[Cite as State v. Rogers, 2026-Ohio-2277.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 25CA10 & 25CA13
v. :
ROBERT A. ROGERS, : DECISION & JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________ APPEARANCES:
Brian A. Smith, Fairlawn, Ohio, for appellant1.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Alisa Turner, Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:6-11-26 ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas
Court judgment of conviction and sentence.2 Robert Rogers,
defendant below and appellant herein, raises one assignment of
error for review:
“THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING CONSECUTIVE SENTENCES ON APPELLANT, BY ORDERING APPELLANT’S SENTENCE IN CASE NUMBER 24CR136 TO BE SERVED CONSECUTIVELY TO APPELLANT’S SENTENCE IN CASE NUMBER 24CR39, IN VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH
1 Different counsel represented appellant during the trial court proceedings. 2 Becauseappellant’s appeal raises identical issues with respect to Case No. 25CA10 and Case No. 25CA13, we consolidate the cases for purposes of discussion, decision and judgment. Ross App. No. 25CA10 & 25CA13 2
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND OF APPELLANT’S RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION.”
{¶2} In March 2024, a Ross County Grand Jury returned an
indictment in Case No. 24CR39 (Appellate Case No. 25CA10) that
charged appellant with (1) one count of cocaine possession in
violation of R.C. 2925.11 (with a specification that the amount
exceeded 100 grams), a first-degree felony, (2) one count of
trafficking in cocaine in violation of R.C. 2925.03, a first-
degree felony, (3) one count of possession of cocaine in
violation of R.C. 2925.11, a first-degree felony, and (4) six
counts of having weapons while under disability in violation of
R.C. 2923.13, all third-degree felonies. Appellant entered not
guilty pleas.
{¶3} In May 2024, a Ross County Grand Jury returned an
indictment in Case No. 24CR136 (Appellate Case No. 25CA13) that
charged appellant with (1) one count of trafficking in cocaine
in violation of R.C. 2925.03, and (2) one count of possession of
cocaine in violation of R.C. 2925.11, both first-degree
felonies. Appellant entered not guilty pleas.
{¶4} On December 3, 2024, the trial court held a combined
plea hearing. The court reviewed appellant’s charges in both
cases, and indicated that counts one, two, and three (in Case Ross App. No. 25CA10 & 25CA13 3
No. 24CR39) and counts one and two (in Case No. 24CR136) are
first-degree felonies that “will carry indefinite sentences,”
“which means you will receive both a minimum and a maximum
term.” The court further explained that “because these are
first degree felonies, the minimum term can range between three
and 11 years,” and “after the court picks the minimum sentence,
the maximum term will automatically be the minimum term plus
fifty percent of the minimum term.” The court further noted
that (1) each of the first-degree felonies carries a mandatory
sentence, (2) appellant is ineligible for community control or
judicial release for those offenses, and (3) each first-degree
felony carries a mandatory fine of up to $20,000, half of which
is mandatory. Thus, the court indicated that “the maximum
prison term you could face on each of those first-degree felony
counts is 16 ½ years in prison.” With regard to Case No. 24CR39
the court explained that the five third-degree weapons charges
carry a potential prison term of 9 to 36 months and a fine up to
$10,000. The court further explained that appellant would serve
a mandatory two to five-year postrelease control term.
{¶5} The trial court conducted a Crim.R. 11 colloquy and
advised appellant of his rights and the effects of his decision
to plead guilty, reviewed the signed plea form and jury waiver,
reviewed the facts and charges, and asked appellant if any
drugs, alcohol, or mind-altering substances influenced him. The Ross App. No. 25CA10 & 25CA13 4
court advised and reviewed with appellant the constitutional
rights he waived with his plea, including (1) the right to a
jury trial, (2) the right to confront one’s accusers, (3) the
right to compulsory process to obtain witnesses, (4) the right
to require appellee to prove guilt beyond a reasonable doubt,
and (5) the privilege against compulsory self-incrimination.
The court also explained the maximum penalties, postrelease
control, and reminded appellant that the parties’ sentencing
recommendation did not bind the court’s sentencing decision.
{¶6} Appellant expressed his understanding and agreement at
each stage of the plea colloquy and affirmed his execution of
the written plea form. In addition, the trial court verified
that appellant discussed the plea with his counsel and
acknowledged his satisfaction with counsel.
{¶7} Counsel recited the plea agreement in Case No.
24CR136, under which appellant would plead guilty to first-
degree felony trafficking in cocaine (Count One) and first-
degree felony possession of cocaine (Count Two). Appellant
acknowledged that the maximum penalty could be a maximum prison
term of 22-27.5 years, all mandatory, and a maximum $40,000
fine, $20,000 of which is mandatory. In Case No. 24CR39,
appellant would plead guilty to Count One (possession of
cocaine), Count Two (trafficking), and Count Three (possession), Ross App. No. 25CA10 & 25CA13 5
all first-degree felonies, and six counts of having weapons
while under disability, all third-degree felonies.
{¶8} The trial court also granted appellant’s motion to
modify bond and released him to spend time with his new child
and visit his gravely ill mother. The trial court stated:
THE COURT: Now, so you and I understand each other, I will one hundred percent go along with that recommended time, so long as you do a couple of things: number one, don’t get into trouble between now and sentencing, right?
MR. ROGERS: Okay. I won’t. Yes, sir.
THE COURT: You understand when you were out the last time, new charges came about, right, so this is time- I’m looking at this as time that you spend valuable time with your family, right, not out.
MR. ROGERS: Yes, sir.
THE COURT: Not out playing around with drugs, right. So don’t get in trouble and make sure you show up. Don’t go off on a run or anything. The reason I remind you of that is because based on the level of – I have years and years and years of time I could hang on you, right.
MR. ROGERS: Yes, sir.
THE COURT: All right. So keep that in mind. Don’t go out and - - I mean you could - - good heavens, there’s a ton of time that could happen. I will go along with the plea deal, just make sure you don’t get in trouble and make sure you’re here on January 2nd, okay?
MR. ROGERS: I will.
{¶9} On January 2, 2025, appellant unfortunately opted to
fail to appear for sentencing. The trial court issued a bench
warrant for appellant’s arrest and, after his apprehension in Ross App. No. 25CA10 & 25CA13 6
Florida, the court proceeded with sentencing on March 26, 2025.
Appellee reviewed the plea agreement and stated, “there was a
global offer and acceptance in this case and for each case there
was a state’s recommendation of 14 to 16 ½ years prison on a
total of two cases.” Appellee further specified, with regard to
Case No. 24CR39, “there is . . . merger on counts one and two .
. . and the state would elect to – for the purpose of
sentencing, on count one.” Appellee also noted that it would
dismiss the major drug offender specification. Regarding Case
No. 24CR136, appellee indicated that Counts One and Two
(trafficking and possession) would merge, and appellee elected
to sentence on Count Two (trafficking).
{¶10} When the trial court provided appellant his right of
allocution, he stated that “he lost it” when he visited his
mother and discovered that she weighed 93 pounds, and he “went
to Florida to work,” cleaning celebrity mansions, making $25 an
hour . . . and “saving up and sending the money back to Ohio to
give my Mom a proper burial.” “When I was sending the money
back to give her a proper burial, I wanted to be a pallbearer to
my Mom. She wanted me to be the pallbearer to put her in the
ground.” Appellant also stated that no trial court had ever
given him the opportunity to rehabilitate himself by ordering
him to seek drug treatment and argued that he did not have a
drug trafficking record, only possession. The trial court Ross App. No. 25CA10 & 25CA13 7
responded, “possession of a crap load of cocaine,” and noted,
“that’s not just personal use cocaine. That is dealer level
cocaine and you and I both know that.”
{¶11} Appellee reviewed appellant’s criminal history, which
included a 1999 trafficking and possession, a 2004 weapon under
disability, a 2008 possession and carrying a concealed weapon, a
2014 weapon under disability, a 2016 possession, aggravated
possession convictions in 2019. The trial court addressed
appellant:
Here’s the thing, Mr. Rogers. Let me start with the issues with your ailing mother. I let you out specifically knowing that you were facing a lot of time so that you could visit with your Mom and I understand that it’s difficult to watch a parent get sick and die. There’s nothing great about that. That’s why I gave you that opportunity but I also warned you that there would be serious consequences if you didn’t show up. Not only did you not show up, you were in another state and you had to be picked up by the U.S. Marshals. It’s not like you just say hey, I took too long and turned yourself in. You had to be shipped back here after that. You have had opportunities to rehabilitate yourself and clearly those have failed miserably because we’re back here in square one and you’re picking up huge charges and you had multiple firearms on your person. I just - - I don’t get why you would even do that. That’s not an addiction thing. That’s just criminal behavior and that’s just me being honest with you
{¶12} The trial court indicated that it had considered the
oral statements, facts of the offenses, appellant’s lengthy
criminal record, his behavior while on bond, the R.C. 2929.11
purposes and principles of sentencing, and the R.C. 2929.12
seriousness and recidivism factors. Ross App. No. 25CA10 & 25CA13 8
{¶13} In Case No. 24CR39/(Appellate Case No. 25CA10), the
trial court merged Counts One and Two and sentenced appellant to
(1) serve a mandatory minimum 11-year to a maximum 16 ½ years on
Count One (possession of cocaine in an amount equal to or
exceeding 100 grams), (2) serve a mandatory 10-year prison term
on Count Three (possession), and (3) serve a 30-month term on
each of Counts Four through Nine (weapon under disability) to be
served concurrent to one another but consecutive to Counts One
and Three and consecutive to the sentence imposed in Case No.
24CR136.
{¶14} In Case No. 24CR136/(Appellate Case No. 25CA13), the
trial court sentenced appellant to serve a mandatory minimum 10-
year prison term with a maximum indefinite 15-year prison term
on Count two (possession of cocaine in an amount equal to or
exceeding 27 grams but less than 100 grams), to be served
consecutively to the sentence imposed in Case No. 24CR39. The
court further advised that the appellant faced a mandatory two
to five-year postrelease control term. Thus, the court
sentenced appellant to serve an aggregate 33.5-39-year prison
term.
{¶15} The trial court also determined that consecutive
sentences are necessary to protect the public from future crime
and to punish the offender, and that consecutive sentences are
not disproportionate to the seriousness of the offender’s Ross App. No. 25CA10 & 25CA13 9
conduct and the danger the offender poses to the public. The
court further found 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 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 course of the
conduct adequately reflects the seriousness of the offender’s
conduct. Finally, the court found that the offender’s history
of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the
offender. This appeal followed.
I.
{¶16} In his sole assignment of error, appellant asserts
that the trial court committed plain error when it imposed
consecutive sentences, both with respect to ordering that the
sentences in Count One, Three, and Four through Nine be served
consecutively to one another, and with respect to ordering that
appellant’s sentence in Case No. 24CR39/(Appellate Case No.
25CA10) be served consecutively to appellant’s sentence in Case
No. 24CR136/(Appellate Case No. 25CA13), in violation of
appellant’s right to due process under the Fifth and Fourteenth
Amendments to the United States Constitution and of appellant’s
right against cruel and unusual punishment under the Eighth and Ross App. No. 25CA10 & 25CA13 10
Fourteenth Amendments to the United States Constitution and
Article I, Section 9 of the Ohio Constitution.
{¶17} When reviewing felony sentences, appellate courts
apply the standard set forth in R.C. 2953.08(G)(2). E.g., State
v. Jones, 2024-Ohio-1083, ¶ 16; State v. Nelson, 2023-Ohio-3566
(4th Dist.), ¶ 63; State v. Grashel, 2025-Ohio-580 (4th Dist.),
¶ 19. The statute requires appellate courts to “review the
record, including the findings underlying the sentence or
modification given by the sentencing court.” R.C.
2953.08(G)(1). In reviewing the record, “[t]he appellate
court’s standard for review is not whether the sentencing court
abused its discretion.” R.C. 2953.08(G)(2)(a). Instead, the
statute authorizes appellate courts to “increase, reduce, or
otherwise modify a sentence” “if it clearly and convincingly
finds either of the following”:
(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2). As we observed in Grashel, practically
speaking, R.C. 2953.08(G)(2) means that appellate courts
ordinarily “ ‘ defer to trial courts’ broad discretion in making
sentencing decisions,’ ” State v. Gwynne, 2023-Ohio-3851, ¶ 11
(lead opinion), quoting State v. Rahab, 2017-Ohio-1401, ¶ 10 Ross App. No. 25CA10 & 25CA13 11
(lead opinion); accord State v. Glover, 2024-Ohio-5195, ¶ 39 and
46 (lead opinion); State v. Creech, 2017-Ohio-6951, ¶ 11 (4th
Dist.), quoting State v. Venes, 2013-Ohio-1891, ¶ 21 (8th
Dist.)(“[t]he language in R.C. 2953.08(G)(2) establishes an
‘extremely deferential standard of review’ for the restriction
is on an appellate court, not the trial judge’ ”). In other
words, appellate court may increase, reduce, or otherwise modify
a sentence only if the court clearly and convincingly finds that
(1) “the record does not support the sentencing court’s
findings” under the enumerated statutes, R.C. 2953.08(G)(2)(a),
or (2) “the sentence is otherwise contrary to law,” R.C.
2953.08(G)(2)(b). The term “contrary to law” means “ ‘in
violation of statute or legal regulations at a given time.’ ”
State v. Jones, 2020-Ohio-6729, ¶ 34, quoting Black’s Law
Dictionary 328 (6th Ed.1990).
{¶18} Thus, an appellate court may increase, decrease, or
otherwise modify consecutive sentences only if it clearly and
convincingly finds that the record does not support the trial
court's findings or it clearly and convincingly finds that the
sentence is contrary to law. Glover at ¶ 42. “ ‘[C]lear and
convincing evidence’ is a degree of proof that is greater than
preponderance of the evidence but less than the beyond-a-
reasonable-doubt standard used in criminal cases.” Id. at ¶ 46.
Furthermore, “[n]owhere does the appellate-review statute direct Ross App. No. 25CA10 & 25CA13 12
an appellate court to consider the defendant's aggregate
sentence.” Instead, we limit our review to the trial court's
consecutive sentencing findings under R.C. 2929.14(C). Id. at ¶
43. Nor does the statute allow an appellate court to reverse or
modify a sentence because the trial court abused its discretion.
Id. at ¶ 45; Blanton at ¶ 32; State v. Hughes, 2025-Ohio-894, ¶
42 (4th Dist.).
{¶19} We initially recognize that at the sentencing hearing,
because appellant did not object to the court’s imposition of
consecutive sentences, he forfeited all but plain error. See
State v. Grate, 2020-Ohio-5584, ¶ 204; Grashel, 2025-Ohio-580,
at ¶ 22. A party asserting plain error must demonstrate that:
(1) an error occurred; (2) the error was obvious; and (3) a
reasonable probability that the error affected the outcome of
the proceeding. State v. Echols, 2024-Ohio-5088, ¶ 50.
Further, even when a defendant demonstrates that a plain error
or defect affected the defendant's substantial rights, the Ohio
Supreme Court has repeatedly emphasized that courts should
“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; e.g., State v. Bailey, 2022-Ohio-4407, ¶ 14 Ross App. No. 25CA10 & 25CA13 13
(“the plain-error doctrine is warranted only under exceptional
circumstances to prevent injustice”).
{¶20} However, consecutive sentences imposed without making
the requisite findings, or a sentence that is contrary to law,
will constitute plain error that an appellate court may
recognize. See State v. Gill, 2024-Ohio-2792, ¶ 48 (1st Dist.)
(“trial court's failure to make the required findings before
imposing consecutive sentences was plain error”); State v.
Price, 2024-Ohio-1641, ¶ 7 (4th Dist.) (“a sentence that is
contrary to law is plain error”). In the case at bar, we
conclude that no error occurred.
{¶21} R.C. 2929.41(A) provides that “a prison term . . .
shall be served concurrently with any other prison term,” except
as otherwise provided in specified statutes, like R.C.
2929.14(C). Relevant here, R.C. 2929.14(C)(4) allows a court to
require an offender “to serve the prison terms consecutively” if
the court makes the following findings: (1) “the consecutive
service is necessary to protect the public from future crime or
to punish the offender”; (2) “consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public”; and (3) one
of the three circumstances contained in R.C. 2929.14(C)(4)(a)-
(c) applies. Grashel at ¶ 24. Ross App. No. 25CA10 & 25CA13 14
{¶22} 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.
{¶23} A trial court must make the R.C. 2929.14(C)(4)
consecutive sentencing findings “at the sentencing hearing and
incorporate its findings into its sentencing entry.” State v.
Bonnell, 2014-Ohio-3177, ¶ 37. However, a court need not “state
reasons to support its findings” or “give a talismanic
incantation of the words of the statute, provided that the Ross App. No. 25CA10 & 25CA13 15
necessary findings can be found in the record and are
incorporated into the sentencing entry.” Id.; accord State v.
Nolan, 2024-Ohio-1245, ¶ 18 (4th Dist.); Grashel at ¶ 25.
{¶24} In the case sub judice, our review of the sentencing
hearing transcript and the sentencing entry reveals that the
trial court did make the appropriate R.C. 2929.14(C)(4)
findings. And we also note that appellant does acknowledge the
trial court did make the required findings to impose consecutive
sentences, both on the record at the sentencing hearing and in
its sentencing entry. Appellant also appears to acknowledge
that each sentence is within the statutory range.
{¶25} Appellant, however, contends that the trial court’s
R.C. 2929.14(C)(4) consecutive sentencing findings are not
supported by the record or are not appropriate for some of the
following reasons: (1) appellant’s “prior positive conduct while
incarcerated” illustrates that consecutive sentences are not
necessary to protect the public from future crime or to punish
the offender, (2) no evidence of “great or unusual” harm exists
from the offenses for which appellant was sentenced, and even if
appellant caused “some” harm, no evidence exists that the harm
was so great or unusual as to justify consecutive sentences, (3)
the trial court's finding that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct
and the danger he posed to the public is not supported by the Ross App. No. 25CA10 & 25CA13 16
record because of the disparity between the state’s sentencing
recommendation and the trial court’s total aggregate sentence,
(4) appellant has not been given an opportunity for drug
treatment as an alternative to incarceration, (5) the trial
court increased appellant’s sentence solely based on his failure
to appear for his sentencing hearing, and (6) his bond violation
did not outweigh the entirety of the record, facts, and
circumstances in this case to allow the trial court to impose
consecutive sentences “in such a draconian fashion,” more than
doubling appellant’s total aggregate sentence from appellee’s
initial recommendation, from an indefinite sentence of 14 to 16
½ years in prison to a total aggregate sentence of 33 to 43 ½
years in prison since the trial court ordered the sentences in
Case No. 24CR39 and Case No. 24CR136 to be served consecutively
to one another.
{¶26} Appellee, however, contends that appellant failed to
establish, by clear and convincing evidence, that the record
does not support consecutive sentences. Appellee argues that
the plea agreement sentence recommendation, that included a
minimum prison term of 14 years, necessarily would have included
consecutive sentences because both Count 1 and Count 2, each
with the longest possible individual sentence in the indictment
in Case No. 24CR39, require a mandatory 11-year sentence Ross App. No. 25CA10 & 25CA13 17
pursuant to R.C. 2925.11(C)(4)(f), 2929.03(C)(4)(g) and R.C.
2914.11(A)(1)(a).
R.C. 2925.11(C)(4)(f) provides:
If the amount of the drug involved equals or exceeds one hundred grams of cocaine, possession of cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term a maximum first degree felony mandatory prison term.
R.C. 2925.03(C)(4)(g) provides:
If the amount of the drug involved equals or exceeds one hundred grams of cocaine and regardless of whether the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term a maximum first degree felony mandatory prison term.
Finally, R.C. 2914.11(A)(1)(a) states:
For a felony of the first degree committed on or after March 22, 2019, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for the offense, the specific language of that section shall control in the determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be considered for purposes of the Revised Code as if it had been imposed under this division. Ross App. No. 25CA10 & 25CA13 18
{¶27} In State v. Smith, 2020-Ohio-5316 (4th Dist.), Smith
did not object to the imposition of consecutive sentences at the
sentencing hearing. Thus, like the case at bar, we reviewed the
consecutive sentences under the plain error standard. Id. at ¶
50. In Smith, we concluded that, because the trial court made
the statutory findings set forth in R.C. 2929.14(C)(4) at the
sentencing hearing and in the sentencing order, no plain error
existed in the imposition of consecutive sentences. Id.
Similarly, in State v. Grashel, 2025-Ohio-580 (4th Dist.), this
court held that "consecutive sentences imposed without making
the requisite findings or a sentence that is contrary to law
constitutes plain error," but found no error occurred when
proper findings were made. Id. at ¶ 23.
{¶28} With regard to appellant’s assertion that the record
fails to support the trial court’s finding that his conduct
resulted in “great or unusual harm,” appellant first argues
that, although he possessed a significant amount of cocaine and
had been charged with trafficking, no evidence existed of an
“actual transaction,” that “limited, or otherwise mitigated, the
impact of the offenses on the public and on society as a whole.”
As appellee points out, however, other courts who have addressed
this argument have found that, even without evidence of “actual
harm” presented in the record, drug trafficking poses a
“significant danger to the public, both directly and indirectly” Ross App. No. 25CA10 & 25CA13 19
regardless of whether the person consuming the drug is injured.
See State v. Richey, 2023-Ohio-336, ¶ 20 (12th Dist.). In
Richey, the Twelfth District also concluded that the danger only
increases when the drug trafficker continues to traffic drugs
even after being caught. Id. Similarly, in State v. Gaffney,
2025-Ohio-4963 (7th Dist.), the trial court noted Gaffney’s
prior drug convictions and the dangerous effects his drug
trafficking had on those who consume drugs and those indirectly
impacted. “While no evidence in the record showed a direct
serious physical or mental harm per se, the Richey case supports
the finding of a serious potential and perhaps inevitable harm
from continuing to traffic illegal drugs.” Gaffney at ¶ 103.
{¶29} Second, appellant contends that the harm underlying
his charges “should be compared to that of similar charges
brought against other defendants.” As appellee points out,
however, in Grashel we rejected the argument that review of
consecutive sentences should include a comparison to other
similar offenders. “The focus of this part of the statute is
the seriousness of the offender’s conduct and the danger that
the offender poses to the public. The statute does not instruct
courts to consider the seriousness of the offender’s conduct or
danger in relationship to similar offenders.” Grashel at ¶ 34.
Thus, we concluded in Grashel that R.C. 2929.14(C)(4) does not
require trial courts or reviewing courts “to engage in a Ross App. No. 25CA10 & 25CA13 20
comparative analysis of other cases.” Grashel at ¶ 23, citing
Glover, 2024-Ohio-5195, ¶ 59 (lead opinion).
{¶30} With respect to R.C. 2929.14(C)(4)(c), appellant
contends that his “history of conduct” demonstrates that he is
not a threat to the public because no trial court has ever
sentenced him to treatment rather than jail or prison.
Confusingly, he simultaneously argues that he has “already
responded favorably to lesser sanctions.” Finally, appellant
contends that the disparity between the appellee’s original
sentencing recommendation and the appellant’s final sentence
indicates that consecutive sentences are unwarranted, and argues
solely based on his failure to appear for sentencing as he
promised the court he would do so.
{¶31} In State v. Reed, 2025-Ohio-2753 (4th Dist.), the
parties entered into a jointly recommended sentence at the plea
hearing for a 9-month sentence. Similarly, Reed’s counsel also
convinced the trial court to allow Reed to report for sentencing
several weeks in the future so he could be with a terminally ill
relative. Like here, the trial court indicated its intention to
sentence Reed to serve a 9-month jail term “if Reed showed up
for sentencing.” When, however, Reed failed to appear for
sentencing, the court increased his sentence to 36 months.
Moreover, although Reed also picked up additional felony charges Ross App. No. 25CA10 & 25CA13 21
between the plea and sentencing, we note the similarities. Id.
at ¶ 14.
{¶32} Similarly, in State v. Dillon, 2025-Ohio-5394 (4th
Dist.), the parties entered a joint sentencing recommendation at
the plea hearing and Dillon pleaded guilty to a second-degree
felony count of aggravated drug trafficking in violation of R.C.
2925.03(A)(2). Id. at ¶ 4. After the trial court accepted
Dillon’s plea, counsel advised the court that Dillon awaited
surgery in July, and requested the court to allow Dillon to sign
the notice to appear for an August sentencing. After Dillon
signed a notice to appear at his August 14, 2024 sentencing, he
failed to appear. At the rescheduled sentencing hearing on
December 11, 2024, the trial court stated that it had considered
the oral statements, facts of the offenses, Dillon’s criminal
record, including his institutional record, the R.C. 2929.11(A)
principles and purposes of sentencing, and the R.C. 2929.12
recidivism factors. The court noted Dillon’s prior absence and
poor institutional report summary and thereupon sentenced Dillon
to (1) serve a mandatory minimum 6-year prison term up to a
maximum 9-year prison term, (2) serve a mandatory 18-month to 3-
year postrelease control term, and (3) pay costs. Id. at ¶ 8.
{¶33} In Dillon, this court concluded that Dillon’s failure
to appear at his initial sentencing hearing, despite signing a
notice to appear, signaled a lack of seriousness and cooperation Ross App. No. 25CA10 & 25CA13 22
with the court process. Id. at ¶ 17; See State v. Chandler,
2020-Ohio-164, ¶ 7 (1st Dist.)(defendant's failure to appear is
an appropriate recidivism factor for the trial court to consider
when determining whether to impose a maximum sentence); State v.
Nazir, 2024-Ohio-577, ¶ 26 (8th Dist.)(appropriate for a trial
court to consider a failure to appear when crafting a sentence);
State v. Taylor, 2012-Ohio-5733, ¶ 8 (8th Dist.)(“[D]efendant's
failure to appear at his sentencing hearing weighs in favor of
finding that he would not be amenable to community control
sanctions.”).
{¶34} Although in the case sub judice appellant challenges
consecutive rather than maximum sentences, we observed that the
trial court informed Dillon at the plea hearing that the joint
sentencing recommendation did not bind the court. Dillon at ¶
18. Also, as here, the trial court warned Dillon that if he
failed to appear for sentencing, the three-year recommendation
“is going to be out the window,” and both the court and counsel
warned Dillon of the consequences of a failure to appear.
Nevertheless, Dillon failed to attempt to contact the court and
failed to appear. Id. at ¶ 19. Finally, when Dillon argued
that his sentence was disproportionate because it differed from
the initial joint sentencing recommendation, we observed that it
is well settled that “[t]rial courts may reject plea agreements
and that they are not bound by a jointly recommended sentence.” Ross App. No. 25CA10 & 25CA13 23
Id. at ¶ 20, citing State v. Underwood, 2010-Ohio-1, ¶ 29,
citing State ex rel. Duran v. Kelsey, 2005-Ohio-3674, ¶ 6. See
also State v. Dye, 2025-Ohio-1973, ¶ 26 (4th Dist.)(written plea
form and counsel's statements can be used to discern whether
defendant forewarned that trial court not bound to follow joint-
sentencing recommendation).
{¶35} Appellant also asserts that his consecutive sentences
violate his Fifth, Fourteenth, and Eighth Amendment protections.
With respect to due process, the touchstone for determining
constitutional fairness is notice. In State v. Darrington,
2024-Ohio-2299 (4th Dist.), the trial court informed Darrington
that imposition of a jointly recommended sentence was contingent
upon Darrington “staying out of trouble, appearing for
sentencing, and abiding by the terms of his bond.” Id. at ¶ 26.
Darrington voiced understanding and agreed to these terms in
entering his pleas of guilt. We observed that Darrington's
failure to appear for his sentencing hearing, despite his lack
of transportation, voided the terms of his plea agreement and
released the trial court from any obligation it may have had to
impose the jointly recommended sentence. Id. With respect to
due process, we observed “[T]he touchstone for determining
constitutional fairness in plea submissions is notice.” Id. at
¶ 21, citing State v. Elliott, 2021-Ohio-424, ¶ 18 (1st Dist.). Ross App. No. 25CA10 & 25CA13 24
{¶36} Thus, when a trial court does not provide adequate
notice that it will not accept a stipulated plea, “the remedy is
to resentence the defendant in accordance with the
recommendation or allow the defendant to withdraw his plea.”
Id. at ¶ 19. In the case at bar, the trial court warned
appellant that he would “one hundred percent go along with that
recommended time” as long as appellant did not “get in trouble
and make sure you show up.” Thus, appellant did receive
adequate notice.
{¶37} With respect to the Eighth Amendment, it is well
established that sentences do not violate the constitutional
provisions against cruel and unusual punishment unless the
sentences are “so disproportionate to the offense as to shock
the moral sense of the community.” McDougle v. Maxwell, 1 Ohio
St.2d 68, 69 (1964); Dillon, 2025-Ohio-5394, at ¶ 21.3
{¶38} In State v. Grashel, 2025-Ohio-580, (4th Dist.) at ¶ 48
we wrote “‘The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids
only extreme sentences that are “grossly disproportionate” to
the crime.’” State v. Weitbrecht, 86 Ohio St.3d at 373, 715
N.E.2d 167 (1999), quoting Harmelin v. Michigan, 501 U.S. 957,
3 TheOhio Constitution in Section 9, Article 1 also states that “excessive bail should not be required; no excessive fines imposed; nor cruel and unusual punishments inflicted.” Ross App. No. 25CA10 & 25CA13 25
1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J.,
concurring in part and in judgment); accord State v. Hairston,
118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 13.
Moreover, “‘“only in the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads
to an inference of gross disproportionality”’ may a court
compare the punishment under review to punishments imposed in
Ohio or in other jurisdictions.” Hairston at ¶ 13, quoting
Weitbrecht at 373, fn. 4, 715 N.E.2d 167, quoting Harmelin, 501
U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring in part
and in judgment). “‘Cases in which cruel and unusual
punishments have been found are limited to those involving
sanctions which under the circumstances would be considered
shocking to any reasonable person.’” Weitbrecht at 371, 715
N.E.2d 167, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70,
203 N.E.2d 334 (1964), and citing State v. Chaffin, 30 Ohio
St.2d 13, 282 N.E.2d 46 (1972), paragraph three of the syllabus.
Thus, to establish that a sentence constitutes cruel and unusual
punishment, “‘the penalty must be so greatly disproportionate to
the offense as to shock the sense of justice of the community.’”
Weitbrecht at 371, 715 N.E.2d 167, quoting McDougle, 1 Ohio
St.2d at 70, 203 N.E.2d 334, and citing Chaffin, paragraph three
of the syllabus. “As a general rule, a sentence that falls
within the terms of a valid statute cannot amount to a cruel and Ross App. No. 25CA10 & 25CA13 26
unusual punishment.” (Citations omitted.) McDougle, 1 Ohio
St.2d at 69, 203 N.E.2d 334.
{¶39} Thus, “[a]s a general rule, a sentence that falls
within the terms of a valid statute cannot amount to a cruel and
unusual punishment.” Id.; accord State v. Stevens, 2017-Ohio-
8692, ¶ 10 (5th Dist.). “Because the individual sentences
imposed by the court are within the range of penalties
authorized by the legislature, they are not grossly
disproportionate or shocking to a reasonable person or to the
community's sense of justice and do not constitute cruel and
unusual punishment.” State v. Gwynne, 2021-Ohio-2378, ¶ 30,
citing State v. Hairston, 2008-Ohio-2338, ¶ 23; State v. Netter,
2024-Ohio-1068, ¶ 42 (4th Dist.).
{¶40} In the case sub judice, our review of the record
reveals that the trial court complied with all pertinent
sentencing requirements, reviewed and considered appellant's
extensive criminal history, appellant’s failure to appear at
sentencing in spite of the court’s willingness to permit
appellant to visit with his terminally ill mother on the
condition that he appear for his sentencing hearing, and the
sentencing hearing testimony. The court arrived at a sentence
within the statutory range. Consequently, we conclude that the
record does not clearly and convincingly fail to support the
trial court's imposition of consecutive sentences. R.C. Ross App. No. 25CA10 & 25CA13 27
2953.08(G)(2)(a) allows for modification or vacation only when
the appellate court “clearly and convincingly finds” that the
evidence does not support the trial court's findings. Glover,
2024-Ohio-5195, at ¶ 46; Hughes, 2025-Ohio-894, at ¶ 49. Thus,
in light of the foregoing, we do not clearly and convincingly
find that appellant's sentence is contrary to law, nor does
appellant’s challenge rise to the level of plain error.
{¶41} Accordingly, based upon the foregoing reasons, we
overrule appellant's assignment of error and affirm the trial
court's judgment.
JUDGMENT AFFIRMED. Ross App. No. 25CA10 & 25CA13 28
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period set forth in the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.