STATE OF OHIO, PLAINTIFF-APPELLEE, v. LARRY B. ELLISTON, DEFENDANT-APPELLANT.
CASE NO. 17-14-18
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
December 22, 2014
2014-Ohio-5628
PRESTON, J.
Appeal from Shelby County Common Pleas Court, Trial Court No. 13CR000311. Judgment Affirmed.
Scott A. Kelly for Appellant
Timothy S. Sell for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Larry B. Elliston (“Elliston“), appeals the June 2, 2014 judgment entry of sentence of the Shelby County Court of Common Pleas. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On November 14, 2013, the Shelby County Grand Jury indicted Elliston on five counts: Count One of robbery in violation of
{¶3} On November 19, 2013, Elliston appeared for arraignment and entered pleas of not guilty. (Doc. No. 6).
{¶4} On April 15, 2014, Elliston withdrew his pleas of not guilty and entered guilty pleas, under a written plea agreement, to Count One, amended to attempted robbery in violation of
{¶5} On May 29, 2014, the trial court sentenced Elliston to 36 months in prison on Count One and 11 months in prison on Count Two and ordered that Elliston serve the terms consecutively for an aggregate sentence of 47 months. (Doc. No. 94); (May 29, 2014 Tr. at 7). The trial court further ordered that Elliston serve the 47-month term of imprisonment consecutive to his 10-month term of imprisonment in another Shelby County, Ohio case. (May 29, 2014 Tr. at 7-8).
{¶6} On June 2, 2014, the trial court filed its judgment entry of sentence. (June 2, 2014 JE, Doc. No. 98).
{¶7} On June 27, 2014, Elliston filed his notice of appeal. (Doc. No. 107). He raises one assignment of error for our review.
Assignment of Error
The court erred by not making certain specific findings in accordance with
O.R.C. § 2929.14(C)(4) and thus the imposition of prison terms that run consecutively is improper.
{¶8} In his assignment of error, Elliston argues that the trial court failed to make the necessary findings under
{¶9} A trial court‘s sentence will not be disturbed on appeal absent a defendant‘s showing by clear and convincing evidence that the sentence is unsupported by the record; the sentencing statutes’ procedure was not followed or there was not a sufficient basis for the imposition of a prison term; or that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth under
{¶10} Clear and convincing evidence is that “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; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not, however, substitute its judgment for that of the trial court because the trial court is “‘clearly in the better position to judge the defendant‘s dangerousness and to ascertain the effect of the crimes on the victims.‘” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).
{¶11} “Except as provided in * * * division (C) of section
(4) * * * [T]he 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 , or2929.18 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.
{¶12}
{¶13} The trial court must state the required findings at the sentencing hearing prior to imposing consecutive sentences and incorporate those findings into its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A trial court “has no obligation to state reasons to support its findings” and is not “required to give a talismanic incantation of the words of the statute, provided
{¶14} The trial court made the three statutorily required findings before imposing consecutive sentences at the sentencing hearing and incorporated those findings into its sentencing entry. Specifically, at the sentencing hearing, the trial court said:
The Court also has considered and finds that consecutive sentencing is necessary to protect the public from future crime or to punish you, and that consecutive sentencing is not disproportionate to the seriousness of your conduct and to the danger that you pose to the public. The Court also finds that your history of criminal conduct demonstrates that consecutive sentencing is necessary to protect the public from future crimes by you.
(May 29, 2014 Tr. at 7). The trial court incorporated those findings into its sentencing entry by reciting the language of the statute. (See June 2, 2014 JE, Doc. No. 98).
{¶15} However, Elliston argues that the trial court‘s imposition of consecutive sentences was improper because its sentencing entry “contains a mere copy and paste of the statute” and does not “articulate the specific reasoning
{¶16} First, a trial court is not required to give a talismanic incarnation of the words of the statute, and an order of consecutive sentences will be upheld if we can discern that the trial court engaged in the correct analysis. Sharp at ¶ 50, citing Bonnell at ¶ 29. Because the trial court recited the exact language of
{¶17} Second, the trial court was not required to give reasons supporting its decision to impose consecutive sentences. See Bonnell at ¶ 27. Therefore, the trial court‘s verbatim recitation of the requisite findings under
{¶18} Elliston further argues that the trial court erred by failing to specify whether the trial court was imposing consecutive sentences to protect the public or punish the offender. In support of his argument, Elliston relies on State v. Wilkerson to aver that this court concluded that the trial court must find that consecutive sentences are necessary to either protect the public from future crime or to punish the offender. 3d Dist. Logan Nos. 8-13-06 and 8-13-07, 2014-Ohio-980, ¶ 11. Elliston‘s argument and reliance on Wilkerson are misguided. Indeed, a thorough review of Wilkerson reveals that we concluded that “the trial court satisfied the first required finding of
{¶19} “[U]nder certain conditions the word, ‘or,’ in a legislative enactment can be construed to read ‘and,’ and the word, ‘and,’ can likewise be construed to read ‘or.’ The word, ‘and,’ or, ‘or,’ will not be given its literal meaning where such meaning would do violence to the evident intent and purpose of the lawmakers and the other meaning would give effect to such intent.” In re Marrs’ Estate, 158 Ohio St. 95, 99 (1952). See also
{¶20} Elliston failed to clearly and convincingly demonstrate that the trial court erred by ordering that he serve his sentences consecutively. The trial court made the appropriate
{¶21} Elliston‘s assignment of error is overruled.
{¶22} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr