State v. Wickham

2025 Ohio 874

• Court: Ohio Court of Appeals
• Decided: March 14, 2025
• Docket: 24CA000019
• Status: Published

Opinion

[Cite as State v. Wickham, 2025-Ohio-874.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. Michael D. Hess, J. : Hon. Jason P. Smith, J. -vs- : : Judges Hess and Smith : Sitting by Assignment by the : Supreme Court of Ohio : HARVEY WICKHAM, III : Case No. 24CA000019 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Guernsey Court of Common Pleas, Case No. 23CR000057

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 14, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON R. FARLEY CHRIS BRIGDON 627 Wheeling Avenue 8138 Somerset Road Cambridge, OH 43275 Thornville, OH 43076 Smith, J.

{¶ 1} Defendant-Appellant Harvey Wickham, III appeals the April 4, 2024

judgment of conviction and sentence of the Guernsey County Court of Common Pleas.

Plaintiff-Appellee is the State of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In September 2022, Guernsey County Sheriff's detectives learned from

confidential sources that Wickham was selling methamphetamines from his home. The

following month, Detective Masenelli observed an individual known to him as a frequent

drug user going in and out of Wickham's home. Detectives later obtained Facebook

messages wherein Wickham negotiated the sale of narcotics. Controlled buys were also

conducted and Wickham sold methamphetamine to a confidential informant. On March

1, 2023, a search warrant was executed at Wickham's home yielding 68 grams of

methamphetamine, 26 tablets of oxycodone, 11 tablets of clonazolam, weapons, and

$3,812 in cash.

{¶ 3} During an interview with Sheriff's Office Detective Carpenter, Wickham

admitted to both possessing and selling methamphetamine.

{¶ 4} As a result of these events, on March 3, 2023, the Guernsey County Grand

Jury returned an indictment charging Wickham as follows:

{¶ 5} Count one: Aggravated possession of drugs, a felony of the second degree.

This count included a forfeiture specification pertaining to $3812 cash as well as a firearm

specification. {¶ 6} Count two: Aggravated trafficking in drugs, a felony of the second degree.

This count also included a forfeiture specification pertaining to $3812 cash as well as a

firearm specification.

{¶ 7} Counts three and four: Aggravated possession of drugs, felonies of the fifth

degree.

{¶ 8} On January 29, 2024, following plea negotiations with the state, Wickham

agreed to enter guilty pleas to counts two, three, and four as well as the cash forfeiture

specification in count two. In exchange, the state agreed to dismiss count one and its

specifications and the firearm specification contained in count two. The state also agreed

to dismiss a bill of information containing one count of aggravated possession of drugs.

The trial court accepted Wickham's pleas and ordered a presentence investigation.

{¶ 9} Wickham's sentencing hearing took place on April 4, 2024. On count two,

aggravated trafficking in drugs, Wickham was sentenced to a mandatory indefinite prison

term of four to six years. On counts three and four, aggravated possession of drugs,

Wickham was sentenced to nine-month prison terms. The trial court ordered these terms

to be served consecutively to each other and consecutive to the sentence imposed on

count one for an aggregate indefinite prison term of five and a half to seven and a half

years.

{¶ 10} Wickham filed a motion for delayed appeal which this court granted.

Wickham raises two assignments of error as follow:

I

{¶ 11} "SHOULD THIS COURT REVERSE THE TRIAL COURT'S DECISION TO

IMPOSE A SENTENCE OF 4 TO 6 YEARS ON COUNT 2, 9 MONTHS ON COUNT 3, AND 9 MONTHS ON COUNT 4, TO RUN CONSECUTIVELY FOR A TOTAL OF 5 ½ TO

7 ½ YEARS, BECAUSE, THE SENTENCE WAS IN CONTRAVENTION OF THE

SENTENCING STATUTES R.C. §2929.11 AND R.C. §2929.12?"

II

{¶ 12} "WAS THE TRIAL COURT'S DECISION TO IMPOSE CONSECUTIVE

SENTENCES BETWEEN COUNTS 2, 3, AND 4 TO COUNT 5 IN CONTRAVENTION OF

R.C. 2929.14(C)(4)?"

{¶ 13} In his first assignment of error, Wickham argues the trial court failed to

properly consider R.C. 2929.11 and 2929.12 before imposing sentence. We disagree.

Applicable Law

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

2953.08. State v. Marcum, 2016-Ohio-1002, ¶ 22; State v. Howell, 2015-Ohio-4049, ¶ 31

(5th Dist.). Subsection (G)(2) sets forth this court's standard of review as follows:

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not

whether the sentencing court abused its discretion. The appellate

court may take any action authorized by this division 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.

{¶ 15} "Clear and convincing evidence is 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." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶ 16} "A sentence is not clearly and convincingly contrary to law where the trial

court 'considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.' " State v. Morris, 2021-Ohio-2646, ¶ 90 (5th Dist.),

quoting State v. Dinka, 2019-Ohio-4209, ¶ 36 (12th Dist.).

Wickham's Argument

{¶ 17} Wickham does not dispute that the sentences imposed herein were within

the appropriate statutory ranges. He instead argues the trial court did not properly consider R.C. 2929.11 and 2929.12 because it failed to "optimally" apply the factors to

his case. Wickham argues the result is a sentence that fails to represent the minimum

sanctions necessary to protect the public.

{¶ 18} Wickham asks this court to reevaluate the trial court's findings pursuant to

R.C. 2929.11 and R.C. 2929.12 and substitute our judgment for that of the trial court. We

may not, however, undertake such an analysis. R.C. 2953.08(G)(2)(b) "does not provide

a basis for an appellate court to modify or vacate a sentence based on its view that the

sentence is not supported by the record under R.C. 2929.11 and 2929.12." State v. Jones,

2020-Ohio-6729, ¶ 39. It is well established that a trial court "need only consider the

sentencing factors pursuant to R.C. 2929.11 and 2929.12 and need not make findings in

support of those factors to impose a sentence that is not considered contrary to law."

State v. Ongert, 2016-Ohio-1543, (8th Dist.) ¶ 12.

{¶ 19} The record here reflects the trial court considered the purposes and

principals of sentencing pursuant to R.C. 2929.11 and the seriousness and recidivism

factors pursuant to R.C. 2929.12 in great detail both on the record and in its sentencing

judgment entry. Further, the trial court properly imposed post-release control and imposed

sentences within the statutory guidelines. Transcript of sentencing (T.) 31-36, Judgment

Entry of Sentence, April 4, 2024. Wickham's sentence is therefore not contrary to law.

Accordingly, the first assignment of error is overruled.

{¶ 20} In his second assignment of error, Wickham argues his consecutive

sentences are unsupported by the record. We disagree.

Applicable Law {¶ 21} This court reviews felony sentences using the standard of review set forth

in R.C. 2953.08. State v. Marcum, 2016-Ohio-1002 ¶ 22; State v. Howell, 2015-Ohio-

4049, ¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's standard of review as

follows:

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for

resentencing. The appellate court's standard for review is not

whether the sentencing court abused its discretion. The appellate

court may take any action authorized by this division if it clearly and

(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

(b) The sentence is otherwise contrary to law.

{¶ 22} R.C. 2929.14(C)(4) governs consecutive sentences. That section states: (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} "R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court's

consecutive-sentence findings, and the trial court's findings must be upheld unless those

findings are clearly and convincingly not supported by the record." State v. Gwynne,

2023-Ohio-3851, ¶ 5. "Clear and convincing evidence is 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." Cross v. Ledford, 161 Ohio St. 469, (1954), paragraph three of the

syllabus.

{¶ 24} When imposing consecutive sentences, a trial court must state the required

findings at the sentencing hearing. State v. Bonnell, 2014-Ohio-3177, ¶ 29. Because a

court speaks through its journal, the court should also incorporate its statutory findings

into the sentencing entry. Id. However, a word-for-word recitation of the language of the

statute is not required. Id. As long as the reviewing court can discern the trial court

engaged in the correct analysis and can determine the record contains evidence to

support the findings, consecutive sentences should be upheld. Id.

{¶ 25} In his appellate brief at 14, Wickham concedes the trial court recited the

requisite statutory findings on the record regarding consecutive sentences. He argues

however, that the record does not support the trial court's imposition of consecutive

sentences. Wickham points to evidence he presented at the sentencing hearing including

(1) his minimal criminal record; (2) consistent employment history; (3) the fact that his

drug involvement arose as a result of personal tragedies rather than a lifelong pattern of criminality; (4) his genuine remorse evidenced through his successful participation in drug

rehabilitation; and (5) the support of his family. Transcript of sentencing hearing (T.) 11-

16.

{¶ 26} The sentencing transcript reflects the trial court considered all of these

points. T. 31-33. The record further reflects the trial received and studied a presentence

investigation report, and heard statements from the prosecutor and defense counsel. T.

5, 6-10, 11-16. The trial court found despite Wickham's post-indictment efforts, he had

nonetheless engaged in organized criminal activity. T. 33-35 The court noted the

seriousness of Wickham's conduct, the amount of drugs, and the fact that the traffic in

and out of his home was "busier than Kroger's on a Saturday morning." T. 30. The court

advised Wickham that the sentence imposed must consider punishment and the need to

deter Wickham and others, a point that is "[s]ometimes . . .forgotten in the criminal justice

system." T. 31. The trial court then found consecutive sentences were necessary to

punish Wickham, protect the public from future crime, were not disproportionate to

Wickham's conduct, that the offenses were part of one or more courses of conduct, and

the harm caused was so great or unusual that a single prison term would not adequately

reflect the seriousness of the offenses. T. 39.

{¶ 27} Given the forgoing, we find the trial court's imposition of consecutive

sentences is supported by the record and is neither contrary to law, nor based on

improper considerations. Accordingly, Wickham's second assignment of error is

overruled. {¶ 28} The judgment of conviction and sentence of the Guernsey County Court of

Common Pleas is affirmed.

By Smith, J.,

Baldwin, P.J. and

Hess, J. concur.