State v. Lorenzana

2024 Ohio 2900, 248 N.E.3d 956

• Court: Ohio Court of Appeals
• Decided: August 1, 2024
• Docket: 112768
• Status: Published

Opinion

[Cite as State v. Lorenzana, 2024-Ohio-2900.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112768 v. :

XAVIER LORENZANA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED; REMANDED RELEASED AND JOURNALIZED: August 1, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-663082-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Brian Callahan, Assistant Prosecuting Attorneys, for appellee.

Joseph V. Pagano, for appellant.

MARY J. BOYLE, J.:

In this appeal, defendant-appellant, Xavier Lorenzana (“Lorenzana”),

contends that he had a reasonable expectation of privacy in his hotel room and the

trial court should have suppressed the drugs and money the officers discovered after

effectuating his arrest on an active warrant. Following a jury trial, Lorenzana appeals his convictions and sentence for drug trafficking, drug possession, and

possessing criminal tools. For the reasons set forth below, we affirm the trial court’s

judgment and we find that Lorenzana did not have a reasonable expectation of

privacy to the hotel room because Lorenzana had three active warrants for his arrest,

the hotel affirmatively acted to evict Lorenzana, the police had knowledge that

Lorenzana was evicted, and the police had a reasonable belief that he was in the hotel

room. However, because the trial court assessed the mandatory $10,000 fine after

finding Lorenzana indigent and waiving the fine, we remand to the trial court for the

sole purpose to correct the sentencing entry to reflect that the mandatory $10,000

fine was waived.

I. Facts and Procedural History

In September 2021, Lorenzana was charged in a five-count

indictment stemming from his arrest at the Radisson Cleveland Airport Hotel in

North Olmsted. Count 1 charged him with trafficking a fentanyl-related compound

in an amount equaling or exceeding 1,000 unit doses or 100 grams. Count 2 charged

him with drug possession of a fentanyl-related compound in an amount equaling or

exceeding 1,000 unit doses or 100 grams. Count 3 charged him with drug

possession of a substance containing cocaine with the amount of the drug involved

being less than 5 grams. Count 4 charged him with drug possession of Tramadol, a

Schedule IV drug, in an amount less than the bulk amount. Count 5 charged him

with possessing criminal tools and contained a furthermore clause stating that

Lorenzana possessed “U.S. currency and/or other drug related materials” with purpose to commit drug trafficking. Each of the counts carried a forfeiture of money

in a drug case clause in the amount of $987.

Lorenzana filed a motion to suppress, seeking to suppress the

evidence seized from his arrest at the Radisson because he had a reasonable

expectation of privacy within the room. Plaintiff-appellee, the State of Ohio,

opposed and the court held a hearing on the matter. The following evidence was

adduced at the hearing.

Halle Bratz (“Bratz”), the director of sales and a manager at the

Radisson, testified that in order to secure a hotel room, a guest must provide a

photo ID, a credit card, and complete the hotel registration form. If the guest

wanted to extend their stay, the guest would be required to again provide a photo

ID, a credit card, and complete the registration form. The hotel would then provide

a new key card because the old key card would no longer function properly to

unlock the room that was originally rented. If a guest is evicted from a room, it is

a normal practice for hotel staff to collect any property that had been left and set it

aside so the owner could later retrieve the property. If there is a large amount of

property left in the room, the hotel will charge the guest for another night’s stay

because the hotel needed to clean the room and did not have the opportunity to

rent the room to a different guest. This additional fee does not entitle the guest to

stay in the room.

According to Bratz, Lorenzana rented room 615, extending his

reservation day-to-day, from August 1-4, 2021. Bratz testified that upon check-in, their system automatically authorizes payment at the time that the card is swiped

at the front desk. She went on to explain, “So that almost time stamps exactly when

the guest is present and checking into their room. Sometimes the funds, depending

on different bank institutions, will actually remove the funds or show on someone’s

account a slightly different time or date, but ours is time stamped as to when that

card was swiped at the front desk.” (Tr. 73.) Bratz testified that a female came to

the front desk on either August 3d or 4th to extend the stay for one night. However,

the hotel did not renew the reservation at that time because the female refused to

provide her identification.

Bratz further testified Lorenzana was given leniency from August 1st

to August 4th, and was allowed to extend his stay in room 615 after the check-out

time as a courtesy. The fact that Lorenzana continued to extend his stay on a day-

to-day basis, however, without following hotel policy, put a strain on the hotel’s

operation, and the hotel ultimately decided they would not accept any further

extensions of his stay. As a result, Lorenzana was required to checkout on

August 5, 2021, by 11:00 a.m. because he did not come to the front desk prior to

checkout time to renew his reservation.

Bratz called the North Olmsted police around 11:00 a.m. on

August 5th to assist with the departure. The police advised Bratz that Lorenzana

had warrants and they were going to bring multiple units for safety. Bratz and the

police walked to room 615, and Bratz knocked on the door. She heard a female

voice but could not understand what she said, so she knocked on the door again. The female then opened the door a few inches, and the police entered the room.

Bratz gave the police consent to search the room at that point.

On cross-examination, Bratz acknowledged that an exhibit presented

by defense counsel indicates a Cash App transaction for Lorenzana in the amount of

$117.50 to the Radisson Hotel on August 5, 2021, at 12:26 p.m. Bratz testified that

Lorenzana was charged for this as an additional night and tax following the arrest

because they “had to clean up the room. We had to box up everything. We ha[d]

to reclean and everything, so we then could not resell that room because it took us

away from processing and everything, so we charged them a nominal fee of the past

one night’s room and tax.” (Tr. 96-97.) According to Bratz, this transaction was

not reflected in the hotel’s records because it “likely was processed on a separate

folio . . . because [Lorenzana] was no longer in the guestroom, so we [could not]

affiliate that reservation or that charge with a guestroom.” (Tr. 97.) Bratz

acknowledged that she lacked any records to memorialize what the charge

represents for the transaction on August 5th.

North Olmsted Police Officer Jack Butcher (“Officer Butcher”)

testified that he received a call from Bratz on his cell phone around 10:00 a.m. on

August 5th. Bratz indicated to Officer Butcher that the day before a female came to

the front desk to “re-up” the room rented in a Lorenzana’s name. Bratz did not

renew the reservation because the female refused to provide her identification.

Officer Butcher ran Lorenzana’s name through a law enforcement database, which

revealed three active warrants from Lorain. Officer Butcher consulted with detectives in his office and contacted authorities in Lorain to coordinate a “pick up”

of Lorenzana. When Officer Butcher arrived at the Radisson, he met with Bratz, who

told him that check out was at 11:00 a.m. and Lorenzana had not “re-upped [his]

registration for the next day.” (Tr. 120-121.) Bratz requested a civil assist to help

them vacate the room. At approximately, 11:30 a.m., Bratz, Officer Butcher, and

five other officers went to room 615.

Officer Butcher testified that as they were walking up to the room, he

heard both a female and male voice inside. The officers stood away from the door

as Bratz knocked on the door and announced herself. Bratz knocked again, at which

point Officer Butcher heard the voices say, “We’ll be out shortly.” (Tr. 122.)

Moments later, a female opened the door. The officers then pushed open the door,

pulled the female out, went inside, and cleared the room. Officers found Lorenzana

in the bathroom behind the closed door. Officers pulled Lorenzana out of the

bathroom and placed him in the hallway where he was detained. Officers then

patted Lorenzana down and found a small plastic bag of pills. At this point, Bratz

gave the officers consent to search the room. During the subsequent search, Officer

Butcher discovered a big bag of pills inside of the toilet tank. Officer Butcher

testified that he lifted up the lid “and inside to the left by the flush handle is where

th[e]se pills were located.” (Tr. 129.)

Lorenzana testified on his own behalf. On August 1, 2021, he rented

a room for himself and a female at the Radisson using his Cash App credit card.

He intended to stay day-to-day for a couple of days, and the hotel was “okay with that.” (Tr. 203.) He was able to “re-up” his room each day over the phone, except

for August 5th. According to Lorenzana, the hotel attendant asked him to come to

the front desk because she had to run his credit card again. As a result, Lorenzana

sent the female to the front desk. Upon her return, the female advised that she

renewed the room for August 5th. Lorenzana believed that he had paid for the

night of August 5th.

Lorenzana was in the bathroom when he heard the knock on the

door. He testified that the police came in with guns pointed at him. The police

then put him in handcuffs. Lorenzana asked what this was all about, and the officer

advised that they had a warrant for his arrest. The police took Lorenzana to the

hallway where they searched him. Lorenzana denied having drugs on his person

when he was patted down. He testified that he just had money and a cell phone.

He was not in the room when they searched the toilet tank.

At the conclusion of the hearing, the trial court denied Lorenzana’s

motion to suppress. The court found that the hotel made the decision to not renew

Lorenzana’s stay and then contacted the police for a civil assist. The police learned

of the active warrants and arrived at the hotel after 11:00 a.m. The court did not

believe that the hotel renewed Lorenzana’s stay on August 5th, and the last charge

by the hotel on August 5th was the penalty assessment. The court laid out its

thought process for the record, stating:

It’s after 11:00. He no longer has the expectation [to be able to renew his room after 11:00 a.m.] He is getting arrested, and I do believe that the hotel at that point in time can give the police the ability to search the room.

Whether or not it’s best practices or not, I think if the hotel consents for them to rip out the carpeting, et cetera, they’re able to do that[.]

(Tr. 234-235.)

The matter then proceeded to a jury trial.

At trial, the State presented the testimony of the same witnesses at

the suppression hearing. The trial testimony from these witnesses is relatively

consistent to the testimony at the suppression hearing and for the sake of brevity

is incorporated herein. Additional relevant evidence that was presented at trial is

indicated below.

Officer Butcher testified Bratz gave him consent to search room 615

and he discovered a bag of pills in the toilet tank. The pills he discovered were not

all the same size and were not found in the same location. The police seized $987

in cash, which the defense stipulated to. Officers also found Ziploc bags and

separate baggies of pills. Officer Butcher collected two cell phones and gave them

to the Lorain police. The female was arrested but not charged.

North Olmsted Police Detective Manny Roman (“Det. Roman”)

testified that he was one of the officers at the Radisson when the room was searched.

Det. Roman reviewed some of the contents of the phone extraction completed by the

Lorain police. He identified three photos from the pictures on Lorenzana’s phone.

One photo was of blue round pills dated June 25, 2021, at 8:47 p.m. Det. Roman

testified that these pills were similar to the M30 pills recovered in the toilet tank on August 5th. According to Det. Roman, “M30 is a marking on the pill that would

stand for oxycodone” and is “laced and pressed with fentanyl and/or heroin, or a

combination of both.” (Tr. 521.) Another photo was an image of cocaine in plastic

wrapping dated June 30, 2021, at 12:24 p.m. The last photo, dated July 22, 2021, at

9:10 p.m., was another image of blue pills and a “zanie bar.” (Tr. 521.)

Det. Roman further testified that in his training and experience, a

large amount of pills, like the 940 pills located in the toilet tank, is an indicator of

trafficking. Additionally, Det. Roman noted that the recovery of plastic bags or “tie

bags” is also an indicator of trafficking. (Tr. 523.) Based on previous controlled buys

performed by North Olmsted police department, Det. Roman testified that the pills

would probably be worth between $10 and $30 per pill — “almost $10,000 worth[.]”

(Tr. 524.) The drugs were sent to the lab for testing, and the lab results revealed that

the pills in the toilet tank were fentanyl and the powder was cocaine.

Edgar Andrus (“Andrus”) of the Cuyahoga County Regional Forensic

Science Laboratory testified as an expert in drug chemistry. He tested the items

submitted and issued a report with his findings. One bag that was submitted to him

contained 940 blue pills marked “M30” and was identified as Item 001.01 in his

report. As part of his testing, he visually inspects the pills to make sure they were

the same shape, color, and size and had the same markings. He then took one tablet

at random and tested it in their gas chromatography-mass spectrometry

instrument. His testing determined that the blue pill was fentanyl and 4-ANPP.

Andrus further testified that the pills were marked “M30,” which would mean the pills contain 30 milligrams of oxycodone hydrochloride. However, Andrus stated

that he receives substances with an “M30” marking and about 90-95 percent of the

time, these pills do not contain oxycodone.

Andrus also tested item 001.02, which he determined was 2.26 grams

of cocaine hydrochloride; item 002.01, which consisted of a baggie with 15 round

blue tablets labeled M30 and was determined to be fentanyl and 4-ANPP;

item 002.02, which was 3 round blue tablets marked M30 with one tablet tested as

fluorofentanyl, fentanyl, 4-ANPP, and Tramadol; item 002.03, which consisted of

blue gray small particles and tested positive for fluorofentanyl, cocaine, fentanyl, 4-

ANPP and Tramadol; item 002.04 was one round off-white pill that was marked

with a playboy bunny and tested as .48 grams of caffeine. In total, the fentanyl pills

recovered weighed 106 grams.

Andrus explained he would only select one pill from its grouping as a

random sample for testing if his visual inspection indicated that they were all of

similar color and had the same markings. Andrus then explained hypergeometric

testing, which is another form of statistical analysis used for testing large groups of

samples. This method of testing requires that he visually inspect the sample to

make sure that they appear to be the same and input the number of pills received

and then the computer program would indicate how many samples need to be

tested to be able to extrapolate results to the entire population.

When asked on cross-examination what would distinguish ten loose

pills from ten small baggies, Andrus replied, “[I]t goes back to that homogenous population; that they are in the same bag and we are assuming that they came from

the same source, whereas if they’re packaged separately, they could have been

packaged separately at any point in time.” (Tr. 580.) With regard to the 940 blue

M30 pills, Andrus testified that he only tested one of the tablets because they were

all in the same bag. Andrus could say with complete confidence that the remaining

939 pills were that same drug. Whereas, if his testing of that one pill revealed that

it did not contain a controlled substance, he would test another pill because he would

lack the confidence that the 939 are similarly not a controlled substance. Andrus

further testified that there was no statement in his report regarding the confidence

level, which is a metric used with hypergeometric testing, that the 940 pills weighed

104.04 grams of fentanyl. As a result, Andrus could not know the degree to which

he had confidence that the 940 pills contained 104.04 grams of fentanyl.

In closing arguments, defense counsel told the jury to find Lorenzana

guilty of Counts 3, 4, and 5 because there was “no question” the State met their

burden. Defense counsel then urged the jury to find Lorenzana not guilty of Counts 1

and 2 because the State did not meet its burden to establish that there was 104

grams of fentanyl in the bag. The State, in its final close, stated to the jury that

because defense counsel conceded guilt on Count 5, the defense implicitly admitted

that Lorenzana trafficked drugs under Count 1.

Following the conclusion of trial, the jury found Lorenzana guilty of

all counts and the specifications. In its nunc pro tunc sentencing entry, Counts 1

and 2 merged and the State elected to proceed with sentencing on Count 1 for which the court imposed a mandatory maximum sentence of 11 to 16.5 years. The

court imposed a 12 month sentence on each of Counts 3 and 5 and ordered them

to be served concurrently with each other and to the 180-day sentence on Count 4.

The court ordered the sentences on Counts 1 and 3 to be served consecutively for a

total sentence of 12 to 17.5 years in prison. Lorenzana was advised of a mandatory

minimum period of 2 years to a maximum of 5 years of postrelease control. The

court awarded 374 days of jail-time credit, assessed costs and fees, and imposed a

mandatory fine $10,000. In the same entry, the court later indicated that it found

Lorenzana indigent and waived the fine.

Lorenzana now appeals, raising the following six assignments of error

for review:

Assignment of Error I: The trial court erred by denying [Lorenzana’s] motion to suppress in violation of the Fourth and Fourteenth Amendment to the United States Constitution and Art. I, § 14 of the Ohio Constitution.

Assignment of Error II: [Lorenzana] was deprived of effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, §10 to the Ohio Constitution.

Assignment of Error III: The trial court erred when it denied [Lorenzana’s] motion to exclude evidence and for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.

Assignment of Error IV: [Lorenzana’s] convictions are against the manifest weight of the evidence.

Assignment of Error V: [Lorenzana’s] constitutional rights were violated when the charges were not dismissed when he was not afforded a speedy trial. Assignment of Error VI: [Lorenzana’s] sentence is contrary to law because the record does not support the imposition of consecutives sentences, [Lorenzana] was not provided an opportunity for allocution, the indefinite sentence was not properly imposed, and the waiver of the mandatory fine was not clearly reflected in the sentencing entry.

II. Law and Analysis

A. Motion to Suppress

1. Standard of Review

Appellate review of a motion to suppress presents a mixed question

of law and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8. “When considering a

motion to suppress, the trial court assumes the role of trier of fact and is therefore

in the best position to resolve factual questions and evaluate the credibility of

witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357 (1992). On appeal, we “must

accept the trial court’s findings of fact if they are supported by competent, credible

evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982). Accepting these facts

as true, we must then “independently determine as a matter of law, without

deference to the trial court’s conclusion, whether the facts satisfy the applicable legal

standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

“However, we review de novo the application of the law to these facts.” State v.

Belton, 2016-Ohio-1581, ¶ 100, citing Burnside at ¶ 8.

2. Entry Into the Hotel Room

Lorenzana argues that the trial court erred by denying his motion to

suppress because he had an expectation of privacy in his room since the Radisson

allowed him to extend his stay after the checkout time throughout the entire length of his stay; he did not abandon his room; and, on August 5, 2021, the hotel took no

steps to notify him of its intention not to renew his stay. As a result, he contends his

Fourth Amendment rights were violated by the officers’ warrantless search of his

hotel room.1

In support of his argument, he relies on State v. Wright, 2013-Ohio-

4473 (8th Dist.), for its proposition that without any affirmative act on the part of

the hotel to divest Lorenzana of his status as an occupant, his privacy interest in his

hotel room protected him against the officers’ warrantless search of his hotel room.

In Wright, police officers were called to the Airport Plaza Hotel on Brookpark Road.

When the officers arrived, they observed Wright, who was naked, sweating profusely

foaming at the mouth. Wright knocked off an exit sign and a portion of the in-house

sprinkler system and ripped wires down, wrapping them around his neck. Hotel

personnel informed the officers that Wright had been pounding on hotel room doors

and disturbing other hotel guests. Wright admitted to the police that he had taken

PCP. Wright was transported to the hospital where he was treated and ultimately

arrested. After Wright was removed from the hotel, hotel staff asked the officers to

check his room for damages. An employee of the hotel opened Wright’s room and

allowed the police inside. The officers did not have a warrant or Wright’s permission

to enter the room. Wright’s room was in disarray, and the police found a bag of

1 The Fourth Amendment protection against warrantless, nonconsensual entry

into a suspect’s home also extends to hotel rooms. Hoffa v. United States, 385 U.S. 293, 301 (1966), citing United States v. Jeffers, 342 U.S. 48 (1951) (“A hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office.”). suspected crack cocaine and a vial of suspected PCP in an open drawer in the

dresser. Wright filed a motion to suppress all evidence obtained during the

warrantless search of his hotel room. Id. at ¶ 2-4 The trial court granted Wright’s

motion, finding that the

search occurred prior to check-out, Defendant did not voluntarily abandon the hotel room, and the hotel staff did not make any affirmative steps to evict Defendant. Thus, Defendant did not relinquish his expectation of privacy in the hotel room for the duration of his reservation.

Id. at ¶ 4.

The State appealed, arguing that “Wright’s disorderly behavior

terminated his status as a guest and thereby extinguished any legitimate privacy

interest in the hotel room and that the hotel staff properly provided the officers with

the consent to search the hotel room.” Id. at ¶ 8. We found that Wright’s privacy

interest in his hotel room protected him against the warrantless search of his hotel

room by the police officers because there was no evidence of any affirmative acts by

the hotel staff to divest Wright of his status as an occupant and guest of the hotel.

Id. at ¶ 11-12. The staff did not lock Wright out of his room, nor did the hotel staff

tell Wright that he was evicted from the hotel or the police officers that they had

evicted Wright from his room. Id.

Wright, however, is distinguishable from the instant case. In Wright,

there was no warrant, nor any evidence of any affirmative acts on the part of the

hotel staff to divest Wright of his status as the occupant of the hotel room or the

police’s knowledge that the hotel staff evicted Wright from the room. Whereas, in the instant case, there is evidence of the hotel’s affirmative acts to evict Lorenzana;

the police had knowledge that Lorenzana was evicted; Lorenzana had three active

warrants for his arrest; and the police had a reasonable belief that he was in the hotel

room.

The fact that Lorenzana had warrants for his arrest and the police had

a reasonable belief that he was in the hotel room provided the officers with the

authority to enter the hotel room to effectuate an arrest warrant. State v. Chavez,

2018-Ohio-4351, ¶ 23 (2d Dist.) (Police may enter a hotel room if they have a

reasonable belief that the person named in the arrest warrant is the registered tenant

and that the person is present inside the room.); Payton v. New York, 445 U.S. 573,

603 (1980) (An arrest warrant based on probable cause provides limited authority

to enter the arrestee’s dwelling to make an arrest when there is reason to believe the

suspect is within.). “Reasonable belief is established by looking at common sense

factors and evaluating the totality of the circumstances.” (Citations omitted.)

United States v. Pruitt, 458 F.3d 477, 482 (6th Cir.2006). “[A] reasonable belief is

something less than probable cause.” State v. Cooks, 2017-Ohio-218, ¶ 11 (2d Dist.),

citing Pruitt at 482-485. “Therefore, police officers do not need probable cause to

enter a residence to execute an arrest warrant provided they have a reasonable

belief, founded in common sense and based on the totality of the circumstances, that

the suspect resides in the home and that he is present at the time.” Id., citing Barrett

v. Commonwealth, 470 S.W.3d 337, 343 (Ky S.Ct.2015). Under the totality of the circumstances in this case, the officers had a

reasonable belief that Lorenzana, the subject of the arrest warrant, was inside room

615 on August 5th. Bratz, one of the hotel managers at the Radisson, called Officer

Butcher and requested assistance with evicting Lorenzana from room 615. Officer

Butcher corroborated that Bratz needed assistance with evicting a guest. He ran

Lorenzana’s name through a database and determined that he had three active

arrest warrants. Officer Butcher then contacted the Lorain police department and

confirmed they wanted Lorenzana taken into custody for his warrants. Officer

Butcher and five other officers arrived at room 615 at approximately 11:32 a.m.,

which was approximately 30 minutes after the checkout time. The officers heard a

male and female voice coming from room 615 prior to their entry. Because the

officers had an arrest warrant for Lorenzana and a reasonable belief that he was the

tenant present inside of the hotel room, the officers were constitutionally permitted

to enter the room to effectuate Lorenzana’s arrest. Once Lorenzana was arrested

and removed from the room, he no longer had an expectation of privacy in the room.

Bratz testified that the Radisson had not renewed Lorenzana’s rental of the room.

Further, she sought police assistance to evict him. As such, once Lorenzana was

arrested and removed from the room, he no longer had an expectation of privacy in

the room and Bratz, as the manager of the Radisson, could give consent to the police

to search the room.

Therefore, based on the foregoing, Lorenzana’s Fourth Amendment

rights were not violated. We find the trial court’s conclusions to be supported by competent, credible evidence and agree that Lorenzana’s motion to suppress should

have been denied.

Accordingly, the first assignment of error is overruled.

B. Ineffective Assistance of Counsel

In the second assignment of error, Lorenzana argues defense counsel

was ineffective for (1) failing to object to the admission of photographs from his cell

phone (exhibit Nos. 45-48); conceding that Lorenzana was guilty of Counts 3, 4, and

5 because there was “no question” the State met its burden; and (3) failing to

subpoena hotel records that would have corroborated Lorenzana’s Cash App records

establishing that he paid to extend his stay on August 5, 2021.

To establish ineffective assistance of counsel, Lorenzana must

demonstrate that (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial. State v.

Trimble, 2009-Ohio-2961, ¶ 98, citing Strickland v. Washington, 466 U.S. 668, 687,

(1984). The failure to prove either prong of this two-part test makes it unnecessary

for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389,

(2000), citing Strickland at 697.

1. Cell Phone Pictures

The State introduced pictures from Lorenzana’s cell phone (exhibit

Nos. 45-48) through the testimony of Det. Roman. The images are dated June and

July 2021 and were described as pictures of blue round pills, cocaine in plastic

wrapping, and blue pills and a zanie bar. Lorenzana contends this evidence was irrelevant and prejudicial and was improperly considered by the jury as proof that

Lorenzana was advertising the images for sale. Defense counsel’s failure to object

to the admission of exhibit Nos. 45-48, however, does not amount to ineffective

assistance of counsel. It cannot be said that the admission of these pictures

prejudiced Lorenzana so as to deprive him of a fair trial. The jury had other,

sufficient evidence to connect him to the drugs in the toilet tank and that he was

involved in drug trafficking.

2. Closing Argument

The State, in its final close, told the jury that because defense counsel

conceded guilt on Count 5, the defense admitted Lorenzana was trafficking pursuant

to Count 1. Lorenzana contends that there can be no strategic reason for defense

counsel to relieve the State of its burden of proof and to invite the jury to convict him

of any charges. We disagree.

In closing arguments, defense counsel stated to the jury, “When I

came in here, for opening . . . I said this is not something that we are completely

innocent here. That’s not my job; to blow smoke and try and fool you or have some

sort of deception, and that’s not what I’m about.” (Tr. 642.) Defense counsel then

conceded that the State met its burden in relation to Counts 3-5. With regards to

Counts 1 and 2, defense counsel stated that the State did not meet its burden

“because there is no way that the government can . . . establish that there was 104-

grams of fentanyl[.]” The foregoing demonstrates that defense counsel was attempting to

gain the jury’s credibility with this concession while attacking the drug testing

procedure as it pertains to Counts 1 and 2, which are first-degree felonies. While it

may not be best practice to concede the lesser counts, in this case, it is clear that

defense counsel did so in an attempt to focus the jury on Counts 1 and 2 and establish

credibility. It cannot be said that defense counsel’s concession in closing argument

deprived Lorenzana of a fair trial.

3. Hotel Records

Lastly, Lorenzana argues that defense counsel’s failure to subpoena

bank records from the Radisson amounts to ineffective assistance of counsel

because there would have been further evidence proving that his August 5th

payment extended his stay. According to Lorenzana, if defense counsel had

subpoenaed the records, then the court would not have accepted Bratz’s self-serving

and speculative testimony that the charge must have been a penalty and would have

granted his motion to suppress.

Bratz testified Lorenzana was charged a penalty in the amount of the

room fee for August 5th and not as a payment that authorized his stay because he

was evicted from a room, the hotel needed to clean the room, and the hotel did not

have the opportunity to rent the room to a different tenant. Any bank records that

would have been obtained would have shown, just as the Cash App records alleged,

that he was charged the exact amount as he was previously charged for one night’s

stay, which Bratz confirmed was the same amount as the penalty charge. Therefore, the testimony would not likely have been different if the records were obtained and,

as a result, Lorenzana cannot demonstrate prejudice.

The second assignment of error is overruled.

C. Sufficiency of the Evidence

In the third assignment of error, Lorenzana argues the trial court

erred when it denied his Crim.R. 29(A) motion because the State failed to establish

the drug weight required to sustain his convictions.

We note that “[a] motion for acquittal under Crim.R. 29(A) is

governed by the same standard as the one for determining whether a verdict is

supported by sufficient evidence.” State v. Tenace, 2006-Ohio-2417, ¶ 37, citing

State v. Carter, 72 Ohio St.3d 545, 553 (1995); State v. Thompkins, 78 Ohio St.3d

380, 386 (1997). The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 2009-Ohio-

3598, ¶ 12 (8th Dist.). An appellate court’s function when reviewing sufficiency is to

determine “‘whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.’” State v. Leonard, 2004-Ohio-6235, ¶

77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

With a sufficiency inquiry, an appellate court does not review whether

the State’s evidence is to be believed but whether, if believed, the evidence admitted

at trial supported the conviction. State v. Starks, 2009-Ohio-3375, ¶ 25 (8th Dist.), citing Thompkins at 387. A sufficiency of the evidence argument is not a factual

determination, but a question of law. Thompkins at 386.

In State v. Jones, 2021-Ohio-3311, the Ohio Supreme Court

cautioned:

But it is worth remembering what is not part of the court’s role when conducting a sufficiency review. It falls to the trier of fact to ‘“resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” [State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶ 24], quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, an appellate court’s role is limited. It does not ask whether the evidence should be believed or assess the evidence’s “credibility or effect in inducing belief.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13, citing Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. Instead, it asks whether the evidence against a defendant, if believed, supports the conviction. Thompkins at 390 (Cook, J., concurring).

Id. at ¶ 16.

Lorenzana argues that Andrus failed to conduct the type of testing

that would establish the alleged weight of the substances because he could not make

that inference within a reasonable degree of scientific certainty regarding the 939

untested pills. Lorenzana, relying on a different Wright case, State v. Wright, 2017-

Ohio-9041 (4th Dist.), contends that this concession should have resulted in the

exclusion of the untested pills and an acquittal of the charges.

In Wright, the evidence consisted of “a prescription bottle of 98 pills

marked ‘A214’ and a plastic bag containing 95 pills with five different markings:

(1) 63 pills marked ‘M30’; (2) 21 pills marked ‘A215’; (3) 1 pill marked ‘224’; (4) 7

pills marked ‘K8’; (5) 3 pills marked ‘A214.’” Id. at ¶ 6. The forensic scientist testified that he tested six pills in total, one pill from each differently marked group.

Each of the six pills he tested contained oxycodone. After testing one of each marked

group of the 95 pills and finding it contained oxycodone, the forensic scientist

testified that it would be reasonable to infer that the remaining pills in the group

also contained oxycodone. However, the forensic scientist “did not testify that he

personally made this inference or that he made this inference with a reasonable

degree of scientific certainty[.]” Id. He testified that “his sample population was

insufficient for him to draw inferences about the substance of the remaining pills

with a reasonable degree of scientific certainty.” Id. at ¶ 11.

Wright moved to exclude the pills from evidence based on the forensic

scientist’s inability to testify about the content of the remaining pills with a

reasonable degree of scientific certainty and moved for a dismissal under

Crim.R. 29, arguing that the State has not met the prima facie elements of the case.

Id. at ¶ 14-15. The trial court denied Wright’s motions, and the jury found him guilty

of all counts — complicity to aggravated trafficking; trafficking, and drug possession.

Id. at ¶ 15.

On appeal, the Fourth District stated that the “hypergeometric” or

“random sampling method” is an accepted method of testing and found that the

remaining, untested pills should have been excluded because the forensic scientist

testified that he did not use the hypergeometric or random sampling method and he

could not identify the content of the remaining pill population within a reasonable

degree of scientific certainty. Id. at ¶ 31. The court held, “Because the state’s expert witness could not identify the substance of the remaining pills with a reasonable

degree of scientific certainty, the trial court should have excluded them from

evidence.” Id. at ¶ 41.

We find Wright distinguishable. In the instant case, Andrus (the

State’s expert) testified that he used a different type of random sampling, not the

hypergeometric test method, and he could say with complete confidence that the

balance of the 939 pills are that same drug after he determined that the one pill he

selected was fentanyl. Andrus described his random testing method. It consisted of

him removing the 940 pills from the one bag and the 15 pills from the other bag,

visually inspecting them and deciding, based on his training and experience, that

they were uniform in shape, color, size, and markings and then selecting a random

sample for testing. Specifically, he testified that the 940 pills were found in a single

plastic bag, were all blue in color, and had a marking of “M30” and the 15 pills were

in a separate bag, were all blue in color, and also had a marking of “M30.” Andrus

determined that the bag of 940 pills and the bag of 15 pills all had similar

characteristics but separated them for testing based on the fact that they were

located at two different locations and were contained within separate containers.

Both the bag of 15 pills and the bag of 940 pills were determined to each be a separate

homogenous population. After testing one pill from the 940 pills contained in the

first bag, Andrus determined that the pill contained fentanyl. Andrus also tested

one pill from the bag of 15, and it contained fentanyl as well. Andrus testified on

cross-examination that he could say with complete confidence that the balance of the 939 pills are that same drug after he determined the one pill he selected was

fentanyl. (Tr. 586.)2

In State v. Martin, 2007-Ohio-6062 (8th Dist.), this court recognized

that the “random sampling method of testing has been consistently upheld by Ohio

courts” and held that “evidence of the random sampling method is sufficient as a

matter of law to support a determination that the entire substance recovered

together and similarly packaged is the same controlled substance as that tested.” Id.

at ¶ 42, citing In re Lemons, 77 Ohio App.3d 691 (8th Dist. 1991), State v. Rose,

2001-Ohio-3297 (7th Dist.); State v. Mattox, 13 Ohio App.3d 52 (2d Dist. 1983);

State v. Smith 1997 Ohio App. LEXIS 6020 (10th Dist. Dec. 23, 1997); State v. Smith,

1990 Ohio App. LEXIS 4359 (8th Dist. Oct. 4, 1990); see also State v. Mitchell, 2010-

Ohio-520 (where this court upheld the random sampling method as applied to 31

rocks of cocaine). “The ‘random sampling method of testing creates a reasonable

inference that all similar contraband contains the same controlled substance as that

tested, at least when the contraband is recovered together and similarly packaged.’”

Id., quoting State v. Samatar, 2003-Ohio-1639 (10th Dist.).

Based the previous holdings of our court, we find that Andrus’s

testimony regarding the random sampling method he employed is sufficient to

2 While Andrus stated that he would not consume a pill from a population where

the only pill tested contained compressed sugar, this does not mean that Andrus contradicted himself as Lorenzana contends. When taken in context of his entire testimony, it is reasonable to infer that Andrus would not consume the untested pills in this hypothetical because his testimony revealed that some of the pills are mislabeled and more often than not, the pills contain a controlled substance. support his determination that the entire substances recovered together and

similarly packaged are the same controlled substance as that tested. As a result, the

State met its burden of persuasion regarding the weight of the pills.

Therefore, the third assignment of error is overruled.

D. Manifest Weight of the Evidence

In the fourth assignment of error, Lorenzana argues that his

convictions are against the manifest weight of the evidence.

When reviewing a manifest weight challenge, an appellate court

“‘weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.”’ State v. Virostek, 2022-Ohio-

1397, ¶ 54 (8th Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.

1983). A reversal on the basis that a verdict is against the manifest weight of the

evidence is granted “‘only in the exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387 (1997), quoting

Martin at 175.

As this court has previously stated:

The criminal manifest weight-of-the-evidence standard addresses the evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541 (1997). Under the manifest weight-of-the- evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive — the state’s or the defendant’s? Wilson at id. Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95, 2000-Ohio-276, 723 N.E.2d 1054 (2000).

When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder’s resolution of the conflicting testimony. Wilson at id., quoting Thompkins at id.

State v. Williams, 2020-Ohio-269, ¶ 86-87 (8th Dist.).

Lorenzana contends that the same reasons that support dismissal of

his convictions also support a finding that his convictions are against the manifest

weight of the evidence. Additionally, he argues the jury lost its way because the

female guest was not charged, Officer Butcher did not document by photograph

where he found the drugs or how they were found, and there was no body camera

footage of the incident. While Lorenzana attacks the quality of this evidence, he does

not demonstrate how the jury clearly lost its way and created such a manifest

miscarriage of justice.

The fact that the female guest was not charged has no bearing on

whether the jury clearly lost their way. In addition, the fact a picture of the drugs in

the toilet tank was lacking does not equate to the jury losing its way because Officer

Butcher testified that he discovered the bag of drugs in the toilet tank and took them

out before taking a picture of them. Furthermore, the fact that there were no body

cameras worn on the day of the incident does not demonstrate that the jury clearly

lost its way because the officers testified that they found drugs on Lorenzana’s

person and in the toilet tank, $987 in cash, two cell phones, Ziploc bags, and separate baggies of pills. Thus, when all the evidence is weighed, we cannot say the

jury clearly lost its way and created such a manifest miscarriage of justice that

Lorenzana’s convictions must be reversed and a new trial ordered.

Therefore, the fourth assignment of error is overruled.

E. Speedy Trial

In his fifth assignment of error, Lorenzana argues that he did not

receive a speedy trial under R.C. 2475.71 and that his rights to a speedy trial under

the Ohio and United States Constitutions were violated.

The Sixth and Fourteenth Amendments to the United States

Constitution guarantee a criminal defendant a speedy trial by the State. State v.

Ladd, 56 Ohio St.2d 197, 200 (1978). Additionally, Ohio Const. art. I, § 10 provides

that all criminal defendants have a right to a speedy trial. The constitutions do not

specify any timeline required to ensure the protection of this right.

1. Plain Error

Initially, we note that Lorenzana failed to raise any speedy trial issue

at the trial court. In failing to do so, Lorenzana has waived his right to raise a

statutory speedy trial violation on appeal. State v. King, 2009-Ohio-4551, ¶ 10 (8th

Dist.), citing State v. Ennist, 2008-Ohio-5100 (8th Dist.).3 “That being said, the

Ohio Supreme Court has held that a defendant who enters a guilty plea does not

waive her constitutional right to a speedy trial.” Id., citing State v. Branch, 9 Ohio

3 In King, the defendant pled guilty at the trial court and then raised a speedy trial

issue for the first time on appeal. While King was decided under the context of a guilty plea, we still find its speedy trial analysis applicable to the instant case. App.3d 160, 162 (8th Dist. 1983), citing State v. Pachay, 64 Ohio St.2d 218 (1980).

Therefore, we will review for plain error whether Lorenzana’s constitutional rights

to a speedy trial were violated. Id. at ¶ 10.

Plain error is an obvious error or defect in the trial court proceedings

that affects a defendant’s substantial right and the outcome of the trial.

Crim.R. 52(B); State v. Rogers, 2015-Ohio-2459, ¶ 22. The Ohio Supreme Court,

however, has admonished appellate courts to “notice plain error ‘with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27 (2002), quoting State

v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

2. Constitutional Rights

The United State Supreme Court set forth the test for a violation of a

defendant’s constitutional right to a speedy trial in Barker v. Wingo, 407 U.S. 514

(1972). The Barker Court held that the test includes considering (1) the length of

the delay; (2) the reason for the delay; (3) the defendant’s assertion of their right to

a speedy trial; and (4) the prejudice to the defendant. Id. at 530-32; see also State

v. Triplett, 78 Ohio St.3d 566, 568 (1997). The length of the delay is the “triggering

mechanism” that determines the necessity of inquiry into the other factors. Barker

at 530. Until there is some delay that is presumptively prejudicial, “there is no

necessity for inquiry into the other factors that go into the balance.” Id. With regard to Lorenzana’s constitutional speedy trial rights, he

contends that his were violated when approximately 635 days elapsed before he was

brought to trial, which he maintains was the result of undue delay.

a. Length of Delay

The length of delay is a “triggering mechanism” that determines the

necessity of inquiry into the other factors. Id. at 530. In Doggett v. United States,

505 U.S. 647, 652 (1992), the United States Supreme Court has noted that this factor

involves a dual inquiry. First, a threshold determination is made as to whether the

delay was “presumptively prejudicial,” triggering the Barker inquiry. Second, the

length of the delay is again considered and balanced against the other factors. Brook

Park v. Ruzicka, 2008-Ohio-44, ¶ 24 (8th Dist.), citing State v. Smith, 2003-Ohio-

3524 (8th Dist.). One year is generally considered enough to trigger a review.

Triplett at 568, citing Doggett at 652.

In this case, Lorenzana was arrested on August 5, 2021, and indicted

on September 8, 2021. He was released on bond on September 11, 2021. A review

of the docket reveals that several pretrials were continued at Lorenzana’s request

and due to the COVID outbreak. Lorenzana failed to appear for a pretrial on

November 4, 2021, a capias was issued, and he was taken into custody on

January 22, 2022. Then several pretrial were continued at Lorenzana’s request until

March 7, 2022. On March 14, 2022, Lorenzana’s initial defense counsel filed a

motion to suppress, and the March 2022 trial date was continued by a joint request

of the parties. On March 30, 2022, Lorenzana’s subsequent defense counsel filed a notice of appearance. Defense counsel then filed a demand for discovery in April

2022. The State responded to this discovery demand and sent a reciprocal demand

for discovery. Lorenzana never responded to this demand, and second defense

counsel’s representation ended in October 2022.

Lorenzana was then re-released on bond. A subsequent trial date was

set for November 2022. This date was continued based on the lack of representation

because Lorenzana was in the process of retaining new counsel. Lorenzana

continued to request continuances for all pretrials from November 2022-December

2022, and on December 6, 2022, a capias was issued. Lorenzana was taken into

custody on December 7, 2022. Lorenzana requested continuances to obtain new

counsel from December 2022 until January 2023.

Lorenzana was assigned a third defense attorney on January 3, 2023.

Again all pretrials and trials from January 2023-April 2023 were continued at

Lorenzana’s request. Trial was set for April 5, 2023, but was continued because the

trial court was unavailable due to being engaged in another matter. The trial was

rescheduled for April 11, 2023, but was continued at Lorenzana’s request because

defense counsel was engaged in an unrelated matter. The court held the suppression

hearing on May 1, 2023, and trial began on May 2, 2023.

While the 21-month delay is significant, we find that it did not infringe

on Lorenzana’s liberty. The interests that the Sixth Amendment was designed to

protect — freedom from extended pretrial incarceration and from the disruption

caused by unresolved charges — were not at issue since the foregoing demonstrates that Lorenzana contributed to the majority of the delay. Therefore, while the first

factor does technically weigh in Lorenzana’s favor, its weight is negligible.

b. Reasons for Delay

When determining if the reason for the delay should weigh in favor of

the accused or the State, this factor should weigh heavily against the accused if the

accused caused or contributed to the delay. State v. Smith, 2003-Ohio-3524, ¶ 14

(8th Dist.); State v. Robinson, 2017-Ohio-6895 (8th Dist.) As discussed above, the

record demonstrates that Lorenzana contributed to the delay. Thus, this factor

weighs in favor of the State.

c. Assertion of Right to a Speedy Trial

An accused’s assertion of, or failure to assert, their right to a speedy

trial is a factor to be considered in determining whether their constitutional rights

were violated. Barker, 407 U.S. at 528; Triplett, 78 Ohio St.3d at 570. Here,

Lorenzana failed to timely assert his speedy trial right. We therefore weigh this

factor in favor of the State.

d. Prejudice to the Defendant

In Barker, the United States Supreme Court identified three interests

that the speedy-trial right is designed to protect: (1) oppressive pretrial

incarceration; (2) the anxiety and concern of the accused; and (3) the possibility that

the accused’s defense will be impaired. Id. at 532. “Of these, the most serious is the

last, because the inability of a defendant adequately to prepare his case skews the

fairness of the entire system.” Id. Lorenzana has failed to establish that he was prejudiced by the delay.

He only asserts that there was undue delay, he does not assert any of the above-

factors. And, most importantly, he does not assert that this delay prevented him

from mounting a defense. The absence of prejudice weighs heavily against

Lorenzana.

Based on the foregoing, we find that the Barker factors weigh more

heavily in favor of the State. Therefore, Lorenzana cannot demonstrate plain error

and the fifth assignment of error is overruled.

F. Sentence

In the sixth assignment of error, Lorenzana challenges the

consecutive nature of his sentence; the imposition of indefinite time; the lack of

allocution; and the mandatory fine.

Under R.C. 2953.08(G)(2), an appellate court may increase, reduce

or otherwise modify a sentence or vacate a sentence and remand for resentencing if

it “clearly and convincingly” finds that (1) the record does not support the sentencing

court’s findings or (2) the sentence is “otherwise contrary to law.” State v. Marcum,

2016-Ohio-1002, ¶ 21.4

4 We note that in State v. Gwynne, 2023-Ohio-3851 (“Gwynne V”), the Supreme

Court of Ohio reconsidered and vacated its decision in State v. Gwynne, 2022-Ohio-4607 (“Gwynne IV”). Therefore, we follow the pre-Gwynne IV deferential standard of review applied to appellate review of consecutive-sentence findings. See State v. Neal, 2023- Ohio-4414, ¶ 7, fn. 1 (8th Dist.), citing State v. Scott, 2022-Ohio-1486, ¶ 9 (8th Dist.) (recognizing the deferential nature of the appellate standard of review for consecutive- 2. Consecutive Sentence and Imposition of Indefinite Time

R.C. 2929.14(C)(4) provides that in order to impose consecutive

sentences, the court must find 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.” The court also must make at least

one of the findings set forth under R.C. 2929.14(C)(4)(a)-(c).

We note that “[w]hen imposing consecutive sentences, a trial court

must state the required findings as part of the sentencing hearing” and “incorporate

its statutory findings into the sentencing entry.” State v. Bonnell, 2014-Ohio-3177,

¶ 29. The trial court is not required to recite verbatim the statutory language;

however, we must be able to glean from the record that all of the findings required

by R.C. 2929.14(C) were made by the trial court. Id. at ¶ 36-37.

Here, the trial court sentenced Lorenzana to the mandatory

minimum of 11 years on Count 1. The court then informed Lorenzana that the

indefinite sentence could range up to 16 and half years under Reagan Tokes.

Lorenzana received a total concurrent sentence of one year on Counts 3-5, and the

court ran these counts consecutively to Count 1 for a total of 12 years to 17.5 years in

prison.

sentence findings), citing State v. Venes, 2013-Ohio-1891, ¶ 21 (8th Dist.). We further note that in State v. Hayes, 2023-Ohio-4119 (8th Dist.), this court applied the Gwynne IV de novo standard of review to consecutive-sentence findings, and in State v. Stiver, 2024-Ohio-65, ¶ 20 (8th Dist.), “we expressly refuse[d] to follow Hayes.” Lorenzana contends that the court did not make the required finding

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 the

findings that it did make were not supported in the record. We disagree.

A review of the record reveals that the trial court stated that it had

considered all factors prior to imposing sentence and that

these multiple offenses were committed as part of, or a course of conduct, and the harm caused by two or more of the multiple offenses so committed were so great or unusual that no single prison term for any of these offenses committed as part of the course of conduct would adequately reflect the seriousness of [Lorenzana’s] conduct.

(Tr. 673-674.) The court then acknowledged his pending arrests warrants and found

that Lorenzana’s history demonstrates that consecutive sentences are necessary to

protect the public from future crimes. Therefore, we find that the trial court made

the required findings and properly imposed consecutive sentences.

With regard Reagan Tokes, Lorenzana argues the trial court did not

adequately provide the mandated notifications set forth in R.C. 2929.19(B)(2)(c)(i)-

(v), which requires the trial court to inform an offender at the sentencing hearing

certain notifications about the offender’s indefinite sentence. These notifications

involve the rebuttable presumption regarding the offender’s release from service of

the sentence; how the department of rehabilitation and correction may rebut that

presumption; and the mandatory release of an offender following the expiration of

the maximum prison term imposed. A review of the record however, reveals that the trial court did in fact

inform Lorenzana about his indefinite sentence at the time of sentencing. The court

stated:

Under Reagan Tokes, that will be the mandatory minimum definite sentence. The maximum indefinite sentence will be 16 and a half years.

Mr. Lorenzana, the way that works is you will be released upon the completion of your 11-year sentence, unless the Ohio Department of [Rehabilitation] and [Correction] determines that you should remain in prison for what they consider to be bad conduct or bad time.

If that happens, they’ll flop you back. They’ll give you a new release date and you’ll be released upon the completion of your new release date unless, once again, you are found to have committed more bad conduct, in which case they’ll flop you back and give you a new release date.

That process could happen over and over again until you reach your maximum indefinite sentence of 16 and a half years.

(Tr. 672-673.)

3. Allocution

Lorenzana contends that neither party addressed the court and he

was not given a chance to make any statement regarding sentencing before it was

imposed in violation of Crim.R. 32, which affords counsel an opportunity to speak,

at the time of sentencing, on behalf of the defendant and address the defendant

personally and ask if the defendant wishes to make a statement or present any

information in mitigation of punishment.

Contrary to Lorenzana’s assertion, a review of the transcript reveals

that the parties did address the court. Defense counsel was heard and put forth

mitigation. Additionally, the trial court asked if Lorenzana wanted to be heard, but he made no statement after it was determined that he was going to appeal.

Therefore, Lorenzana’s right to allocution was not violated.

4. Waiver of Mandatory Fine

In the instant case, the sentencing journal entry imposed a mandatory

$10,000.00 fine, but states that “Defendant declared indigent. Fine(s) waived.” A

review of the sentencing transcript is clear that the court intended to waive the

mandatory fine. The court stated: “I will find that you are indigent and waive that

mandatory fine. I will — however, I will order to you pay court costs.” (Tr. 675.)

Because the court speaks through its journal entry and this entry does not reflect the

truth, we must remand the matter to the trial court to correctly reflect that

mandatory the $10,000 fine was waived.

Therefore, the sixth assignment of error is overruled in part and

sustained in part.

Accordingly, judgment is affirmed, and the case is remanded for the

trial court to correct the journal entry to reflect that the mandatory $10,000 fine was

waived.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The appellant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________ MARY J. BOYLE, JUDGE

MICHELLE J. SHEEHAN, P.J., and ANITA LASTER MAYS, J., CONCUR