[Cite as State v. McAllister, 2020-Ohio-4492.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2019 CA 00118 : HAZEL MCALLISTER : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, 18 CR 120
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 17, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES WILLIAM T. CRAMER LICKING COUNTY PROSECUTOR 470 Olde Worthington Road, Suite 200 Westerville, OH 43082 PAULA M. SAWYERS 20 S. 2nd St., 4th Floor Newark, OH 43055 Licking County, Case No. 2019 CA 00118 2
Delaney, J.
{¶1} Defendant-Appellant Hazel McAllister appeals the October 31, 2019
sentencing judgment entry of the Licking County Court of Common Pleas. Plaintiff-
Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
Underlying Events
{¶2} On August 17, 2016, troopers with the Ohio State Highway Patrol were
investigating an automobile accident in Licking County, Ohio. During their investigation,
they were approached by a person who observed a woman injecting drugs in the restroom
of a fast food restaurant. The troopers made contact with the woman as she was getting
into her vehicle. The woman was later identified as Defendant-Appellant Hazel McAllister.
{¶3} While speaking with McAllister, the troopers confirmed she was the sole
occupant of the vehicle, she did not have a valid driver’s license, and she was the subject
of an active felony warrant.
{¶4} McAllister was taken into custody and the registered owner of the vehicle
was contacted. The owner advised that McAllister was her cousin and she had loaned
the vehicle to her that morning. The owner consented to a search of the vehicle.
{¶5} During the search of the vehicle, law enforcement personnel located
multiple items: (1) an unsecured and loaded .45 caliber Kimber Warrior handgun on the
front passenger floorboard; (2) two baggies containing marijuana; (3) a piece of tin foil
containing heroin; and (3) two vacuum sealed bags containing 883.8 grams of
methamphetamine. Licking County, Case No. 2019 CA 00118 3
Indictment
{¶6} On May 25, 2017, in Case No. 2017 CR 00497, the Licking County Grand
Jury indicted Defendant-Appellant Hazel McAllister for aggravated possession of drugs,
having a weapon under disability, carrying a concealed weapon, and possession of
heroin. At that time of the indictment, McAllister was incarcerated in Summit County. Case
No. 2017 CR 00497 was dismissed without prejudice on December 15, 2017.
{¶7} On February 21, 2018, the Licking County Grand Jury indicted Defendant-
Appellant Hazel McAllister on four counts in Case No. 2018 CR 00120: (1) aggravated
drug possession (methamphetamine) in an amount that equals or exceeds one hundred
times bulk, a first-degree felony in violation of R.C. 2925.11(A)(C)(1)(e); (2) having
weapons while under disability, a third-degree felony in violation of R.C. 2923.13(A)(2);
(3) carrying concealed weapons, a fourth-degree felony in violation of R.C. 2923.12(A)(2);
and (4) possession of drugs (heroin), a fifth-degree felony in violation of R.C.
2925.11(A)(C)(6)(a). The indictment also included forfeiture specifications for the firearm
under R.C. 2941.1417(A) and 2981.02(A)(3).
Criminal Proceedings
{¶8} McAllister entered a plea of not guilty to the charges and the matter was
scheduled for a jury trial. McAllister was placed on Supervised Pre-Trial Release
Supervision.
{¶9} After her incarceration in Summit County, Allister was incarcerated in the
Dayton Correctional Facility and released on January 13, 2019. After her release, she
was instructed to report to Licking County Adult Court Services. On January 23, 2019, the Licking County, Case No. 2019 CA 00118 4
trial court issued a capias for McAllister’s arrest for her failure to report to ACSD after her
release from the Dayton Correctional Facility.
{¶10} The matter was scheduled for jury trial on March 12, 2019. McAllister failed
to appear. On March 12, 2019, the trial court revoked McAllister’s bond and ordered a
capias for McAllister’s arrest. McAllister was arrested and appeared in court on March 18,
2019. The trial court set McAllister’s bond at $50,000 and ordered electronic monitoring.
The jury trial was rescheduled to April 24, 2019.
{¶11} McAllister failed to appear for the April 24, 2019 jury trial. The trial court
revoked McAllister’s bond and issued a capias for her arrest.
{¶12} McAllister turned herself in and appeared for a bond forfeiture hearing on
May 8, 2019. The trial court set McAllister’s bond at $150,000. The jury trial was continued
to June 18, 2019. Upon the State’s motion, the trial was continued to July 24, 2019.
{¶13} On July 19, 2019, McAllister filed a motion to continue the jury trial and set
the matter for a change of plea and sentencing hearing. The change of plea and
sentencing hearing was scheduled for September 9, 2019.
{¶14} On August 20, 2019, McAllister’s probation officer filed an application for an
order for a capias for her arrest. He stated she could not be located and she had failed to
report to ACSD since July 29, 2019. The trial court ordered a capias issued for her arrest.
{¶15} On September 9, 2019, the matter came on for a change of plea and
sentencing hearing. McAllister failed to appear. The trial court revoked McAllister’s bond
and ordered a capias issued for her arrest.
{¶16} A bond forfeiture hearing was held on September 19, 2019. McAllister
appeared at the hearing. The trial court set McAllister’s bond at $1,000,000. Licking County, Case No. 2019 CA 00118 5
{¶17} The change of plea and sentencing hearing was scheduled for October 30,
2019. At the hearing, counsel for McAllister stated that he met with her at the jail and in
court before the hearing. He stated he understood that McAllister did not wish to enter
into a plea agreement with the State or enter pleas of guilty. (October 30, 2019 Hrg., T.
3). The State responded the plea agreement would drop the major drug offender
accusation related to the aggravated drug possession charge, which would remove the
mandatory maximum prison term of eleven years. The first count would remain a first-
degree felony and the State agreed to defer to the trial court for sentencing. (T. 4). The
State contended the Bill of Particulars and Amended Bill of Particulars contained the
statutory major drug offender language. (T. 5). McAllister also faced mandatory prison
time on her other charges. The matter was set for jury trial. (October 30, 2019, Judgment
Entry).
{¶18} On October 31, 2019, the State filed a motion to amend the indictment as
to Count One to indicate that it was a violation of R.C. 2925.11(A)(C)(1)(d), a felony of
the first-degree and the language of the statute to indicate that “the amount of the drugs
equals or exceeds fifty times bulk but is less than one hundred times bulk.” The parties
came to the trial court on October 31, 2019 for a change of plea and sentencing hearing.
McAllister stated at the hearing it was her intention to withdraw her not guilty pleas. The
trial court conducted the plea colloquy. McAllister pleaded guilty to an amended Count
One, aggravated possession of drugs, a first-degree felony in violation of R.C.
2925.11(A)(C)(1)(d), which carried a maximum prison term of three to eleven years;
Count Two, having weapons under disability, a third-degree felony in violation of R.C.
2923.12(A)(1) and (2), with a maximum prison term of 36 months; Count Three, carrying Licking County, Case No. 2019 CA 00118 6
a concealed weapon, a fourth-degree felony in violation of R.C. 2923.12(A)(2)(f)(1), with
a maximum prison term of 18 months; and Count Four, possession of heroin, a fifth-
degree felony in violation of R.C. 2925.11(A)(C)(6)(a), with a maximum prison term of one
year. (T. 10).
{¶19} The trial court accepted McAllister’s guilty pleas to the four charges. The
trial court noted that a presentence investigation report had been prepared and it had
reviewed the report. (T. 17). In regards to sentencing, counsel for McAllister stated that
she had provided information to local law enforcement regarding drug activity in Franklin
County that had been passed on to the DEA. (T. 18). Counsel also argued the incident
occurred in 2016. Based on her arrest in 2016, her probation in Summit County was
revoked and she served prison time. After she was released from prison, McAllister was
involved in a car accident that caused her serious injury and fatal injuries to her relative.
(T. 19). McAllister stated she failed to appear in court after the $150,000 bond was
imposed because of the car accident. (T. 24).
{¶20} McAllister informed the trial court she had two young children. (T. 21). While
she was on pretrial bond, she maintained employment and gave clean drug screens.
When she violated bond, she turned herself in to the bondsman. (T. 21).
{¶21} The trial court noted that McAllister had been granted judicial release twice
and it had been revoked both times. (T. 22). She applied for judicial release a third time
and it was denied. (T. 22). Before imposing sentence, the trial court stated:
THE COURT: Okay. Ms. McAllister, this is two pounds of
Methamphetamine.
DEFENDANT: I know. Licking County, Case No. 2019 CA 00118 7
THE COURT: I’ll never see another seizure that large, never seen one come
close to that, 883 grams. I forget what it takes to be mandatory prison, but
it’s like 15 or something like that. And it was in 2016. But you were on parole
at the time it looks like or on judicial release, something, on supervision at
least, and since you got out of prison and posted your bond here, you’ve
just – you’ve been a bondsmen’s nightmare. In any event –
DEFENDANT: I turned myself in with my bondsman.
THE COURT: Which time?
DEFENDANT: On the 18th, August 18th.
THE COURT: Okay. Well, that’s after their second or third warrant was
issued for your arrest. What was the bond posted then when you showed
up again?
DEFENDANT: Fifty thousand, but I was released from prison.
THE COURT: Is it a million now? Is that what your bond is?
DEFENDANT: Yes.
THE COURT: Okay. Since you failed to appear after the $150,000 bond.
DEFENDANT: Yes, sir. That was the time of the accident.
(T. 23-24)
{¶22} The trial court then sentenced McAllister:
THE COURT: Okay. Well, Ms. McAllister, on that basis here today, I’ll
impose a term of * * * five years in the state penitentiary on Count No. 1. I’ll
impose a term of three years in the state penitentiary on Count No. 2,
weapons under disability. I’ll impose a term of one year in the state Licking County, Case No. 2019 CA 00118 8
penitentiary on the carrying concealed weapons charge, and one year on
the Heroin possession charge. I’ll order they run consecutively with each
other for a 10-year prison term.
***
THE COURT: I find that consecutive sentences are necessary to protect
the public, punish the Defendant, not disproportionate to the crime she’s
committed, and necessitated by her criminal history * * * and that this
offense occurred while she was on supervision.
(T. 24, 26-27).
{¶23} On October 31, 2019, the trial court filed its judgment entry sentencing
McAllister to an aggregate prison term of ten years. In the sentencing entry, the trial court
sentenced McAllister to consecutive prison terms:
The Court has decided that the offender shall serve the prison terms
consecutively, pursuant to R.C. 2929.14(C)(4), because the Court finds
that the consecutive sentences are 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 the Court also finds the
following: The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under s 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. The offender’s Licking County, Case No. 2019 CA 00118 9
history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.
{¶24} It is from this judgment entry that McAllister now appeals.
ASSIGNMENT OF ERROR
{¶25} McAllister raises one Assignment of Error:
{¶26} “THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES WITHOUT MAKING THE REQUISITE STATUTORY FINDINGS AND IN
CONTRAVENTION OF THE CLEAR AND CONVINCING EVIDENCE THAT
APPELLANT WAS NOT SO DANGEROUS AS TO REQUIRE CONSECUTIVE
SENTENCES.”
ANALYSIS
{¶27} McAllister argues in her sole Assignment of Error that the trial court erred
when it imposed consecutive sentences because it failed to make the requisite findings
under R.C. 2929.14(C)(4) and the record did not support consecutive sentences. We
disagree.
{¶28} McAllister was convicted and sentenced to five years in prison for
aggravated possession of drugs, a first-degree felony; three years in prison for having
weapons under disability, a third-degree felony; one year in prison for carrying concealed
weapons, a fourth-degree felony; and one year in prison for possession of drugs, a fifth-
degree felony. The trial court ordered the prison terms were to run consecutively for an
aggregate term of ten years. Licking County, Case No. 2019 CA 00118 10
{¶29} We review sentencing under R.C. 2953.08(G)(2). “[A]ppellate courts must
adhere to the plain language of R.C. 2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d
516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 7. An appellate court may only modify or vacate
a sentence if it finds by clear and convincing evidence that the record does not support
the sentencing court's decision. Id. at ¶ 23. 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.’ ” State v. Silknitter, 3rd Dist. Union No. 14-16-07, 2017-Ohio-327, ¶ 7,
citing Marcum, supra. Clear and convincing evidence is that measure or degree of proof
which is more than a mere “preponderance of the evidence,” but does not require the
certainty of “beyond a reasonable doubt.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus.
{¶30} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption
by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. R.C. 2929.14(C)(4)
concerns the imposition of consecutive sentences and provides:
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: Licking County, Case No. 2019 CA 00118 11
(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.
{¶31} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,
2014-Ohio-3177, syllabus. The sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶ 34. The findings required by R.C. Licking County, Case No. 2019 CA 00118 12
2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing
entry. Id. at the syllabus.
{¶32} The relationship between the clear and convincing standard and the R.C.
2929.14(C)(4) findings was explained in State v. Venes, 8th Dist. No. 98682, 2013-Ohio-
1891, ¶ 19-22:
If the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly
and convincingly” find “[t]hat the record does not support the court's
findings[.]”
It is important to understand that the “clear and convincing” standard
applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.
2953.08(G)(2) makes it clear that “[t]he appellate court's standard for review
is not whether the sentencing court abused its discretion.” As a practical
consideration, this means that appellate courts are prohibited from
substituting their judgment for that of the trial judge. It is also important to
understand that the clear and convincing standard used by R.C.
2953.08(G)(2) is written in the negative. It does not say that the trial judge
must have clear and convincing evidence to support its findings. Instead, it
is the court of appeals that must clearly and convincingly find that the record
does not support the court's findings. In other words, the restriction is on the
appellate court, not the trial judge. This is an extremely deferential standard
of review. Licking County, Case No. 2019 CA 00118 13
In reaching this conclusion, we note that the term “record” as used in
R.C. 2953.08(G)(2) is very broad. It encompasses all of the proceedings
before the court, not just the sentencing. And while the court has the
obligation to make separate and distinct findings under R.C. 2929.14(C)(4)
before imposing sentence, support for those findings may appear anywhere
in the “record” and not just at the time the court imposes consecutive
sentences.
State v. Payton, 5th Dist. Muskingum No. CT2017-0095, 2018-Ohio-3864, 2018 WL
4600875, ¶ 22.
{¶33} McAllister acknowledges the trial court made the proper R.C. 2929.14(C)(4)
findings in the October 31, 2019 sentencing entry. She argues the trial court did not make
the proper findings during the sentencing hearing. At the sentencing hearing, the trial
court stated consecutive sentences were necessary “to protect the public, punish the
Defendant, not disproportionate to the crime she’s committed, and necessitated by her
criminal history * * * and that this offense occurred while she was on supervision.” (T. 26-
27). McAllister notes the trial court indicated that consecutive sentences were
proportionate to the seriousness of her conduct but did not mention whether consecutive
sentences were proportionate to the danger she posed to the public. She argues the trial
court made an incomplete finding as to proportionality, the third required finding to impose
consecutive sentences. She does not argue the trial court failed to make the “necessary”
finding under R.C. 2929.14(C)(4) or any of the three alternative findings under R.C.
2929.14(C)(4)(a), (b), or (c). Licking County, Case No. 2019 CA 00118 14
{¶34} As stated above, the trial court is not required to recite a word-for-word
recitation of the language of the statute. ““[A]s long as the reviewing court can discern
that the trial court engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences should be upheld.”
Bonnell, 2014-Ohio-3177, ¶ 29.
{¶35} During its sentencing of McAllister, the trial court addressed the seriousness
of McAllister’s conduct. The amount of methamphetamine in McAllister’s possession, 833
grams or almost two pounds, appeared to shock the trial court. It stated it had never seen,
and probably never will see again, a seizure of methamphetamine that large. It believed
that a much lesser amount of methamphetamine required a mandatory prison term.
During her arrest, a loaded weapon was also found in her possession.
{¶36} The trial court noted McAllister’s habit of ignoring court orders. At the time
of her arrest for possession of 883 grams of methamphetamine, heroin, and a loaded
firearm, she was on either felony probation or parole. She was also the subject of an
active felony warrant. She had been previously granted judicial release two times and
had it revoked both times. When she applied for judicial release a third time, it was denied.
During the pendency of this case, McAllister failed to appear in court at least three times
for which she was arrested. She also failed to appear for pre-trial supervision, also
requiring the issuance of a capias. She did not contact her attorneys or the trial court to
excuse her absences. Her original bond was set at $50,000. At the time of sentencing,
McAllister’s bond was set at $1,000,000.
{¶37} We find the trial court made the proportionality finding as required by R.C.
2929.14(C)(4). While the trial court did not use the words “consecutive sentences are not Licking County, Case No. 2019 CA 00118 15
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public” before imposing consecutive sentences, it did state at the
sentencing hearing that consecutive sentences were “not disproportionate to the crime
she’s committed.” (T. 26-27). The trial court addressed the seriousness of McAllister’s
conduct when it noted the large amount of methamphetamine found in her possession. It
considered the danger she posed to the public in her continued failure to abide by court
orders ranging from appearing in court to refraining from engaging in criminal activity
while on parole or probation. Based on the seriousness of her conduct and the danger of
her continued failure to abide by the law, the trial court found a single sentence
inadequate. Further, the trial court stated in the sentencing entry that “consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public.”
{¶38} As a result, upon review of the sentencing transcript and the judgment entry,
we can discern from the record that the trial court engaged in the appropriate analysis
and made the requisite proportionality finding. The trial court’s deviation from the statutory
language was not so egregious so as to render the sentence clearly and convincingly
contrary to law.
{¶39} We overrule McAllister’s sole Assignment of Error. Licking County, Case No. 2019 CA 00118 16
CONCLUSION
{¶40} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J., and
Baldwin, J., concur.