State v. Adkins

2025 Ohio 2745

• Court: Ohio Court of Appeals
• Decided: August 4, 2025
• Docket: CT2024-0145
• Status: Published

Opinion

[Cite as State v. Adkins, 2025-Ohio-2745.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Robert G. Montgomery, J. -vs-

DENNIS ADKINS Case No. CT2024-0145

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2024-0523

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 4, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appelltan

JOSEPH PALMER APRIL F. CAMPBELL Assistant Prosecutor Campbell Law, LLC 27 North 5th Street, Suite 201 6059 Frantz Road, Suite 206 Zanesville, Ohio 43701 Dublin, Ohio 43017 Hoffman, J. {¶1} Defendant-appellant Dennis Adkins appeals the judgment entered by the

Muskingum County Common Pleas Court convicting him of breaking and entering (R.C.

2911.13(B)), theft (R.C. 2813.02(A)(1)), and receiving stolen property (R.C. 2913.51(A)),

and sentencing him to an aggregate term of incarceration of thirty-six months. Plaintiff-

appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} The Tri-Valley Wildlife Area in Muskingum County, Ohio, includes

reclaimed gas property with an area called the “pipe yard.” The pipe yard provides

storage for gas equipment, including concrete-filled pipes and gas separators. These

items are owned by the State of Ohio.

{¶3} Between the dates of July 15, 2023, and March 2, 2024, Appellant, along

with others, cut a lock and began taking items out of the pipe yard to sell for scrap. The

value of the stolen property exceeded $1,000.

{¶4} Appellant was indicted by the Muskingum County Grand Jury with breaking

and entering, two counts of theft, three counts of receiving stolen property, and two counts

of tampering with evidence. Appellant entered a plea of guilty to theft, breaking and

entering, and receiving stolen property, and the remaining counts were dismissed by the

State. The trial court convicted Appellant upon his pleas and the case proceeded to

sentencing. The parties jointly recommended a sentence of community control. The trial

court sentenced Appellant to twelve months incarceration on each count, to be served

consecutively, for an aggregate term of incarceration of thirty-six months. It is from the

December 26, 2024 judgment of the trial court Appellant prosecutes his appeal. {¶5} Appellate counsel for Appellant has filed a Motion to Withdraw and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), rehearing den., 388 U.S. 924,

indicating the within appeal is wholly frivolous. In Anders, the United States Supreme

Court held if, after a conscientious examination of the record, a defendant's counsel

concludes the case is wholly frivolous, then he or she should so advise the court and

request permission to withdraw. Id. at 744. Counsel must accompany the request with a

brief identifying anything in the record which could arguably support the appeal. Id.

Counsel also must: (1) furnish the client with a copy of the brief and request to withdraw;

and, (2) allow the client sufficient time to raise any matters the client chooses. Id. Once

the defendant's counsel satisfies these requirements, the appellate court must fully

examine the proceedings below to determine if any arguably meritorious issues exist. If

the appellate court also determines the appeal is wholly frivolous, it may grant counsel's

request to withdraw and dismiss the appeal without violating constitutional requirements,

or may proceed to a decision on the merits if state law so requires. Id.

{¶6} We find counsel has complied with Anders. Appellant has not filed a pro se

brief, and the State has not filed a response brief. Counsel sets forth one assignment of

error which could arguably support the appeal:

THE TRIAL COURT ERRED IN ACCEPTING ADKINS’S GUILTY

PLEAS UNDER CRIM. R. 11 AND ERRED IN SENTENCING HIM.

{¶7} We have reviewed the transcript of the plea hearing, and find the trial court

complied with Crim. R. 11 in accepting Appellant’s guilty pleas. As noted in counsel’s Anders brief, the trial court failed to notify Appellant any sentences imposed could be

ordered to be served consecutively. However, the Ohio Supreme Court has held a guilty

plea is not rendered involuntary when a trial court fails to inform a defendant who pleads

guilty to more than one offense of the potential for consecutive sentences. State v.

Johnson, 40 Ohio St. 3d 130, 132 (1988).

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

2953.08. State v. Roberts, 2020-Ohio-6722, ¶13 (5th Dist.), citing State v. Marcum, 2016-

Ohio-1002. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or

vacate a sentence and remand for sentencing where we clearly and convincingly find

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(l), or the sentence is otherwise contrary to

law. Id., citing State v. Bonnell, 2014-Ohio-3177.

{¶9} When sentencing a defendant, the trial court must consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12. State v. Hodges, 2013-Ohio-5025, ¶ 7 (8th Dist.).

{¶10} “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others, to punish the offender, and to promote the

effective rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). To achieve these 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. Id. 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).

{¶11} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion, but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

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

{¶12} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh

the evidence in the record and substitute our own judgment for that of the trial court to

determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.

2929.12. State v. Jones, 2020-Ohio-6729, ¶ 42. Instead, we may only determine if the

sentence is contrary to law.

{¶13} A sentence is not clearly and convincingly contrary to law where the trial

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.” State v. Pettorini, 2021-Ohio-1512, ¶¶ 14-16 (5th

Dist.).

{¶14} The trial court stated in its judgment entry it considered the principles and

purposes of sentencing under R.C. 2929.11 and the balance of seriousness and

recidivism factors pursuant to R.C. 2929.12. The sentence is within the statutory range.

Pursuant to Jones, supra, this Court is not permitted to independently weigh the evidence in the record and substitute our own judgment for that of the trial court to determine a

sentence which best reflects compliance with R.C. 2929.11 and R.C. 2929.12. We find

the sentence imposed on Appellant is not contrary to law.

{¶15} R.C. 2929.14(C)(4) provides:

(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:

(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.

{¶16} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no obligation to

state reasons to support its findings, nor must it recite certain talismanic words or phrases

in order to be considered to have complied. State v. Bonnell, 2014-Ohio-3177, syllabus.

{¶17} The Ohio Supreme Court has recently clarified the standard of review this

Court is to apply in reviewing consecutive sentences:

Nowhere does the appellate-review statute direct an appellate court

to consider the defendant's aggregate sentence. Rather, the appellate court

must limit its review to the trial court's R.C. 2929.14(C)(4) consecutive-

sentencing findings. In this case, the court of appeals purported to review

the trial court's findings. But much of its analysis focused on its

disagreement with the aggregate sentence. The appellate court

emphasized that Glover's aggregate sentence was “tantamount to a life

sentence,” 2023-Ohio-1153, 212 N.E.3d 984, ¶ 59 (1st Dist.), and

determined that it was too harsh when compared with the sentences that

the legislature has prescribed for what the court considered more serious

crimes, id. at ¶ 97-98. To the extent that the court of appeals premised its holding on its disagreement with Glover's aggregate sentence rather than

its review of the trial court's findings, it erred in doing so.

The statute does not permit an appellate court to simply substitute

its view of an appropriate sentence for that of the trial court. An appellate

court's inquiry is limited to a review of the trial court's R.C. 2929.14(C)

findings. R.C. 2953.08(G)(2). Only when the court of appeals concludes that

the record clearly and convincingly does not support the trial court's findings

or it clearly and convincingly finds that the sentence is contrary to law is it

permitted to modify the trial court's sentence. Id.

Thus, an appellate court may not reverse or modify a trial court's

sentence based on its subjective disagreement with the trial court. And it

may not modify or vacate a sentence on the basis that the trial court abused

its discretion. Rather, the appellate court's review under R.C.

2953.08(G)(2)(a) is limited. It must examine the evidence in the record that

supports the trial court's findings. And it may modify or vacate the sentence

only if it “clearly and convincingly” finds that the evidence does not support

the trial court's R.C. 2929.14(C)(4) findings. R.C. 2953.08(G)(2)(a).

Though “clear-and-convincing” is typically thought of as an

evidentiary standard, the General Assembly has chosen to use that

standard as the measure for an appellate court's review of a trial court's

R.C. 2929.14(C)(4) findings. As we have explained, “clear and convincing

evidence” is a degree of proof that is greater than a preponderance of the

evidence but less than the beyond-a-reasonable-doubt standard used in criminal cases. Gwynne, 2023-Ohio-3851, 231 N.E.3d 1109, at ¶ 14 (lead

opinion), citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus. The appellate-review statute does not

require that the appellate court conclude that the record supports the trial

court's findings before it may affirm the sentence. Rather, the statute only

allows for modification or vacation only when the appellate court “clearly

and convincingly finds” that the evidence does not support the trial court's

findings. R.C. 2953.08(G)(2)(a). “This language is plain and unambiguous

and expresses the General Assembly's intent that appellate courts employ

a deferential standard to the trial court's consecutive-sentence findings.

R.C. 2953.08(G)(2) also ensures that an appellate court does not simply

substitute its judgment for that of a trial court.” Gwynne, 2023-Ohio-3851,

231 N.E.3d 1109, at ¶ 15 (lead opinion).

{¶18} State v. Glover, 2024-Ohio-5195, ¶¶ 43-46.

{¶19} The trial court made the requisite findings to impose consecutive sentences.

As discussed by the trial court at the sentencing hearing, Appellant’s bond in the instant

case was revoked because of his admission to drug use. Appellant also had an active

warrant for felony theft from Summit County. Appellant’s past criminal history included a

possession of drug paraphernalia conviction and five prior theft convictions, as well as

numerous warrants issued for failure to appear. We do not clearly and convincingly find

the evidence does not support the trial court’s consecutive sentencing findings. {¶20} After independently reviewing the record, we agree with Counsel's

conclusion no arguably meritorious claims exist upon which to base an appeal. Hence,

we find the appeal to be wholly frivolous under Anders, grant counsel's request to

withdraw, and affirm the judgment of the Muskingum County Court of Common Pleas.

By: Hoffman, J. Baldwin, P.J. and Montgomery, J. concur