State v. McCain

2014 Ohio 2594

• Court: Ohio Court of Appeals
• Decided: June 16, 2014
• Docket: 13 CA 13
• Status: Published

Opinion

[Cite as State v. McCain, 2014-Ohio-2594.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13 CA 13 ALEA McCAIN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 13 CR 040

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 16, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

STEVE KNOWLING DAVID M. HUNTER PROSECUTING ATTORNEY 244 West Main Street 164 East Jackson Street Loudonville, Ohio 44842 Millersburg, Ohio 44654 Holmes County, Case No. 13 CA 13 2

Wise, J.

{¶1}. Appellant Alea McCain appeals her consecutive sentences in the Court of

Common Pleas, Holmes County, following a plea agreement on several felony drug

trafficking counts. The relevant procedural facts leading to this appeal are as follows.

{¶2}. On June 10, 2013, appellant was indicted by the Holmes County Grand

Jury on the following six counts:

{¶3}. Count I: (Alleged to have occurred on or about April 12, 2013), Aggravated

Trafficking (Percocet/Hydrocodone), R.C. 2925.03(A)(1), 2925.03(C)(1)(a), and

2925.03(C)(1)(b), a Felony of the Third Degree;

{¶4}. Count II: (Alleged to have occurred on or about April 12, 2013), Trafficking

in Marijuana, R.C. 2925.03(A)(1), 2925.03(C)(3)(a), and 2925.03(C)(3)(b), a Felony of

the Fourth Degree;

{¶5}. Count III: (Alleged to have occurred on or about April 14, 2013),

Aggravated Trafficking (Percocet/Hydrocodone), R.C. 2925.03(A)(1) and

2925.03(C)(1)(a), a Felony of the Fourth Degree;

{¶6}. Count IV: (Alleged to have occurred on or about April 14, 2013),

Trafficking in Marijuana, R.C. 2925.03(A)(1) and 2925.03(C)(3)(a), a Felony of the Fifth

Degree;

{¶7}. Count V: (Alleged to have occurred on or about April 17, 2013), Trafficking

in Marijuana, R.C. 2925.03(A)(1) and 2925.03(C)(3)(a), a Felony of the Fifth Degree,

and; Holmes County, Case No. 13 CA 13 3

{¶8}. Count VI: (Alleged to have occurred on or about May 20, 2013),

Aggravated Trafficking (Percocet/Hydrocodone), in violation of R.C. 2925.03(A)(1) and

2925.03(C)(1)(c), a Felony of the Second Degree.

{¶9}. Furthermore, Counts I, II, and VI were alleged to have been committed

within the vicinity of a school. Forfeiture specifications were also attached to all of the

counts.

{¶10}. Appellant appeared for arraignment on June 19, 2013. A change of plea

hearing was conducted by the trial court on August 21, 2013. At that time, appellant

entered a plea of guilty to Counts I, II, III, IV. Appellant also entered a plea of guilty to

Count VI after it was amended to a felony of the third degree. Count V was dismissed. A

companion case, 13CR079, was also dismissed. A presentence investigation was also

ordered.

{¶11}. The trial court conducted a sentencing hearing on September 26, 2013.

The trial court thereupon sentenced appellant to eighteen months on Count I, twelve

months on Count II, twelve months on Count III, eleven months on Count IV, and twelve

months on amended Count VI. Counts I through IV were ordered to be served

concurrently with each other and consecutively to Count VI, for a total prison sentence

of thirty months.

{¶12}. Appellant filed a notice of appeal on October 24, 2013. Appellant herein

raises the following sole Assignment of Error:

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

CONSECUTIVE SENTENCES. “ Holmes County, Case No. 13 CA 13 4

I.

{¶14}. In her sole Assignment of Error, appellant contends the trial court erred in

sentencing her to consecutive prison terms. We disagree.

{¶15}. 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The General Assembly has thus expressed its intent to revive the

statutory fact-finding provisions pertaining to the imposition of consecutive sentences

that were effective pre-Foster. See State v. Wells, Cuyahoga App.No. 98428, 2013–

Ohio–1179, ¶ 11. These revisions to the felony sentencing statutes now require a trial

court to make specific findings when imposing consecutive sentences. Nonetheless,

“[a]lthough H.B. 86 requires the trial court to make findings before imposing a

consecutive sentence, it does not require the trial court to give its reasons for imposing

the sentence.” State v. Bentley, Marion App.No. 9–12–31, 2013–Ohio–852, ¶ 12, citing

State v. Frasca, Trumbull App.No. 2011–T–01 08, 2012–Ohio–3746, ¶ 57. Likewise, “***

under H.B. 86, a trial court is not required to articulate and justify its findings at the

sentencing hearing when it imposes consecutive sentences as it had to do under S.B.

2.” State v. Redd, Cuyahoga App.No. 98064, 2012–Ohio–5417, ¶ 12. But the record

must demonstrate that consecutive sentences are appropriate and clearly supported.

See State v. Ducker, Stark App.No. 2012CA00192, 2013–Ohio–3657, ¶ 16.

{¶16}. R.C. 2929.14(C)(4) states as follows:

{¶17}. “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 Holmes County, Case No. 13 CA 13 5

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:

{¶18}. "(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.

{¶19}. “(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.

{¶20}. “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

{¶21}. In the case sub judice, the trial court set forth the following findings, in

pertinent part, at the sentencing hearing:

{¶22}. "The Court finds that consecutive sentences are necessary to protect the

public from future crimes. At least two (2) of these multiple offenses were committed as

one or more course [sic] 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 any of the course and conduct adequately affect

[sic] the seriousness of the Offender's conduct and consecutive sentences are dis ... are Holmes County, Case No. 13 CA 13 6

not disappropriate [sic] uh, to the seriousness of the Offender's conduct and the danger

of the offense imposed to the public."

{¶23}. Sentencing Tr. at 8.

{¶24}. Similar written findings were made in the written sentencing entry.

{¶25}. In the case sub judice, appellant is in her early twenties and has one prior

reported adult conviction, which resulted in probation. However, there is no dispute that

appellant sold ten Percocet pills and marijuana on April 12, 2013, while at the

Holmesville Bell Store parking lot. These acts were in the vicinity of a school.

Furthermore, on April 14, 2013, at Skip's Car Wash, appellant again sold Percocet pills

and marijuana. Finally, on May 20, 2013, while at the Holmesville Bell Store, appellant

sold a large quantity of Oxycodone pills. See Tr., August 21, 2013, at 12. This act was

also within the vicinity of a school. Appellant's trafficking offenses were thus spread out

over two locations and three dates.

{¶26}. Appellant nonetheless urges that the trial court contradicted itself by

finding the harm caused by two or more of the offenses was "so great or unusual" that

consecutive sentences were appropriate in the matter, while also finding, in its redress

of the seriousness factors of R.C. 2929.12, that "no serious harm to persons or property

were [sic] expected." See Sentencing Tr. at 7. We first note that any findings of the trial

court in regard to R.C. 2929.11 and 2929.12 need not be in the sentencing transcript if

the findings are contained in the journal entry. See State v. O'Donnell, Summit App.No.

23525, 2007–Ohio–1943, ¶ 7 (additional citations omitted). Even so, it is quite possible

that the trial court's conceptualization of "harm" under R.C. 2929.14(C)(4)(b) was more

expansive than under R.C. 2929.12 based on the potential consequences of appellant's Holmes County, Case No. 13 CA 13 7

contribution to the flow of illegal drugs into the community. In any case, the alleged

discrepancy does not render the trial court's consecutive sentences in this matter

unreasonable, arbitrary or unconscionable, or contrary to law, and, upon review, we find

the trial court adequately made the findings set forth under R.C. 2929.14(C)(4) and R.C.

2929.14(C)(4)(b), both at sentencing and in the written entry.

{¶27}. Appellant's sole Assignment of Error is therefore overruled.

{¶28}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Holmes County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

JWW/d 0603 Holmes County, Case No. 13 CA 13 8