STATE OF OHIO, Plaintiff-Appellee -vs- ZACHARIAH R. BALL, Defendant-Appellant
Case No. 18-CA-1
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
July 19, 2018
2018-Ohio-2942
Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 16-CR-709. JUDGMENT: Affirmed.
For Plaintiff-Appellee
HAWKEN FLANAGAN Assistant Prosecutor 20 South Second Street, 4th Floor Newark, OH 43055
For Defendant-Appellant
JOSHUA BEDTELYON AARON JONES ROGER SOROKA 503 S. Front Street, Suite 205 Columbus, OH 43215
{¶1} Defendant-appellant Zachariah Ball [“Ball“] appeals his conviction and sentence after a negotiated guilty plea in the Licking County Court of Common Pleas.
Facts and Procedural History
{¶2} On February 1, 2017, the Licking County Grand Jury returned a two-count Indictment against Ball chаrging him with Operating a Vehicle with a Hidden Compartment Used to Transport a Controlled Substance, a felony of the 2nd degree in violation of
{¶3} Ball and the state agreed to a jointly recommended aggregate sentence of four years in prison. On December 12, 2017, a plea and sentencing hearing was conducted. Ball tendered pleas of guilty to Counts One and Two of the Indictment, as charged.
{¶4} The trial court imposed a sentence of four years in prison on Count One and two years in prison on Count Two. The trial court ordered the sentences in Counts One and Two to be served consecutively, for an aggregate term of six years.
Assignments of Error
{¶5} Ball raises two assignments of error,
{¶6} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES AS THE RECORD DOES NOT SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES, AND THE SENTENCE IS CONTRARY TO LAW.
{¶7} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES AS COUNTS ONE AND TWO OF THE INDICTMENT SHOULD HAVE MERGED FOR SENTENCING PURPOSES.”
{¶8} In his First Assignment of Error Ball challenges the imposition of the consecutive terms on the ground that the trial court failed to make the findings required by
Standard of Appellate Review.
{¶9} We review felony sentences using the standard of review set forth in
{¶10} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court‘s findings under relevant statutes, or (2) the sentence is otherwise contrary to law.
{¶11} Clear and convincing evidence is that evidence “which will provide 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, 120 N.E.2d 118 (1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient
{¶12} In addition, as has been noted,
If the court has properly made the required findings in ordеr to impose consecutive sentences, we must affirm those sentences unless we “clearly and convincingly” find “[t]hat the record does not support the court‘s findings [.]”
It is important to understand that the “clear and convincing” standard applied in
R.C. 2953.08(G)(2) is not discretionary. In fact,R.C. 2953.08(G)(2) makes it clear that “[t]he appellate court‘s standard for review is not whether the sentencing court abused its discretion.” As a practical consideration, this means that appellate courts are prohibited frоm substituting their judgment for that of the trial judge.It is also important to understand that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court‘s findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.
State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453, ¶19-21. Accord, State v. Creech, 4th Dist., Scioto No. 16CA3730, 2017-Ohio-6951, ¶11; State v. Withrow, 2nd Dist. Clark No. 2015-CA-24, 2016-Ohio-24, ¶22; State v. Mason, 12th Dist. Butler No. CA2014-10-217, 2015-Ohio-1931, ¶8; State v. Taylor, 5th Dist. Holmes No. 12 CA 18, 2013-Ohio-5751, ¶69; State v. Higginbotham, 10th Dist. Franklin Nos. 17AP-147, 17AP-150, 2017-Ohio-7618, ¶11; State v. Moss, 11th Dist. Ashtabula No. 2016-A-0046, 2017-Ohio-0046, ¶22.
ISSUE FOR APPEAL.
Whether the record does not support the trial court‘s findings under relevant statutes, or the sentence is otherwise contrary to law.
R.C. 2929.13(B).
{¶13}
R.C. 2929.13(D).
{¶14}
{¶15}
{¶16} In the case at bar, Ball pled guilty to Operating a Vehicle with a Hidden Compartment Used to Transport a Controlled Substance, a felony of the 2nd degree in violation of
R.C. 2929.14 (B)(2)(e).
{¶17}
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶18} In Ohio, there is a statutory presumption in favor of concurrent sentences for most felony offenses.
{¶19}
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 servicе 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.
{¶20} Thus, in order for a trial court to impose consecutive sentences the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. The court must also find that conseсutive sentences are not disproportionate to the offender‘s conduct and to the danger the offender poses to the public. Finally, the court must make at least one of three additional findings, which include that (a) the offender committed one or more of the offenses while awaiting trial or sentencing, while under a sanction imposed under
{¶21} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:
In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.
{¶22} Furthermore, the sentencing court is not required to recite “a word-for-word recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Id. A failure to make the findings required by
{¶23} In this case, the record does support a conclusion that the trial court made all of the findings required by
{¶24} The trial court made this finding. Change of Plea and Sentencing, Dec 12, 2017 at 19. The findings are reflected in the court‘s sentencing entry. Judgment Entry, filed Dec. 12, 2017 at 2.
{¶25} The trial court made no finding on this factor in Ball‘s case.
{¶27} The trial court made this finding. Change of Plea and Sentencing, Dec 12, 2017 at 18; Judgment Entry, filed Dec. 12, 2017 at 2.
{¶28} We find that the record in the case at bar clearly and convincingly supports the trial court‘s findings under
R.C. 2929.20.
{¶29}
R.C. 2929.11 and R.C. 2929.12.
{¶30} The Marcum court further noted,
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review thоse sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
146 Ohio St.3d 516 at ¶23, 2016-Ohio-1002, 59 N.E.3d 1231.
{¶32}
{¶33} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court severed the judicial-fact-finding portions of
{¶35} Thus, post-Foster, “there is no mandate for judicial fact-finding in the general guidance statutes. The cоurt is merely to ‘consider’ the statutory factors.” Foster at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061, 2006 WL 2257068; State v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753, 2006 WL 1495258 at ¶ 7-8. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions.
{¶36} There is no requirement in
{¶37} In the case at bar, the trial court considered the purposes and principles of sentencing under
{¶38} The trial court has no obligation to state reasons to support its findings. Nor is it required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.
{¶39} Ball was sentenced for a felony of the second degree. The sentencing range for a second-degree felony is two, three, four, five, six, seven, or eight years.
{¶40} Upon review, we find that the trial court‘s sentencing on the charges complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in
{¶41} While Ball may disagree with the weight given to these factors by the trial judge, Ball‘s sentence was within the applicable statutory range for a felony of the second degree and a felony of the third degree and therefore, we have no basis for concluding that it is contrаry to law.
{¶42} Ball‘s First Assignment of Error is overruled.
II.
{¶43} In his Second Assignment of Error, Ball contends that Counts One and Two are allied offenses of similar import and must be merged for sentencing.
Standard of Appellate Review.
{¶44} In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the Ohio Supreme Court examined a case where the defendant was convicted of multiple offenses pursuant to a guilty plea. The defendant appealed and argued for the first time on appeal that some of the convictions should have merged for sentencing. Id. at ¶ 11. The matter was certified as a conflict and presented to the Ohio Supreme Court. In making its decision, the Court clarified the difference between waiver and forfeiture as it pertains to allied offenses. Id. at ¶ 19-21.
{¶45} The Court rejected the argument that by entering a guilty plea to offenses that could be construed to be two or more allied offenses of similar import, the accused waives the protection against multiple punishments under
{¶46} The accused may raise a forfeited claim on appeal through Crim.R. 52(B). Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” The Court held in Rogers:
An accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the prоceeding and reversal is necessary to correct a manifest miscarriage of justice. Accordingly, an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; absent that showing, the accused cannot demonstrate that the trial court‘s failure to inquire whether the convictions merge for purposes оf sentencing was plain error.
2015-Ohio-2459, ¶ 3, 143 Ohio St.3d 385. The Court in Rogers reaffirmed that even if an accused shows the trial court committed plain error affecting the outcome of the proceeding, the appellate court is not required to correct it. Id. at ¶ 23. The Supreme Court stated:
[W]e have “admonish[ed] courts to notice plain error ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.‘” (Emphasis added.) Barnes at 27, 94 Ohio St.3d 21, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
Rogers at ¶ 23.
{¶47} Because Ball did not raise the mergеr issue at trial, the plain-error standard applies.
ISSUE FOR APPEAL.
Whether the trial court committed plain error affecting the outcome of the proceedings resulting in a manifest miscarriage of justice by failing to merge the offenses was required to merge the offenses in Ball‘s case.
{¶48}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offеnses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
1. In determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must evaluate three separate factors-the conduct, the animus, and the import.2. Two or more offenses of dissimilar import exist within the meaning of
R.C. 2941.25(B) when the defendant‘s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.
Ruff, at syllabus. The Court further explained,
A trial court and the reviewing court on appeal when considering whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance-in other words, each offense caused separate, identifiable harm, (2) the offеnses were committed separately, and (3) the offenses were committed with separate animus or motivation.* * *
An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
{¶51} In the case at bar, the facts as agreed to by Ball reveal that Ball had a small bag of marijuana on the seat of his car at the time he was stopped for a traffic violation. Change of Plea and Sentencing, Dec. 12, 2017 at 9-10. Upon further investigation, a hidden compartment containing two bags of marijuana weighing 940 grams of marijuana was located. Id. At 10. Ball led the officers to his home and consented to the subsеquent search. The officers located a hole in the drywall behind a picture that contained 2,452 grams of marijuana and $3,360.00. Change of Plea and Sentencing, Dec. 12, 2017 at 11.
{¶52} One can possess marijuana without designing, building or fabricating a vehicle with a hidden compartment. Therefore, the offenses are of dissimilar import. The act of concealing marijuana in the walls of the home was committed separately from any transportation of the drugs. The marijuana located in Ball‘s residence was separаte and distinct from the marijuana located within the hidden compartment on Ball‘s vehicle.
{¶54} There may be instances when a court‘s failure to merge allied offenses can constitute plain error, but this case does not present one of those instances. Ball failed to demonstrate any probability that he has, in fact, been convicted of allied offenses of similar import committed with the same conduct and with the same animus, and he therefore failed to show any prejudicial effect on the outcome of the proceeding. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 25 (2015)
{¶55} Ball‘s Second Assignment of Error is overruled.
By Gwin, J.,
Wise, John, P.J., and
Baldwin, J., concur