APPEAL.

a).Whether the trial court properly imposed the maximum sentence in Rose’s case.

b). Whether the trial court properly imposed consecutive sentences in Rose’s case.

R.C. 2929.13(B).

{¶11} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.

Rose plead guilty to two felonies of the fifth degree. In relevant part the statute provides,

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying assault

offense, the court shall sentence the offender to a community control

sanction or combination of community control sanctions if all of the following

apply:

(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense. Holmes County, Case No. 18CA005 5

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department,

within the forty-five-day period specified in that division, provided the court

with the names of, contact information for, and program details of one or

more community control sanctions that are available for persons sentenced

by the court.

Emphasis added. R.C. 2929.13(B)(1)(b) further provides,

(b) The court has discretion to impose a prison term upon an offender

who is convicted of or pleads guilty to a felony of the fourth or fifth degree

that is not an offense of violence or that is a qualifying assault offense if any

of the following apply:

(i) The offender committed the offense while having a firearm on or

about the offender’s person or under the offender’s control.

(ii) If the offense is a qualifying assault offense, the offender caused

serious physical harm to another person while committing the offense, and,

if the offense is not a qualifying assault offense, the offender caused

physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by

the court.

(iv) The court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, and the department, Holmes County, Case No. 18CA005 6

within the forty-five-day period specified in that division, did not provide the

court with the name of, contact information for, and program details of any

community control sanction that is available for persons sentenced by the

court.

(v) The offense is a sex offense that is a fourth or fifth degree felony

violation of any provision of Chapter 2907. of the Revised Code.

(vi) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person with a deadly weapon.

(vii) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person, and the offender

previously was convicted of an offense that caused physical harm to a

person.

(viii) The offender held a public office or position of trust, and the

offense related to that office or position; the offender’s position obliged the

offender to prevent the offense or to bring those committing it to justice; or

the offender’s professional reputation or position facilitated the offense or

was likely to influence the future conduct of others.

(ix) The offender committed the offense for hire or as part of an

organized criminal activity.

(x) The offender at the time of the offense was serving, or the

offender previously had served, a prison term. Holmes County, Case No. 18CA005 7

(xi) The offender committed the offense while under a community

control sanction, while on probation, or while released from custody on a

bond or personal recognizance.

Emphasis added.

{¶12} In the case at bar, Rose plead guilty to Abduction, a felony of the third

degree. Rose was previously convicted of Robbery and Felonious Assault. (Sent. T. at

4). Rose was on probation at the time of committing these offenses. (Sent. T. at 16).

Accordingly, the court had discretion to impose a prison term for the fifth degree felonies.

R.C. 2929.13(C).

{¶13} R.C. 2929.13(C) applies to one convicted of a third degree felony. Rose

pled guilty to one felony of the third degree.

{¶14} According to R.C. 2929.13(C), when determining whether a third-degree

felony warrants a prison sentence, the trial court is to consider the seriousness and

recidivism factors contained in R.C. 2929.12. As well, the trial court is to consider the

purposes and principles of sentencing outlined in R.C. 2929.11. The purposes and

principles of felony sentencing are to protect the public from future crime by the offender

and others and to punish the offender. R.C. 2929.11. In order to achieve these purposes

and principles, the trial court must 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. R.C. 2929.11(A).

Additionally, the sentence must be commensurate with, and not demeaning to, the

seriousness of the offender’s conduct and its impact on the victims. R.C. 2929.11(B). Holmes County, Case No. 18CA005 8

R.C. 2929.11 and R.C. 2929.12.

{¶15} The Marcum court further noted,

We note that some sentences do not require the findings that R.C.

2953.08(G) specifically addresses. Nevertheless, it is fully consistent for

appellate courts to review those sentences that are imposed solely after

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard

that is equally deferential to the sentencing court. That is, an appellate court

may vacate or modify any sentence that is not clearly and convincingly

contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.

146 Ohio St.3d at ¶23, 2016–Ohio–1002,

(emphasis added).

{¶16} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes.

Further, the sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

{¶17} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a

non-exhaustive list of factors a trial court must consider when determining the Holmes County, Case No. 18CA005 9

seriousness of the offense and the likelihood that the offender will commit future offenses.

{¶18} In State v. Kalish,

,

,

, the

court discussed the effect of State v. Foster,

,

,

decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See

also, State v. Payne,

,

,

; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41,

.

{¶19} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,

see also State v. Mathis,

,

,

; State v.

.

{¶20} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025,

; State v. Delong,

4th Dist. No. 05CA815,

. Therefore, post-Foster, trial courts are

still required to consider the general guidance factors in their sentencing decisions.

{¶21} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism Holmes County, Case No. 18CA005 10

or even discussed them. State v. Polick,

(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252,

(nothing in R.C. 2929.12 or the

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its

findings), citing State v. Cyrus,

,

(1992); State v.

Hughes, 6th Dist. No. WD-05-024,

, ¶10 (trial court was not required to

address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46,

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).

{¶22} In the case at bar, the trial court heard the victim, the victim’s stepfather, the

victim’s sister and the victim’s mother. (Sent. T. at 9-12.) The court heard from Rose’s

attorney, the state’s attorney and Rose. The trial court reviewed the presentence

investigation report, the investigation reports, the victim impact statements and the

appellant’s sentencing memorandum. (Sent. T. at 16).

{¶23} In the case at bar, the record supports that the harm caused the victim was

“serious physical harm” [2929.12(B)(2)]. (Sent. T. at 16). The offenses were also more

serious because Rose used his relationship with the victim to facilitate the offenses.

[2929.12(B)(6)]. (Sent. T. at 16). None of the factors set forth in 2929.12(C) are

applicable to render the offenses “less serious.” (Sent. T. at 16). Rose was on probation

at the time he committed the offenses R.C. 2929.12(C)(1) (Sent. T. at 16). Rose had not

been rehabilitated after his previous convictions. R.C. 2929.12(C)(3) (Sent. T. at 16).

{¶24} Accordingly, the trial court considered the purposes and principles of Holmes County, Case No. 18CA005 11

sentencing [R.C. 2929.11] as well as the factors that the court must consider when

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation

to state reasons to support its findings. Nor is it required to give a talismanic incantation

of the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.

R.C. 2929.13(D).

{¶25} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or

second degree, for a felony drug offense that is a violation of any provision of Chapter

2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison

term is specified as being applicable, and for a violation of division (A)(4) or (B) of section

2907.05 of the Revised Code for which a presumption in favor of a prison term is specified

as being applicable. Rose was not convicted of a felony of the first or second degree.

Accordingly, R.C. 2929.13(D) does not apply to Rose’s case.

R.C. 2929.14 (B)(2)(e).

{¶26} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Rose was not given an

additional prison sentence.

R.C. 2929.14 (C)(4) Consecutive Sentences.

{¶27} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences.

{¶28} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this

presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)

(4). State v. Bonnell,

,

,

. This Holmes County, Case No. 18CA005 12

statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st

Dist. Hamilton Nos. C–110828 and C–110829,

,

, ¶ 15.

R.C. 2929.14(C)(4) provides,

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. Holmes County, Case No. 18CA005 13

{¶29} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while under post release control for a prior offense; (b) at least two of the multiple offenses

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

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

offenses committed as part of any of the courses of conduct would adequately reflect the

seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018,

.

{¶30} In State v. Bonnell,

, 2014–Ohio–3177,

,

syllabus, the Supreme Court of Ohio stated that:

In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the

sentencing hearing and incorporate its findings into its sentencing entry, but

it has no obligation to state reasons to support its findings.

{¶31} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Bonnell, ¶29. “[A]s long as the reviewing court

can discern that the trial court engaged in the correct analysis and can determine that the Holmes County, Case No. 18CA005 14

record contains evidence to support the findings, consecutive sentences should be

upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C.

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing

entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the

statutory findings in the sentencing entry after properly making those findings at the

sentencing hearing does not render the sentence contrary to law; rather, such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what

actually occurred in open court. Bonnell, ¶30.

{¶32} In this case, the record does support a conclusion that the trial court made

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences.

R.C. 2929.14(C)(4): [T]he 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.

{¶33} The trial court considered this factor. Sent. T. at 18.

R.C. 2929.14(C)(4)(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.

{¶34} This provision does apply to Rose’s case. Sent. T. at 16; 18. Holmes County, Case No. 18CA005 15

R.C. 2929.14(C)(4)(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.

{¶35} The trial court considered this factor. Sent. T. at 18.

R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶36} The trial court made a specific finding concerning this factor.

R.C. 2929.20.

{¶37} R.C. 2929.20 (I) is inapplicable, as Rose’s was not applying to the court for

judicial release.

{¶38} In the case at bar, the plea was in exchange for the state dismissing or

reducing several felony charges.

{¶39} Given that the trial court is not obligated to refer to every factor listed in R.C.

2929.12 as part of its sentencing analysis, “the defendant has the burden to affirmatively

show that the court did not consider the applicable sentencing criteria or that the sentence

imposed is ‘strikingly inconsistent’ with the applicable sentencing factors.” State v. Hull,

11th Dist. Lake No. 2016-L-035, 2017-Ohio- 157, ¶8. Rose has failed in this burden.

{¶40} Accordingly, the trial court considered the purposes and principles of

sentencing [R.C. 2929.11] as well as the factors that the court must consider when

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation Holmes County, Case No. 18CA005 16

to state reasons to support its findings. Nor is it required to give a talismanic incantation

of the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.

{¶41} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. We also find that the record in the case at bar supports the

trial court’s findings under R.C. 2929.14(C)(4). Furthermore, the record reflects that the

trial court considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code

and advised Rose regarding post-release control. While Rose may disagree with the

weight given to these factors by the trial judge, Rose’s sentence was within the applicable

statutory range and therefore, we have no basis for concluding that it is contrary to law. Holmes County, Case No. 18CA005 17

{¶42} Rose has failed to clearly and convincingly show that the trial court failed to

consider the principles of felony sentencing, or that the aggregate sentence is otherwise

contrary to law.

{¶43} Roses’ First and Second Assignments of Error are overruled.

{¶44} The judgment of the Holmes County Court of Common Pleas is affirmed.

By Gwin, P.J,

Delaney, J., and

Wise, Earle, J., concur