[Cite as State v. Hiles,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-20-21

v.

TODD P. HILES, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2019-CR-0232

Judgment Affirmed

Date of Decision: May 10, 2021

APPEARANCES:

Alison Boggs for Appellant

Raymond Kelly Hamilton for Appellee Case No. 14-20-21

MILLER, J.

{¶1} Defendant-appellant, Todd P. Hiles, appeals the August 20, 2020

judgment of sentence of the Union County Court of Common Pleas. For the reasons

that follow, we affirm.

I. Facts and Procedural History

{¶2} On September 8, 2019, officers from the Marysville Division of Police

responded to a call of an unresponsive female at a Super 8 Motel located in

Marysville, Ohio. When the officers arrived, they found 26-year-old Samantha

Evans deceased in Hiles’s hotel room. It was later determined that Evans had died

of a drug overdose. During the ensuing investigation, Hiles provided investigators

with untrue, misleading, and conflicting information. Despite Hiles’s lack of

candor, the investigation revealed that Hiles had provided Evans with the drugs that

ultimately resulted in her death. Investigators also discovered Hiles had deleted text

messages pertinent to the investigation of Evans’s death and that he had removed

drug paraphernalia from the hotel room and disposed of it.

{¶3} On October 10, 2019, the Union County Grand Jury indicted Hiles on

three counts in case number 2019-CR-0232: Counts One and Two of tampering

with evidence in violation of R.C. 2921.12(A)(1), third-degree felonies, and Count

Three of obstructing justice in violation of R.C. 2921.32(A)(5), a fifth-degree

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felony. On October 18, 2019, Hiles appeared for arraignment and pleaded not guilty

to the counts of the indictment.

{¶4} On November 22, 2019, the Union County Grand Jury indicted Hiles

on five additional charges in case number 2019-CR-0264: Count One of

involuntary manslaughter in violation of R.C. 2903.04(A), a first-degree felony;

Count Two of corrupting another with drugs in violation of R.C. 2925.02(A)(3), a

second-degree felony; Count Three of trafficking in heroin in violation of R.C.

2925.03(A)(1), a fifth-degree felony; Count Four of trafficking in a fentanyl-related

compound in violation of R.C. 2925.03(A)(1), a fifth-degree felony; and Count Five

of trafficking in cocaine in violation of R.C. 2925.03(A)(1), a fifth-degree felony.

Hiles initially pleaded not guilty to these charges.

{¶5} On November 27, 2019, the State filed a motion to consolidate case

number 2019-CR-0264 with case number 2019-CR-0232. On December 3, 2019,

the trial court granted the State’s motion. Counts One through Five of the

indictment in case number 2019-CR-0264 were renumbered as Counts Four through

Eight, respectively, and the matter proceeded under case number 2019-CR-0232.

{¶6} A change of plea hearing was held on June 29, 2020, at which time

Hiles pleaded guilty to the charges of obstructing justice, involuntary manslaughter,

and trafficking in a fentanyl-related compound. In exchange for Hiles’s guilty pleas,

the State agreed to request dismissal of all remaining charges. The trial court

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accepted Hiles’s pleas and entered findings of guilty to the three charges.

Furthermore, the trial court dismissed the remaining charges pursuant to the State’s

request. The matter was continued for the preparation of a pre-sentence

investigation report (“PSI”).

{¶7} The sentencing hearing was held on August 20, 2020. The trial court

determined the involuntary manslaughter charge and the trafficking in a fentanyl-

related compound charge merged for purposes of sentencing. The State elected to

have the trial court sentence Hiles on the involuntary manslaughter conviction. The

trial court sentenced Hiles to a definite term of 12 months in prison on the

obstructing justice charge and an indefinite term of 8-12 years in prison on the

involuntary manslaughter charge. The trial court ordered the sentences to be served

consecutively for an aggregate term of 9-13 years in prison. The trial court filed its

judgment entry of sentence on August 20, 2020.

II. Issues Raised on Appeal

{¶8} On September 18, 2020, Hiles timely filed a notice of appeal asserting

one assignment of error:

The trial court failed to properly consider and weigh the sentencing factors found in Ohio Revised Code Section 2929.12, creating a sentence that is not supported by the record and contrary to law.

{¶9} In his assignment of error, Hiles argues the trial court erred by

sentencing him to an aggregate term of 9-13 years in prison. Although Hiles raises

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only one assignment of error, he makes several distinct arguments in support

thereof. First, Hiles argues his indefinite sentence of 8-12 years in prison for

involuntary manslaughter is contrary to law because the trial court did not have the

power to sentence him to an indefinite prison term for that offense. He maintains

that under the Reagan Tokes Law, an indefinite sentence is authorized only when a

felony is a “qualifying felony of the first or second degree,” and involuntary

manslaughter is not a qualifying first-degree felony. Furthermore, Hiles contends

that even if the trial court did not err by sentencing him to 8-12 years in prison for

involuntary manslaughter, the trial court did err by running that sentence

consecutively to his 12-month sentence for obstructing justice. He appears to claim

that in electing to run the two sentences consecutively, the trial court failed to give

proper consideration to the sentencing criteria of R.C. 2929.11 and 2929.12. Hiles

also argues the trial court’s R.C. 2929.14(C)(4) consecutive-sentence findings are

unsupported by the record.1

III. Discussion

A. Standard of Review for Felony Sentences

{¶10} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

1 As yet another alternative ground for reversing his sentence, Hiles argues the length of his sentence is “disproportionate to the offense and is not consistent to the sentencing of similar defendants in Union County.” However, Hiles failed to raise this issue before the trial court, and as a result, he has waived this argument on appeal. See State v. Boroff, 3d Dist. Putnam No. 12-20-02,

.

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support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum,

,

. Clear and convincing evidence is that “‘which will produce in the mind of the

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

at ¶ 22, quoting Cross v. Ledford,

(1954), paragraph three of the

syllabus.

B. The Reagan Tokes Law and Qualifying First- or Second-Degree Felonies

{¶11} The Reagan Tokes Law “‘significantly altered the sentencing structure

for many of Ohio’s most serious felonies[.]’” State v. Polley, 6th Dist. Ottawa No.

OT-19-039,

, quoting The Ohio Criminal Sentencing

Commission, SB 201-The Reagan Tokes Law Indefinite Sentencing Quick Reference

Guide, July 2019. Under the Reagan Tokes Law, a court sentencing an offender to

prison for certain first- or second-degree felonies must impose an indefinite, non-

life prison term comprising a stated minimum term and a maximum term. R.C.

2929.14(A)(1)(a), (A)(2)(a); R.C. 2929.144. The stated minimum term is selected

from a range of prison terms set forth in R.C. 2929.14(A), which varies depending

on whether the offense is a first- or second-degree felony. The maximum prison

term for a “qualifying felony of the first or second degree” is determined from

formulas set forth in R.C. 2929.144. When an offender is sentenced to a non-life

felony indefinite prison term, there is a presumption of release upon expiration of

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the offender’s minimum prison term. R.C. 2967.271(B). However, “[b]ased on [the

offender’s] conduct while incarcerated, the institution may rebut the presumption in

favor of the minimum prison term and extend an offender’s incarceration up to the

maximum prison term.” State v. Velliquette, 6th Dist. Lucas No. L-19-1232, 2020-

Ohio-4855, ¶ 28.

{¶12} The specific issue in this case is whether first-degree felony

involuntary manslaughter is a qualifying felony of the first degree as that term is

defined by the Reagan Tokes Law. Hiles maintains that first-degree felony

involuntary manslaughter is not a qualifying felony of the first degree and that,

consequently, the indefinite sentencing provisions of the Reagan Tokes Law do not

apply. Hiles argues that because the indefinite sentencing provisions do not apply

to his conviction for first-degree felony involuntary manslaughter, his 8-12 year

prison sentence for that offense is contrary to law.

{¶13} As the sole basis for his contention, Hiles cites to R.C. 2901.011,

which he claims lists the felonies that are qualifying felonies of the first or second

degree. R.C. 2901.011 states in its entirety:

The amendments to sections 109.42, 121.22, 149.43, 2903.06, 2903.08, 2903.11, 2903.12, 2905.01, 2905.32, 2907.02, 2907.03, 2907.05, 2907.07, 2919.22, 2919.25, 2921.321, 2921.36, 2923.132, 2925.01, 2925.02, 2925.03, 2925.04, 2925.041, 2925.11, 2929.01, 2929.14, 2929.142, 2929.15, 2929.19, 2929.191, 2929.20, 2929.61, 2930.16, 2943.032, 2953.08, 2967.01, 2967.021, 2967.03, 2967.13, 2967.19, 2967.191, 2967.193, 2967.26, 2967.28, 2971.03, 3719.99, 5120.021, 5120.53, 5120.66, and 5120.80 and the enactment of

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sections 2901.011, 2929.144, 2967.271, and 5120.038 of the Revised Code by S.B. 201 of the 132nd general assembly constitute the Reagan Tokes Law.

(Emphasis added). Hiles claims that by omitting R.C. 2903.04, the statute defining

the offense of involuntary manslaughter, from the list of amended statutes, the Ohio

Legislature indicated that first-degree felony involuntary manslaughter is not a

qualifying first-degree felony to which the indefinite sentencing provisions apply.

{¶14} However, in making this argument, Hiles overlooks the fact that in

R.C. 2901.011, the Ohio Legislature defined the Reagan Tokes Law as constituting

all of the amended statutes listed in R.C. 2901.011 and four newly-enacted statutes,

one of which is R.C. 2929.144. Unlike R.C. 2901.011, R.C. 2929.144 contains an

explicit definition of the term “qualifying felony of the first or second degree.” In

fact, other than R.C. 2929.144, there appears to be no statute in the Ohio Revised

Code that uses, much less defines, the term. As defined in R.C. 2929.144, a

“‘qualifying felony of the first or second degree’ means a felony of the first or

second degree committed on or after the effective date of this section.” R.C.

2929.144(A). The effective date of R.C. 2929.144, and of the Reagan Tokes Law

generally, is March 22, 2019. Thus, per the sole express statutory definition, all

first- or second-degree felonies committed on or after March 22, 2019, are

qualifying felonies to which the Reagan Tokes Law applies.2

2 Another qualification to this definition is that qualifying felonies of the first or second degree are felonies that are not subject to a sentence of life imprisonment. See R.C. 2929.14(A).

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{¶15} R.C. 2929.14, which is one of the many statutes amended by the

Reagan Tokes Law, reinforces R.C. 2929.144(A)’s definition of a “qualifying

felony of the first or second degree.” Specifically, R.C. 2929.14(A)(1)(a), the

division under which Hiles was sentenced, states:

For a felony of the first degree committed on or after the effective date of this amendment, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for the offense, the specific language of that section shall control in determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be considered for purposes of the Revised Code as if it had been imposed under this division.

(Emphasis added.)

{¶16} Based on the foregoing, we find Hiles’s reliance on R.C. 2901.011 to

be misplaced, as Hiles fails to consider the other statutes that make up the Reagan

Tokes Law. R.C. 2901.011 simply delineates what amended and newly-enacted

statutes comprise the Reagan Tokes Law. Unlike R.C. 2929.144, R.C. 2901.011

contains no operative language defining a qualifying first- or second-degree felony.

Furthermore, reading R.C. 2929.144 and 2929.14(A) together, it is clear the defining

characteristic of a qualifying first- or second-degree felony is not its inclusion in

R.C. 2901.011’s list of amended and newly-enacted statutes. Instead, an offense’s

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status as a qualifying first- or second-degree felony turns on whether the offense

was committed on or after March 22, 2019.

{¶17} There is no dispute Hiles’s involuntary-manslaughter conviction is a

first-degree felony and the offense was committed after March 22, 2019.

Accordingly, under the plain language of R.C. 2929.144(A), Hiles’s conviction for

first-degree felony involuntary manslaughter is a qualifying first-degree felony

subject to indefinite sentencing under R.C. 2929.14(A)(1)(a). Because Hiles’s

involuntary-manslaughter conviction is subject to the indefinite sentencing

provisions of the Reagan Tokes Law, we conclude his 8-12 year prison term for that

offense is not contrary to law.

C. Consecutive Sentences

{¶18} Hiles also contends the trial court erred by ordering him to serve his

12-month sentence for obstructing justice consecutively to his 8-12 year sentence

for involuntary manslaughter. Initially, Hiles appears to argue his consecutive

sentences are unsupported by the record or otherwise contrary to law because the

trial court did not properly balance R.C. 2929.12’s seriousness and recidivism

factors or give appropriate consideration to the purposes and principles of felony

sentencing contained in R.C. 2929.11. However, insofar as Hiles attempts to argue

that his consecutive sentences are not supported by the record under R.C. 2929.11

and 2929.12, the Supreme Court of Ohio has clarified that R.C. 2929.11 and 2929.12

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do not apply to consecutive-sentencing review. State v. Gwynne,

,

. Accordingly, we do not review Hiles’s consecutive

sentences for compliance with R.C. 2929.11 and 2929.12. See id. at ¶ 17-18; see

also State v. Jones, ___ Ohio St.3d ___,

.

{¶19} Hiles raises a second argument in his challenge to the trial court’s

decision to impose consecutive sentences. Hiles maintains the record does not

support the trial court’s decision to impose consecutive sentences because the record

does not support the trial court’s R.C. 2929.14(C)(4) consecutive-sentence findings.

Hiles’s second argument is proper as R.C. 2953.08(G)(2)(a) expressly allows for

appellate review of a trial court’s findings under R.C. 2929.14(C)(4).

{¶20} “Except as provided in * * * [R.C. 2929.14(C)], * * * a prison term,

jail term, or sentence of imprisonment shall be served concurrently with any other

prison term, jail term, or sentence of imprisonment imposed by a court of this state,

another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C) provides,

in relevant part:

(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

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(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 [R.C. 2929.16, 2929.17, or 2929.18], 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.

R.C. 2929.14(C)(4). “R.C. 2929.14(C)(4) requires a trial court to make specific

findings on the record before imposing consecutive sentences.” State v. Nienberg,

3d Dist. Putnam Nos. 12-16-15 and 12-16-16,

. “Specifically,

the trial court must find: (1) consecutive sentences are necessary to either protect

the public or punish the offender; (2) the sentences would not be disproportionate

to the offense committed; and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b),

or (c) applies.”

{¶21} When imposing consecutive sentences, the trial court must make the

findings required by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate

those findings into its sentencing entry. State v. Bonnell,

, 2014-

Ohio-3177, ¶ 29, 37. In complying with this requirement, the trial court “has no

obligation to state reasons to support its findings.” Id. at ¶ 37. “[P]rovided that the

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necessary findings can be found in the record and are incorporated into the

sentencing entry,” a trial court need not recite a “talismanic incantation” of the

language of R.C. 2929.14(C)(4) to properly impose consecutive sentences. Id.

{¶22} The record in this case reflects the trial court made the findings

required by R.C. 2929.14(C)(4) at the sentencing hearing and the trial court

incorporated those findings into its sentencing entry. Hiles does not dispute that the

necessary findings were made. Furthermore, Hiles does not attack the trial court’s

finding that consecutive sentences are necessary to protect the public or to punish

him. Nor does he seriously challenge the trial court’s finding that consecutive

sentences are not disproportionate to the seriousness of his conduct and to the danger

he poses to the public. Although Hiles concludes that “consecutive sentences are

disproportionate to his conduct” and that “the length of [his] sentence is

disproportionate to the offense,” he offers little in the way of specific references to

the record to support these conclusions.

{¶23} Instead, Hiles’s arguments are mostly directed toward challenging the

trial court’s finding under R.C. 2929.14(C)(4)(c) that his history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime. Hiles acknowledges he has a criminal history. Indeed, the PSI reflects

that from February 1996 through August 1996, when Hiles was 18 years old, Hiles

was charged with a combination of 17 felonies and misdemeanors. These included

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charges for theft, grand theft, burglary, vandalism, and aggravated menacing, some

of which were felonies of the second or third degree. Although many of these

charges were dismissed, Hiles was ultimately convicted on five of these charges and

sentenced to an aggregate term of 3 years in prison. The PSI reflects Hiles was

released from prison in 1999 and he did not commit any serious criminal infractions

for the next 6½ years. However, in August 2006, Hiles was found guilty of one

count of first-degree misdemeanor theft and sentenced to 2 years’ probation. Hiles’s

probation was terminated successfully in May 2008. While Hiles apparently lived

a mostly law-abiding life for the next 10 years, he was charged with fifth-degree

felony theft in October 2018, though that charge was later dismissed. Finally, the

PSI reflects Hiles admitted to using illegal substances throughout his life.

{¶24} Hiles concedes his history of criminal conduct, but argues it does not

support the imposition of consecutive sentences because he had “a considerable

amount of time when he was a law-abiding citizen.” He faults the trial court for

“reach[ing] way back in [his] history to declare he has a criminal history that

requires an excessive sentence to protect the public.” Hiles maintains that by using

“antiquated” convictions to support findings under R.C. 2929.14(C)(4)(c), anyone

who commits a criminal offense but who “straightens up and lives a law-abiding

life for a quarter of a century will never get the benefit of that significant period of

lawful living when there is a possibility of a court ordering consecutive sentences.”

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{¶25} Notwithstanding Hiles’s arguments, we cannot clearly and

convincingly find that the trial court’s R.C. 2929.14(C)(4)(c) findings are

unsupported by the record. Admittedly, Hiles’s history of criminal conduct consists

principally of conduct that occurred over the span of several months when he was

18 years old, and following his release from prison in 1999, he lived a largely law-

abiding life for a number of years. Nevertheless, R.C. 2929.14(C)(4)(c) does not

contain any temporal limitation prohibiting a trial court from considering an

offender’s history of criminal conduct once that history achieves a certain age. State

v. Fyffe, 2d Dist. Greene No. 2016-CA-14,

. Depending on

the facts of a particular case, even a “substantial time gap” in the offender’s criminal

conduct will not preclude the imposition of consecutive sentences under R.C.

2929.14(C)(4)(c). Id. at ¶ 39-44.

{¶26} Although this case might be a closer call if Hiles’s history of criminal

conduct were limited to the offenses he committed in 1996, Hiles’s argument fails

to account for the fact that he did not lead an entirely law-abiding life in the

intervening years. Hiles was convicted of a first-degree misdemeanor in 2006 and

charged with a fifth-degree felony in 2018, less than a year before he committed the

instant offenses. We recognize that the 2018 fifth-degree felony charge was

dismissed, but by referring to the offender’s history of criminal conduct, R.C.

2929.14(C)(4)(c) “does not limit the trial court’s review to an offender’s history of

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criminal convictions.” (Emphasis sic.) State v. Russell, 11th Dist. Lake No. 2019-

L-138,

; see State v. Steele, 8th Dist. Cuyahoga No. 105085,

. Furthermore, “it is settled law that a sentencing judge

can take into account facts relating to other charges, even charges that have been

dismissed or which resulted in an acquittal.” State v. Esmail, 7th Dist. Columbiana

No.

,

; Steele at ¶ 10. In light of Hiles’s substantial

early-life criminal conduct and the more recent instances of his criminal conduct,

we cannot clearly and convincingly find that the trial court’s R.C. 2929.14(C)(4)(c)

findings are unsupported by the record.

{¶27} In sum, the trial court made the findings required by R.C.

2929.14(C)(4) before imposing consecutive sentences and incorporated those

findings into its sentencing entry. In addition, the trial court’s R.C. 2929.14(C)(4)

findings are not clearly and convincingly unsupported by the record. Therefore, we

conclude that there is not clear and convincing evidence that Hiles’s consecutive

sentences are unsupported by the record or otherwise contrary to law.

{¶28} Hiles’s assignment of error is overruled.

IV. Conclusion

{¶29} For the foregoing reasons, Hiles’s sole assignment of error is

overruled. Having found no error prejudicial to the appellant herein in the

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particulars assigned and argued, we affirm the judgment of sentence of the Union

County Court of Common Pleas.

Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr

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