State v. Maust

2024 Ohio 1394

• Court: Ohio Court of Appeals
• Decided: April 12, 2024
• Docket: 23CA000031
• Status: Published

Opinion

[Cite as State v. Maust, 2024-Ohio-1394.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 23CA000031 ANDREW C. MAUST

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 23CR63

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 12, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON R. FARLEY MICHAEL GROH ASSISTANT PROSECUTOR 1938 East Wheeling Avenue 627 Wheeling Avenue Cambridge, Ohio 43725 Cambridge, Ohio 43725 Guernsey County, Case No. 23CA000031 2

Wise, J.

{¶1} Defendant-Appellant Andrew Cory Maust appeals his sentence on two

counts of Aggravated Trafficking in Drugs, entered in the Guernsey County Court of

Common Pleas following a guilty plea.

{¶2} Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} For purposes of this appeal, the relevant facts and procedural history are

as follows:

{¶4} On March 2 and March 8 of 2023, Guernsey County Law Enforcement

Officers used a confidential informant to buy narcotics from Anthony Hackley. On each

occasion Appellant Andrew Cory Maust was seen supplying the drugs to Hackley, who

then sold them to the confidential informant. On March 8, 2023, both Hackley and the

Appellant were apprehended immediately after the transaction. Appellant admitted to

supplying the drugs. Marked buy-money that had been given to the confidential informant

was also found on Appellant's person when he was arrested.

{¶5} On May 2, 2023, a Guernsey County Grand Jury indicted Appellant Andrew

Cory Maust on one count of Aggravated Possession of Drugs, in violation of R.C. §

2925.11(C)(1)(a), a felony of the fifth degree; one count of Aggravated Trafficking in

Drugs, in violation of R.C. §2925.03(A)(2), a felony of the fourth degree; one count of

Aggravated Possession of Drugs, in violation of R.C. §2925.11(C)(1)(b), a felony of the

third degree; and one count of Aggravated Trafficking in Drugs, in violation of R.C.

§2925.03(C)(1)(c), a felony of the third degree.

{¶6} On May 9, 2023, Appellant entered pleas of not guilty to all offenses. Guernsey County, Case No. 23CA000031 3

{¶7} On September 8, 2023, Appellant withdrew his former pleas of not guilty

and entered a negotiated plea of guilty to Count Two: Aggravated Trafficking in Drugs, in

violation of R.C. §2925.03(A)(2), a felony of the fourth-degree and Count Four:

Aggravated Trafficking in Drugs, in violation of R.C. §2925.03(A)(2), a felony of the third-

degree.

{¶8} On September 8, 2023, the trial court sentenced Appellant to a term of thirty

(30) months imprisonment on Count Four, consecutive to a fifteen (15) month sentence

in Count Two.

{¶9} Appellant now appeals, raising the following assignment of error on appeal:

ASSIGNMENT OF ERROR

{¶10} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES.”

I.

{¶11} In his sole assignment of error, Appellant argues that the trial court erred in

imposing consecutive sentences. We disagree.

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

§2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,

citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. 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, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. Guernsey County, Case No. 23CA000031 4

{¶13} 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.

{¶14} 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 Guernsey County, Case No. 23CA000031 5

words or phrases in order to be considered to have complied. State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, syllabus.

{¶15} In deciding whether to impose consecutive sentencing, the trial court is to

consider the aggregate term of incarceration which will result from consecutive

sentencing. State v. Gwynne, 2022-Ohio-4607, 2022 WL 17870605, ¶¶ 14-15. In

Gwynne, the Ohio Supreme Court clarified the standard of review this Court is to use on

review of consecutive sentences:

It is important to understand that the standards referenced above

have very specific meanings and fall into one of two categories—either a

standard of review or an evidentiary standard of proof. “Abuse of discretion,”

“clearly erroneous,” and “substantial evidence” are traditional forms of

appellate-court deference that are applied to a trial court's decisions. They

are standards of review that are applied by a reviewing court to certain

decisions that are made by a fact-finder. They are, in essence, screens

through which reviewing courts must view the original fact-finder's decision.

In contrast, “preponderance,” “clear and convincing,” and “beyond a

reasonable doubt” are evidentiary standards of proof. These standards

apply to a fact-finder's consideration of the evidence. R.C. §2953.08(G)(2)’s

requirement that appellate courts apply the clear-and-convincing standard

on review indicates that the legislature did not intend for appellate courts to

defer to a trial court's findings but to act as a second fact-finder in reviewing

the trial court's order of consecutive sentences. Guernsey County, Case No. 23CA000031 6

In this role as a finder of fact, the appellate court essentially functions

in the same way as the trial court when imposing consecutive sentences in

the first instance. There are three key differences, however. The first

difference, which is discerned from the language of R.C. §2953.08(G)(2), is

that the appellate court is constrained to considering only the findings in

R.C. §2929.14(C)(4) that the trial court has actually made. In other words,

a reviewing court cannot determine for itself which of the three permissible

findings within R.C. §2929.14(C)(4)(a)-(c) might apply to satisfy the third

required finding for imposing consecutive sentences, as the trial court is

permitted to do. The second difference involves the standard of proof.

Whereas the trial court's standard of proof under R.C. §2929.14(C)(4) is a

preponderance of the evidence—i.e., that when considered as a whole, the

evidence demonstrates that the proposition of fact represented by the

finding is more likely true, or more probable, than not—an appellate court

applies a clear and convincing evidence standard of proof. And the third

difference is the inversion of the ultimate question before the court.

Whereas the trial court is tasked with determining whether the proposition

of fact represented by each finding is more likely—or more probably—true

than not, an appellate court's task is to determine whether it has a firm belief

or conviction that the proposition of fact represented by each finding is not

true on consideration of the evidence in the record.

Thus, when viewed in its proper context, the deference that a trial

court's consecutive-sentence findings receive comes from the language of Guernsey County, Case No. 23CA000031 7

R.C. §2953.08(G)(2), which imposes a higher evidentiary standard to

reverse or modify consecutive sentences. It does not stem from any

statutory requirement that the appellate court defer to the trial court's

findings when considering whether reversal or modification is appropriate

under R.C.§ 2953.08(G)(2).

{¶16} Id. at ¶¶ 20-22.

{¶17} In the instant case, in both the sentencing entry and at the sentencing

hearing, the trial court found consecutive sentences are necessary to protect the public

from future crime or to punish Appellant, and that consecutive sentences are not

disproportionate to the seriousness of Appellant's conduct or to the danger he poses to

the public. (Sent. T. at 43).

{¶18} Appellant argues the trial court's findings are not supported by the record.

Appellant argues he expressed remorse and recognized the harm caused by drugs, that

he successfully completed an intensive outpatient recovery program, that his offense was

not one of violence, that he has a wife, a small child and a support system. (Sent. T. at

35-39).

{¶19} In imposing consecutive sentences, the trial court had before it Appellant’s

current charges involved two separate counts of trafficking in methamphetamine, and that

he had previously been convicted of aggravated possession of drugs and possession of

heroin in 2020, possession of heroin in 2017, and possession of cocaine in 2015. (Sent.

T. at 28, 32, 41-42). Appellant also had prior criminal convictions for vandalism, tampering

in 2017 and theft in 2014. (Sent. T. at 33, 42). The court noted a pattern of drug and

alcohol abuse and that Appellant has failed to respond to sanctions in the past. (Sent. T.

at 42). The court found recidivism was likely in this case. (Sent. T. at 43). The court also Guernsey County, Case No. 23CA000031 8

noted that Appellant’s drug convictions were part of organized criminal activity. (Sent. T.

at 42).

{¶20} We further note that the aggregate sentence imposed by the trial court is

only nine (9) months longer than the maximum sentence the trial court could have

imposed on the third-degree felony charge.

{¶21} Upon review of the record, we are not “left with a firm belief or conviction

that the findings are not supported by the evidence.” See Gwynne, supra at ¶ 27. We find

the trial court did not err in imposing consecutive sentences in the instant case.

{¶22} Appellant’s sole assignment of error is overruled.

{¶23} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Guernsey County, Ohio, affirmed.

By: Wise, J.

Baldwin, P. J., and

Gwin, J., concur.

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