State v. Dupler

2024 Ohio 5721

• Court: Ohio Court of Appeals
• Decided: December 6, 2024
• Docket: 2024 CA 00035
• Status: Published

Opinion

[Cite as State v. Dupler, 2024-Ohio-5721.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : DAKOTA A. DUPLER : Case No. 2024 CA 00035 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2023 CR 00111

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 6, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT BRIAN A. SMITH 20 South Second Street 123 South Miller Road Newark, OH 43055 Suite 250 Fairlawn, OH 44333 Licking County, Case No. 2024 CA 00035 2

King, J.

{¶ 1} Defendant-Appellant Dakota Dupler appeals the March 27, 2024 judgment

of conviction and sentence of the Licking County Court of Common Pleas. Plaintiff-

Appellee is the State of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} A full recitation of the underlying facts is unnecessary for our resolution of

this appeal. The instant matter stemmed from two incidences, the first occurring on

January 14, 2023 at the Best Buy in Heath, Ohio where Dupler stole items totaling

$1,769.95. On May 23, 2022 members of the Central Ohio Drug Task Force initiated a

traffic stop on a Buick driven by Dupler. Drugs and drug paraphernalia were subsequently

found in the Buick as well as the hotel room where Dupler was living at the time.

{¶ 3} As a result of these events, Dupler was charged by indictment with one

count of theft, a felony of the fifth degree, possession of cocaine, a felony of the fifth

degree, aggravated possession of methamphetamine, a felony of the third degree,

possession of drug paraphernalia, a misdemeanor of the first degree, and falsification a

misdemeanor of the first degree.

{¶ 4} On March 27, 2024, Dupler entered pleas of guilty to each count of the

indictment. The trial court sentenced Dupler to nine months incarceration for theft and

possession of cocaine, two years incarceration for aggravated possession of

methamphetamine, and 30 days jail time for possession of drug paraphernalia and

falsification. The trial court ordered Dupler to serve the theft and drug possession charges

consecutively for an aggregate total of 42 months incarceration. Licking County, Case No. 2024 CA 00035 3

{¶ 5} Dupler filed an appeal and the matter is now before this court for

consideration. He raises two assignments of error as follow:

I

{¶ 6} "THE TRIAL COURT'S SENTENCE OF APPELLANT WAS CONTRARY

TO LAW, BECAUSE THE TRIAL COURT IMPOSED CONSECUTIVE SENTENCES

WITHOUT MAKING THE FINDINGS REQUIRED UNDER R.C. 2929.14(C)(4) AT

APPELLANT'S SENTENCING HEARING."

II

{¶ 7} "THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES

WAS NOT SUPPORTED BY THE RECORD."

I, II

{¶ 8} Because they are interrelated, we elect to address Dupler's assignments of

error together. Dupler argues his sentence is contrary to law because the trial court failed

to make the findings required by R.C. 2929.14(C)(4) and further argues the imposition of

consecutive sentences is not supported by the record and based on improper

considerations. We disagree.

Applicable Law

{¶ 9} This court reviews felony sentences using the standard of review set forth

in R.C. 2953.08. State v. Marcum, 2016-Ohio-1002 ¶ 22; State v. Howell, 2015-Ohio-

4049, ¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's standard of review as

follows: Licking County, Case No. 2024 CA 00035 4

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The 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. The appellate court's standard for review is not

whether the sentencing court abused its discretion. The appellate

court may take any action authorized by this division if it clearly and

convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or

(C)(4) of section 2929.14, or division (I) of section 2929.20 of the

Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶ 10} R.C. 2929.14(C)(4) governs consecutive sentences. That section states:

(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 Licking County, Case No. 2024 CA 00035 5

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.

{¶ 11} "R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court's

consecutive-sentence findings, and the trial court's findings must be upheld unless those

findings are clearly and convincingly not supported by the record." State v. Gwynne, 2023-

Ohio-3851, ¶ 5. "Clear and convincing evidence is that measure or degree of proof which

is more than a mere 'preponderance of the evidence,' but not to the extent of such Licking County, Case No. 2024 CA 00035 6

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established." Cross v. Ledford, 161 Ohio St. 469, (1954), paragraph three of the

syllabus.

{¶ 12} When imposing consecutive sentences, a trial court must state the required

findings at the sentencing hearing. State v. Bonnell, 2014-Ohio-3177, ¶ 29. Because a

court speaks through its journal, the court should also incorporate its statutory findings

into the sentencing entry. Id. However, a word-for-word recitation of the language of the

statute is not required. Id. As long as the reviewing court can discern the trial court

engaged in the correct analysis and can determine the record contains evidence to

support the findings, consecutive sentences should be upheld. Id.

Dupler's Sentence is Not Contrary to Law and is Supported by the Record

{¶ 13} We first note Dupler did not object during the sentencing hearing to the

imposition of consecutive sentences, thereby forfeiting all but plain error. State v. Wilson,

2013-Ohio-1520 (10th Dist.) ¶ 8. An error not raised in the trial court must be plain error

for an appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978) at paragraph

one of the syllabus; Crim.R. 52(B). In order to prevail under a plain error analysis,

appellant bears the burden of demonstrating that the outcome of the proceeding clearly

would have been different but for the error. Id. at paragraph two of the syllabus. Notice of

plain error "is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus.

{¶ 14} Dupler has failed to raise or argue plain error and additionally argues plain

error is inapplicable. Upon review of the record, however, we find no error plain or Licking County, Case No. 2024 CA 00035 7

otherwise. We find the trial court engaged in the correct analysis. It found consecutive

sentences were not disproportionate to the seriousness of Dupler's conduct, the danger

he poses to the public, and were further necessary because Dupler was on community

control in Perry Country when he committed the instant offenses, was not complying with

orders in that matter, and had two outstanding warrants in Franklin County. Transcript of

March 27, 2024 sentencing (T.) 16-17. As mentioned above, a word-for-word recitation

of the applicable factors is unnecessary. We are able to discern from the record before

us that the trial court engaged in the correct analysis. Upon review of the record we

further find it contains ample evidence to support the trial court's consecutive sentence

findings.

The Imposition of Consecutive Sentences was not Based on Improper Considerations

{¶ 15} Dupler also argues the trial court based its imposition of consecutive

sentences on his inability to pay restitution. He directs us to the trial court's comments

during sentencing pointing out that Dupler's prior record and history of non-compliance

with previously ordered community control sanctions alongside Dupler's declaration prior

to sentencing that he was fully taking "responsibility for all these charges." Transcript of

sentencing at 16. Based on Dupler's declaration of taking responsibility, the trial court

asked if Dupler had with him the restitution he owed for the theft charge. Dupler stated

he did not. The trial court then made it clear that it found Dupler's claims insincere:

What kind of crap is that you are taking responsibility. The only thing

you've done is be caught and stuck in jail, and now you want

released. We're going to judge you by your actions, and it is bad Licking County, Case No. 2024 CA 00035 8

enough that you're stealing from the business people here, and then

you return to sell drugs to people at hotels. What kind of -- what good

is that doing the community? I don't see any. You are only

encouraging people to steal so they can get more money to buy stuff

from you. I don't see any redeeming qualities here, Mr. Dupler.

{¶ 16} T. 18.

{¶ 17} As the State points out, when read in their entirety it is clear that the trial

court's comments simply reflect its belief that Dupler was feigning remorse, not that it

was basing consecutive sentences on his inability to pay restitution the day of

sentencing. We therefore reject Dupler's claim that the trial court based its imposition of

consecutive sentences on his inability to pay restitution the day of sentencing.

Conclusion

{¶ 18} The trial court's imposition of consecutive sentences is supported by the

record and is neither contrary to law, nor based on improper considerations. Accordingly,

the first and second assignments of error are overruled.

{¶ 19} The judgment of the Licking County Court of Common Pleas is affirmed.

By King, J.,

Hoffman, P.J. and

Baldwin, J. concur.