State v. Collins

2023 Ohio 3011

Opinion

[Cite as State v. Collins, 2023-Ohio-3011.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-22-28

v.

DANIEL ALAN COLLINS, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 22-CR-0098

Judgment Affirmed

Date of Decision: August 28, 2023

APPEARANCES:

Alison Boggs for Appellant

Andrew M. Bigler for Appellee Case No. 14-22-28

MILLER, P.J.

{¶1} Defendant-appellant, Daniel A. Collins, Jr. (“Collins”), appeals the

November 10, 2022 judgment entry of sentence of the Union County Court of

Common Pleas. For the reasons that follow, we affirm.

Background

{¶2} On April 29, 2022, the Union County Grand Jury indicted Collins on

six counts: Counts One and Five of breaking and entering in violation of R.C.

2911.13(B), (C), fifth-degree felonies; Counts Two, Three, and Six of grand theft

of a motor vehicle in violation of R.C. 2913.02(A)(1), (B)(5), fourth-degree

felonies; and Count Four of theft in violation of R.C. 2913.02(A)(1), (B)(2), a fifth-

degree felony. Collins appeared for arraignment on May 11, 2022 where he entered

not guilty pleas to the charges in the indictment.

{¶3} Pursuant to a negotiated-plea agreement, on September 27, 2022,

Collins appeared for a change-of-plea hearing where he entered guilty pleas to the

three counts of grand theft of a motor vehicle. In exchange, the State agreed to

recommend dismissal of the remaining counts. The parties did not have a jointly-

recommended sentence. The trial court accepted Collins’s guilty pleas and found

him guilty of Counts Two, Three, and Six. The trial court also dismissed Counts

One, Four, and Five at the request of the State. The trial court ordered a presentence

investigation.

-2- Case No. 14-22-28

{¶4} On November 10, 2022, Collins appeared for a sentencing hearing. The

trial court sentenced Collins to 18 months in prison on each of the three counts. The

trial court ordered the sentences to run consecutively to each other and consecutive

to the sentence imposed in Champaign County case number 22-CR-0031. That

same day, the trial court filed its judgment entry of sentence.

{¶5} Collins filed a notice of appeal on December 9, 2022. He raises two

assignments of error for our review. For ease of discussion, we will address

Collins’s assignments of error together.

First Assignment of Error

The trial court erred when it ordered Appellant’s sentence to run consecutive to the sentence he received from Champaign County.

Second Assignment of Error

The trial court erred when it sentenced Appellant to maximum sentences and further erred when it ordered the sentences to be served consecutive[ly].

{¶6} Collins’s two assignments of error contain interrelated issues. In his

first assignment of error, Collins argues the trial court erred by sentencing him to

the maximum term of 18 months in prison for each count of grand theft of a motor

vehicle. He also argues the trial court erred by ordering the sentences for each count

in the instant case to run consecutively to each other. In his second assignment of

error, Collins argues the trial court erred by ordering the sentences in the instant

-3- Case No. 14-22-28

case to be served consecutively to the prison term he received in Champaign

County.

{¶7} We first address Collins’s argument the trial court erred by sentencing

him to the maximum term of 18 months in prison for each count of grand theft of a

motor vehicle.

Standard of Review

{¶8} 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

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

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. 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, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

Relevant Authority: Maximum Sentences

{¶9} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶

9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9. A

sentence imposed within the statutory range is generally valid so long as the trial

court considered the applicable statutory policies that apply to every felony

-4- Case No. 14-22-28

sentencing, including those contained in R.C. 2929.11, and the sentencing factors

of 2929.12. See State v. Watts, 3d Dist. Auglaize No. 2-20-10, 2020-Ohio-5572, ¶

10 and 14; State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31.

{¶10} R.C. 2929.11 provides, in pertinent part, that 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 the overriding purposes of felony

sentencing, R.C. 2929.11 directs courts to “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. In addition, R.C. 2929.11(B) instructs that a sentence imposed for a felony “shall

be reasonably calculated to achieve the three overriding purposes of felony

sentencing * * *, 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.”

{¶11} “In accordance with these principles, the trial court must consider the

factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s

conduct and the likelihood of the offender’s recidivism.” Smith at ¶ 10, citing R.C.

-5- Case No. 14-22-28

2929.12(A). In addition, the trial court must consider “the factors set forth in [R.C.

2929.12(F)] pertaining to the offender’s service in the armed forces of the United

States.” R.C. 2929.12(A). “‘A sentencing court has broad discretion to determine

the relative weight to assign the sentencing factors in R.C. 2929.12.’” Smith at ¶

15, quoting State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th

Dist.), citing State v. Arnett, 88 Ohio St.3d 208, 215 (2000).

Analysis: Maximum Sentences

{¶12} The trial court sentenced Collins to 18 months in prison for each count

of fourth-degree felony grand theft of a motor vehicle. This sentence is within the

statutory range for felonies of the fourth degree established by R.C. 2929.14(A)(4).

{¶13} The record reflects that the trial court considered R.C. 2929.11 and

2929.12 when fashioning Collins’s sentence. Specifically, at the sentencing

hearing, the trial court stated it considered “the principles and purposes of

sentencing under Revised Code Section 2929.11 * * * and balanced the seriousness

and recidivism factors under Revised Code Section 2929.12.” (Nov. 10, 2022 Tr.

at 10). In its dialogue with Collins, the trial court addressed the seriousness and

recidivism factors in some detail as they related to the instant case. (Id. at 10-11).

Moreover, in its judgment entry of sentence, the trial court indicated it considered

R.C. 2929.11 and 2929.12 when fashioning Collins’s sentence. (Doc. No. 27).

Further, in its judgment entry of sentence, the trial court specifically indicated which

-6- Case No. 14-22-28

R.C. 2929.12(B)-(F) factors applied to the instant case. (Id.). Therefore, because

Collins’s prison sentence is within the applicable statutory range and the record

supports that the trial court fulfilled its obligation of considering R.C. 2929.11 and

2929.12, Collins’s individual sentences are valid. See Watts, 2020-Ohio-5572, at ¶

14.

{¶14} Yet, Collins argues his 18-month prison sentences for grand theft of a

motor vehicle are unsupported by the record or contrary to law because the conduct

underlying the instant offenses does not constitute the “worst form of the offense.”

Collins also argues the trial court made findings not consistent with the facts

contained in the record.

{¶15} However, the record belies his claims. Specifically, Collins argues

that because the victims were not seeking restitution, the trial court erred by finding

the victims suffered serious economic harm. However, despite Collins’s argument

to the contrary, the victims’ decision not to seek restitution is not mutually exclusive

with the victims suffering serious economic harm as a result of the offenses. See

generally State v. Orms, 10th Dist. Franklin No. 14AP-750, 2015-Ohio-2870, ¶ 11-

12. Further, Collins contends the trial court erred by finding that “at the time of

committing the offense[s], the offender was under release from confinement before

trial or sentencing.” (Appellant’s Brief at 7). Collins’s argument is based on an

assumption that the trial court’s finding referenced Collins’s cases in Madison and

-7- Case No. 14-22-28

Champaign Counties, which occurred after the instant case. However, a review of

the PSI, which was provided as part of the record, indicates that, on the date of the

offenses in the instant case, Collins had been released on bond for two indictments

pending in Franklin County. Accordingly, the trial court’s finding that, on the date

of the instant offenses, Collins was on release before trial or sentencing is supported

by the record.

{¶16} Further, although “R.C. 2953.08(G)(2)(a) permits an appellate court

to modify or vacate a sentence if it clearly and convincingly finds ‘the record does

not support the sentencing court’s findings under’ certain specified statutory

provisions[,] * * * R.C. 2929.11 and 2929.12 are not among the statutory provisions

listed in R.C. 2953.08(G)(2)(a).” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, ¶ 28. Moreover, “an appellate court’s determination that the record does not

support a sentence does not equate to a determination that the sentence is ‘otherwise

contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Thus,

R.C. 2953.08(G)(2) “does not provide a basis for an appellate court to modify or

vacate a sentence based on its view that the sentence is not supported by the record

under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. “[A]n appellate court errs if it * * *

modifies or vacates a sentence ‘based on the lack of support in the record for the

trial court’s findings under R.C. 2929.11 and R.C. 2929.12.’” State v. Dorsey, 2d

Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17, quoting Jones at ¶ 29.

-8- Case No. 14-22-28

{¶17} Accordingly, even if we were to agree with Collins that his sentence

is not supported by the record under R.C. 2929.11 and 2929.12, which we do not,

we could not vacate or modify his sentence on that basis. As discussed above,

Collins’s prison sentence is within the applicable statutory range, and it is clear the

trial court considered R.C. 2929.11 and 2929.12 when fashioning Collins’s

sentence. Hence, Collins’s prison sentence is not clearly and convincingly contrary

to law, and it must therefore be affirmed. See State v. Slife, 3d Dist. Auglaize No.

2-20-17, 2021-Ohio-644, ¶ 17.

{¶18} Next, Collins argues that the trial court erred by ordering the sentences

in the instant case to be served consecutively to each other.

Relevant Authority: Consecutive Sentencing

{¶19} “Except as provided in * * * division (C) of section 2929.14, * * * 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:

(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, and if the court also finds any of the following:

-9- Case No. 14-22-28

(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.

{¶20} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11. 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. Id.

{¶21} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and is not

“required to give a talismanic incantation of the words of the statute, provided that

-10- Case No. 14-22-28

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

sentencing entry.” Bonnell at ¶ 37.

Analysis: Consecutive Sentencing

{¶22} Collins does not argue that the trial court failed to make the requisite

consecutive-sentencing findings under R.C. 2929.14(C)(4). Rather, Collins

contends the record does not support the trial court’s findings.

{¶23} At the sentencing hearing, the trial court stated:

[C]onsecutive sentences are necessary to protect the public from future crime and to punish the defendant and are not disproportionate to the seriousness of the offender’s conduct and to the danger the defendant poses to the public. The Court further finds that the offender committed one or more of the multiple offenses while he was awaiting trial or sentencing[,] [w]as under a sanction imposed pursuant to Revised Code Section 2929.16, 17, or 18 * * * [a]nd was under post release control for a prior offense. The Court further finds that at least two of the multiple offenses were committed as part of one or more courses of conduct * * * [a]nd that 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.

(Nov. 10, 2022 Tr. at 11-12). The trial court memorialized those findings in its

sentencing entry. (Doc. No. 27). Accordingly, the record reflects that the trial court

made the appropriate R.C. 2929.14(C)(4) findings before imposing consecutive

sentences and incorporated those findings into its sentencing entry.

{¶24} Nonetheless, Collins summarily argues that his maximum,

consecutive sentences are disproportionate to the instant offenses. However, we do

-11- Case No. 14-22-28

not find that Collins’s sentences are clearly and convincingly unsupported by the

record. A review of the detailed information contained in the PSI, including the

factual basis of the instant case, Collins’s extensive criminal history, lack of

remorse, and failure to respond favorably to sanctions imposed in the past indicate

that maximum, consecutive sentences are not disproportionate to the instant

offenses.

{¶25} Finally, Collins contends that the trial court erred by imposing the

sentences in the instant Union County case consecutively to the sentence he received

in Champaign County. The record indicates that subsequent to Collins’s indictment

on the instant offenses, he was charged in Champaign County for actions which

occurred after those underlying the instant offenses. However, Collins was

sentenced in the Champaign County case prior to his sentencing in the instant case.

Accordingly, Collins argues the trial court erred by ordering him to serve the

sentence in the Union County case consecutively to the sentence in the Champaign

County case because the criminal activity in Union County occurred prior to the

criminal activity in Champaign County. We disagree.

{¶26} Essentially, Collins implores this Court to interpret R.C.

2929.14(C)(4) to prohibit the imposition of consecutive sentences if the sentences

are not imposed in chronological order as to the commission of the underlying

-12- Case No. 14-22-28

offenses. However, this argument, though inventive, is wholly unsupported by

statutory or caselaw.

{¶27} When interpreting statutes, reviewing courts must “give effect to the

words used, not * * * delete words used or * * * insert words not used.” Columbus-

Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125, 127 (1969).

Collins’s request that this Court insert a temporal requirement not required by R.C.

2929.14(C)(4) is beyond the province of this court. See State v. Bollar, _____Ohio

St.3d_____, 2022-Ohio-4370, ¶ 24. Moreover, we find Collins’s request is against

public policy and would present an unnecessary myriad of logistical hurdles at the

trial court level.

{¶28} Collins’s first and second assignments of error are overruled.

Conclusion

{¶29} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Union County Court

of Common Pleas.

Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr

-13-