State v. Richey

2023 Ohio 336

• Court: Ohio Court of Appeals
• Decided: February 6, 2023
• Docket: CA2022-08-038 CA3022-08-039 CA2022-08-040 CA2022-08-041
• Status: Published

Opinion

[Cite as State v. Richey, 2023-Ohio-336.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellee, : CASE NOS. CA2022-08-038 CA2022-08-039 : CA2022-08-040 - vs - CA2022-08-041 : OPINION DAMION A. RICHEY, : 2/6/2023

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case Nos. 2021 CR 0067; 2021 CR 0563; 2021 CR 0737; 2022 CR 0174

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.

W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant Public Defender, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Damion A. Richey, appeals the decision of the Clermont County

Court of Common Pleas sentencing him to serve a total, aggregate term of a minimum 15

years to a maximum 22-and-one-half years in prison as a result of pleading guilty to 15

felony drug offenses. For the reasons outlined below, we affirm. Clermont CA2022-08-038 thru -041

Facts and Procedural History

{¶ 2} This appeal arises out of the charges brought against Richey in four separate

cases. Those four cases were given trial court Case Nos. 2021 CR 0067, 2021 CR 0563,

2021 CR 0737, and 2022 CR 0174. The following are the facts relevant to each of those

four cases.

Case No. 2021 CR 0067

{¶ 3} On January 26, 2021, the Clermont County Grand Jury returned a multi-count

indictment charging Richey with eight felony drug offenses. Those eight felony drug

offenses consisted of two counts of aggravated possession of drugs, two counts of

aggravated trafficking in drugs, one count of illegal manufacturing of drugs, one count of

illegal assembly of chemicals for the manufacturing of drugs, one count of possession of

LSD, and one count of trafficking in LSD. Those eight charges arose after the Clermont

County Narcotics Unit conducted a lawful search of Richey's home on March 5, 2020 that

resulted in the discovery of $449 in cash, a Smith & Wesson .38 Special firearm and

ammunition, as well as numerous illicit drugs within Richey's home. This included 255

doses of LSD and a large scale mushroom grow operation that contained approximately

4,025 grams of psilocin/psilocybin.1

Case No. 2021 CR 0563

{¶ 4} On June 24, 2021, the Clermont County Grand Jury returned another multi-

count indictment charging Richey with an additional 12 felony drug offenses. Those 12

felony drug offenses consisted of three counts of aggravated possession of drugs, three

counts of trafficking in drugs, one count of possession of a fentanyl related compound, one

1. Psilocin is the metabolite of psilocybin. State v. Douglass, 5th Dist. Licking No. 2019 CA 00056, 2020- Ohio-1214, ¶ 2, fn. 1. Psilocin is a naturally occurring substance that is found in most psychedelic, hallucinogenic mushrooms. See State v. York, 12th Dist. Butler No. CA2021-11-147, 2022-Ohio-2457, ¶ 2, fn. 1; see also State v. Fox, 12th Dist. Fayette No. CA2008-03-009, 2009-Ohio-556, ¶ 3. -2- Clermont CA2022-08-038 thru -041

count of trafficking a fentanyl related compound, one count of possession of cocaine, one

count of trafficking in cocaine, one count of possession of LSD, and one count of trafficking

in LSD. Those 12 charges arose after law enforcement conducted a lawful search of

Richey's home on October 26, 2020 following a report from Richey's girlfriend that Richey,

who was then out on bond, had overdosed inside his home. This search resulted in the

discovery of more illicit drugs within Richey's home. This included over seven grams of

heroin/fentanyl and 68.25 grams of methamphetamine.

Case No. 2021 CR 0737

{¶ 5} On August 24, 2021, the Clermont County Grand Jury returned yet another

multi-count indictment charging Richey with a further nine felony drug offenses. Those nine

felony drug offenses consisted of two counts of aggravated possession of drugs, two counts

of aggravated tracking in drugs, three counts of trafficking in drugs, one count of possession

of cocaine, and one count of trafficking in cocaine. Those nine charges arose after the

Clermont County Narcotics Unit conducted a new, lawful search of Richey's home on

January 19, 2021 that resulted in the discovery of $1,200 in cash and even more illicit drugs

within Richey's home. This included another 23.28 grams of methamphetamine.

Case No. 2022 CR 0174

{¶ 6} On February 17, 2022, the Clermont County Grand Jury returned a final multi-

count indictment charging Richey with 22 additional felony drug offenses. Those 22 felony

drug offenses consisted of seven counts of aggravated possession of drugs, seven counts

of aggravated trafficking in drugs, three counts of possession of LSD, three counts of

trafficking in LSD, and two counts of possession of drugs. Those 22 charges arose on July

7, 2021 after Richey, who was again out on bond, sold drugs to a confidential informant

within 1,000 feet of a school. Then, two days later, on July 9, 2021, officers conducted a

lawful search of Richey's home that resulted in the discovery of even more illicit drugs both

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on Richey's person and within Richey's home. This included clonazolam and

methylenedioxyamphetamine (MDA), as well as methamphetamine and 320 unit doses of

LSD.

The Trial Court's Joint Change of Plea Hearing

{¶ 7} On April 12, 2022, the trial court held a joint change of plea hearing. During

this hearing, Richey pled guilty to 15 of the 51 total felony drug charges levied against him.

This ultimately resulted in Richey pleading guilty to two counts of aggravated trafficking in

drugs (methamphetamine and psilocin/psilocybin) and one count of trafficking in LSD in

Case No. 2021 CR 0067; two counts of aggravated trafficking in drugs (methamphetamine

and amphetamine) and one count of trafficking in a fentanyl related compound in Case No.

2021 CR 0563; two counts of trafficking in drugs (methamphetamine and amphetamine)

and one count of trafficking in cocaine in Case No. 2021 CR 0737; and four counts of

aggravated trafficking in drugs (methamphetamine, clonazolam, and

methylenedioxyamphetamine [MDA]) and two counts of trafficking in LSD in Case No. 2022

CR 0174. The trial court accepted Richey's plea upon finding it was knowingly, intelligently,

and voluntarily entered.

The Trial Court's Joint Sentencing Hearing

{¶ 8} On June 29, 2022, the trial court held a joint sentencing hearing and

sentenced Richey to serve an aggregate term of a minimum 15 years in prison to a

maximum 22-and-one-half years in prison, less 430 days of jail-time credit. In so doing, the

trial court ordered the five to seven-and-one-half year prison term imposed in Case No.

2022 CR 0174 to run consecutively to the five to seven-and-one-half year prison term

imposed in Case No. 2021 CR 0737, which was, in turn, ordered to run consecutively to the

two concurrent five to seven-and-one-half year prison terms imposed in Case Nos. 2021

CR 0563 and 2021 CR 0067. The trial court also ordered Richey to pay court costs,

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suspended Richey's driver's license for a period of five years, and notified Richey that he

would be subject to a mandatory postrelease control term of up to three years upon his

release from prison. The trial court issued this decision after specifically stating that it had

considered the purposes of sentencing set forth under R.C. 2929.11, including the minimum

sanctions necessary to accomplish the purposes of sentencing without imposing an

unnecessary burden on state or local government resources, as well as the seriousness

and recidivism factors listed in R.C. 2929.12.

The Trial Court's Consecutive Sentence Findings for Case No. 2022 CR 0174

{¶ 9} The trial court ordered the five to seven-and-one-half year prison term

imposed in Case No. 2022 CR 0174 to run consecutive to the five to seven-and-one-half

year prison term imposed in Case No. 2021 CR 0737. The trial court reached this decision

upon finding consecutive sentences were necessary to protect the public from future crime

or to punish Richey; that ordering consecutive sentences was not disproportionate to the

seriousness of Richey's conduct and to the danger Richey poses to the public; that "these

offenses were committed, one or more of the multiples offenses while awaiting trial in the

other case," and

at least two of the multiple offenses were committed as one or more courses of conduct in the harm clause, two or more of the multiple offenses so committed were 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 his conduct.

The trial court also found Richey's "history of criminal conduct" demonstrated that

consecutive sentences were "necessary to protect the public from future crime of the

offender or by the offender." The trial court found this held true even though Richey's

criminal history was "not the worst" that it had ever seen.

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The Trial Court's Consecutive Sentence Findings for Case No. 2021 CR 0737

{¶ 10} The trial court also ordered the five to seven-and-one-half year prison term

imposed in Case No. 2021 CR 0737 to run consecutive to the two concurrent five to seven-

and-one-half year prison terms imposed in Case Nos. 2021 CR 0563 and 2021 CR 0067.

Similar to what it had done for Case No. 2022 CR 0174, the trial court reached this decision

upon finding consecutive sentences were necessary to protect the public from future crime

or to punish Richey; that ordering consecutive sentences were not disproportionate to the

seriousness of Richey's conduct and to the danger Richey poses to the public; and that

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 those multiple offenses so committed was so great or unusual that no single prison term for any of those offenses committed as part of any of the courses of conduct adequately reflects the seriousness of his conduct.

The trial court also found, just as it had done previously for Case No. 2022 CR 0174, that

Richey's "history of criminal conduct" demonstrated that consecutive sentences were

"necessary to protect the public from future crime by the offender."

Richey's Appeal and Single Assignment of Error

{¶ 11} Richey now appeals, raising one assignment of error for review. In his single

assignment of error, Richey argues the trial court erred by sentencing him to serve an

aggregate term of a minimum 15 years in prison to a maximum 22-and-one-half years in

prison. This is because, according to Richey, it was error for the trial court to impose

consecutive sentences in this case. We disagree.

The Two Available Challenges to Consecutive Sentences Under R.C. 2953.08(G)(2)

{¶ 12} The standard of review set forth in R.C. 2953.08(G)(2) governs all felony

sentences. State v. Simmons, 12th Dist. Warren No. CA2020-10-069, 2021-Ohio-3563, ¶

80. Pursuant to R.C. 2953.08(G)(2)(a) and (b), this court may modify or vacate a felony

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sentence only if, by clear and convincing evidence, "the record does not support the trial

court's findings under relevant statutes or that the sentence is otherwise contrary to law."

State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. The

consecutive sentence statute, R.C. 2929.14(C)(4), is one of the relevant statutes

specifically mentioned in R.C. 2953.08(G)(2). State v. Gwynne, 158 Ohio St.3d 279, 2019-

Ohio-4761, ¶ 16. "Thus, there are two ways that a defendant can challenge consecutive

sentences on appeal." State v. Shiveley, 12th Dist. Clermont No. CA2022-04-017, 2022-

Ohio-4036, ¶ 7. The defendant can argue either that the imposition of consecutive

sentences is contrary to law because the trial court failed to make the necessary

consecutive sentence findings required by R.C. 2929.14(C)(4), or that the record does not

support the trial court's consecutive sentence findings made under R.C. 2929.14(C)(4). Id.,

citing State v. Hawley, 8th Dist. Cuyahoga No. 108254, 2020-Ohio-1270, ¶ 10. These are

the only two means that the legislature provided to defendants to challenge their

consecutive sentences on appeal. State v. Gwynne, Slip Opinion No. 2022-Ohio-4607, ¶

11.

Richey Challenges the Trial Court's Consecutive Sentence Findings

{¶ 13} Richey does not dispute that the trial court made the necessary consecutive

sentence findings required by R.C. 2929.14(C)(4). Richey thereby concedes that the trial

court's decision to impose consecutive sentences was not clearly and convincingly contrary

to law under R.C. 2953.08(G)(2)(b). Richey instead argues the record does not support the

trial court's consecutive sentence findings pursuant to R.C. 2953.08(G)(2)(a). Such a

challenge requires this court to review the record de novo and decide whether the record

clearly and convincingly does not support the trial court's consecutive sentence findings.

Gwynne, 2022-Ohio-4607 at ¶ 1. When so doing, this court "essentially functions in the

same way as the trial court when imposing consecutive sentences in the first instance." Id.

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at ¶ 21.

{¶ 14} This court is constrained, however, to considering only those consecutive

sentence findings that the trial court actually made. Id. at ¶ 21. This necessarily precludes

this court from making our own consecutive sentence findings, as that is a task reserved

for the trial court. Id. Therefore, upon a de novo review of the record, this court may reverse

or modify consecutive sentences—including the number of consecutive sentences imposed

by the trial court—only if we clearly and convincingly find that the record does not support

the trial court's consecutive sentence findings made under R.C. 2929.14(C)(4). Id. at ¶ 12.

That is, only in circumstances where this court "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." Id. at ¶ 21.

Consecutive Sentence Findings Under R.C. 2929.14(C)(4)

{¶ 15} R.C. 2929.14(C)(4) sets forth the required consecutive sentence findings that

must be made prior to the imposition of consecutive sentences. Gwynne, 2022-Ohio-4607

at ¶ 10. Specifically, the trial court must find that consecutive sentences are necessary to

protect the public from future crime or to punish the offender. State v. Dillon, 12th Dist.

Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. The trial court must also find that

consecutive sentences are not disproportionate to the seriousness of the offender's conduct

and to the danger the offender poses to the public. State v. Heard, 12th Dist. Butler Nos.

CA2014-02-024, CA2014-02-025, and CA2014-05-118, 2014-Ohio-5394, ¶ 10. The trial

court must further find "that at least one or more of the aggravating factors in R.C.

2929.14(C)(4)(a) through (c) are present." State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-

5584, ¶ 205; State v. Liming, 12th Dist. Clermont Nos. CA2018-05-028 and CA2018-05-

029, 2019-Ohio-82, ¶ 25. Those three circumstances are:

(a) The offender committed one or more of the multiple offenses

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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.

{¶ 16} A trial court's consecutive sentence findings "are not simply threshold findings

that, once made, permit any amount of consecutively stacked individual sentences" or

"consecutive sentence stacking." Gwynne, 2022-Ohio-4607 at ¶ 1, 13. "Rather, these

findings must be made in consideration of the aggregate term to be imposed." Id. at ¶ 1.

That is to say, when a trial court "makes the statutory findings under R.C. 2929.14(C)(4) for

consecutive sentences, it must consider the number of sentences that it will impose

consecutively along with the defendant's aggregate sentence that will result." Id. at ¶ 12.

For example, whether consecutive sentences are necessary to protect the public is

"completely dependent on whether the defendant's criminal history demonstrates the need

for the defendant to be incapacitated by a lengthy term of incarceration." Id. at ¶ 15. A trial

court cannot make this "necessity finding" without considering the overall prison term that

it will be imposing. Id. This is why, when imposing consecutive sentences, a trial court

must consider "each sentence on individual counts that it intends to impose consecutively

on the defendant and the aggregate prison term that will result." (Emphasis added.) Id. at

¶ 14.

Richey's First Argument Lacks Merit

{¶ 17} Richey initially argues the trial court erred by finding the imposition of

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consecutive sentences was not disproportionate to the danger he posed to the public under

R.C. 2929.14(C)(4). This requires Richey to show, through clear and convincing evidence,

that the trial court erred by finding the imposition of consecutive sentences was "not

disproportionate to the danger he posed to the public." Shiveley, 2022-Ohio-4036 at ¶ 22.

The term "clear and convincing evidence" means "that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such certainty

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

mind of the trier of facts a firm belief or conviction as to the facts sought to be established."

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 22, quoting Cross v. Ledford, 161

Ohio St. 469 (1954), paragraph three of the syllabus; State v. Sanders, 12th Dist. Butler

CA2001-03-068, 2002 Ohio App. LEXIS 1432, *3-*4 (Mar. 29, 2002).

{¶ 18} Richey claims the trial court erred by finding the imposition of consecutive

sentences was not disproportionate to the danger he posed to the public because he had

never before been convicted of a felony. This may very well be true. Richey, however, had

been convicted of a multitude of misdemeanor offenses. This includes two counts of first-

degree misdemeanor theft, two counts of first-degree misdemeanor obstructing official

business, two counts of first-degree misdemeanor attempted possession of drugs, and one

count of first-degree misdemeanor operating a vehicle while under the influence. The

record also indicates that Richey, who was just 27 years old at the time of sentencing, had

been found guilty of violating the terms of his probation on four separate occasions for either

using drugs or for not completing treatment. This ultimately resulted in the trial court

sentencing Richey to serve between 120 to 150 days in jail for each of those four probation

violations. We find this falls well short of the required clear and convincing evidence

necessary to show the trial court erred by finding the imposition consecutive sentences was

not disproportionate to the danger Richey posed to the public. Richey's claim otherwise

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lacks merit.

{¶ 19} Richey also claims the trial court erred by finding the imposition of consecutive

sentences was not disproportionate to the danger he posed to the public because the record

was devoid of any evidence that anybody "suffered injury" or sustained "any actual harm"

from his drug trafficking. However, although we agree that the record does not contain any

such evidence, that does not mean the trial court's imposition of consecutive sentences was

improper. Far from it. This only means Richey has so far been fortunate that none of the

drugs he trafficked into the community resulted in anybody being seriously hurt or killed.

Other drug traffickers in Richey's position have not been so lucky. See generally State v.

Haines, 12th Dist. Clermont No. CA2021-07-040, 2022-Ohio-1145 (affirming appellant's

convictions for involuntary manslaughter, corrupting another with drugs, trafficking in heroin,

and aggravated trafficking in drugs following the victim's overdose death caused by the

narcotics appellant had sold to the victim).

{¶ 20} The trafficking of illicit drugs like amphetamine, a fentanyl related compound,

clonazolam, cocaine, LSD, methamphetamine, methylenedioxyamphetamine (MDA), and

psilocin/psilocybin poses a significant danger to the public, both directly and indirectly,

regardless of whether the individual(s) who take those drugs are themselves injured. This

danger only increases where, as here, the drug trafficker does not stop dealing drugs even

after being caught by law enforcement multiple times within such a short time span. That

is to say nothing of the fact that the original search of Richey's home resulted in more than

just the discovery of illicit drugs, but also $449 in cash and a Smith & Wesson .38 Special

firearm and ammunition. Therefore, similar to before, we also find this falls well short of the

required clear and convincing evidence necessary to indicate the trial court erred by finding

the imposition of consecutive sentences was not disproportionate to the danger Richey

posed to the public. Richey's claim otherwise again lacks merit. Accordingly, finding no

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merit to either of two claims Richey raised herein in support of his first argument, Richey's

first argument lacks merit.

Richey's Second Argument Lacks Merit

{¶ 21} Richey next argues the trial court erred by finding the harm he caused was so

great or unusual that no single prison term adequately reflected the seriousness of his

conduct under R.C. 2929.14(C)(4)(b). However, even assuming we found merit to Richey's

claim, the trial court also found the circumstance set forth under R.C. 2929.14(C)(4)(c)

applied. That is to say, the trial court also found Richey's history of criminal conduct

demonstrated the imposition of consecutive sentences was necessary to protect the public

from future crime by Richey. Richey does not dispute this finding. Therefore, because the

trial court is only required to find one of the aggravating factors in R.C. 2929.14(C)(4)(a)

through (c) applies, any error the trial court committed by finding the harm Richey caused

was so great or unusual that no single prison term adequately reflected the seriousness of

his conduct under R.C. 2929.14(C)(4)(b) was, at worst, harmless. See, e.g., State v.

Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio- 3243, ¶ 15 ("if the trial court's finding

under R.C. 2929.14[C][4][b] was erroneous, any such error was harmless since the trial

court also made a finding under R.C. 2929.14[C][4][c] that is supported by the record").

Accordingly, because any error the trial court may have made by finding the harm Richey

caused was so great or unusual that no single prison term adequately reflected the

seriousness of his conduct under R.C. 2929.14(C)(4)(b) was, at worst, harmless, Richey's

second argument also lacks merit.

Richey's Third Argument Lacks Merit

{¶ 22} Richey further argues the trial court's imposition of consecutive sentences

was "not the minimum sanction necessary to accomplish the purposes and principles of

sentencing without imposing an unnecessary burden on the state." Richey supports this

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claim by citing R.C. 2929.11, which, as referenced above, requires a trial court sentencing

an offender to a felony to impose the minimum sanctions it determines necessary to protect

the public from future crime by the offender and others, to punish the offender, and to

promote the effective rehabilitation of the offender, without imposing an unnecessary

burden on state or local government resources. The plain language found in R.C.

2953.08(G)(2), however, "does not permit an appellate court to conduct an independent

review of a trial court's sentencing findings under R.C. 2929.12 or its adherence to the

purposes of felony sentencing under R.C. 2929.11." State v. Bryant, Slip Opinion No. 2022-

Ohio-1878, ¶ 21; State v. Clinger, 12th Dist. Preble No. CA2021-11-014, 2022-Ohio-3691,

¶ 41. That is to say, R.C. 2953.08(G)(2) "precludes second-guessing a sentence imposed

by a trial court based on its weighing of the considerations in R.C. 2929.11 and 2929.12."

State v. Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, ¶ 10 (Brunner, J., concurring.). The

record must instead "merely reflect that the trial court considered the relevant statutory

factors set forth in R.C. 2929.11 and 2929.12 prior to issuing its decision." State v. Murphy,

12th Dist. Butler No. CA2021-05-048, 2021-Ohio-4541, ¶ 26. This necessarily includes the

trial court's determination regarding the minimum sanctions that should be imposed to avoid

unnecessarily burdening the state or local government resources.

{¶ 23} The Ohio Supreme Court reached this decision based upon its finding nothing

within R.C. 2953.08(G)(2) that would permit this court "to independently weigh the evidence

in the record and substitute its judgment for that of the trial court concerning the sentence

that best reflects compliance with R.C. 2929.11 and 2929.12." State v. Jones, 163 Ohio

St.3d 242, 2020-Ohio-6729, ¶ 42. The Ohio Supreme Court found there was also nothing

within R.C. 2953.08(G)(2) that would permit this court to conduct a "freestanding inquiry" of

the trial court's sentencing decision. Id. This court must therefore decline Richey's invitation

to independently weigh the evidence in the record and substitute its judgment for that of the

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trial court with respect to R.C. 2929.11. The same is true as it relates to the trial court's

determination regarding the minimum sanctions necessary to protect the public from future

crime by Richey and others, to punish Richey, and to promote the effective rehabilitation of

Richey, without imposing an unnecessary burden on state or local government resources.

See State v. Orender, 12th Dist. Butler No. CA2021-12-149, 2022-Ohio-2823, ¶ 15. The

fact that Richey believes a lesser sentence would have been sufficient does not mean the

trial court erred by imposing the sentence that it did. This is particularly true here when

considering Richey faced a far greater sentence of over 90 years in prison had the trial court

imposed the maximum, consecutive sentence available for each of the 15 felony drug

offenses for which he pled guilty. Accordingly, finding no merit to the argument Richey

raised herein in support of his third argument, Richey's third argument likewise lacks merit.

Conclusion

{¶ 24} For the reasons set forth above, and finding no merit to any of the three

arguments raised by Richey herein, Richey's single assignment of error lacks merit and is

overruled.

{¶ 25} Judgment affirmed.

HENDRICKSON and M. POWELL, JJ., concur.

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