STATE OF OHIO v. MICHAEL D. JOHNSON
CASE NO. 1-20-48, 1-20-49
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
May 24, 2021
[Cite as State v. Johnson, 2021-Ohio-1768.]
MILLER, J.
Appeals from Allen County Common Pleas Court, Trial Court Nos. CR2018 0246 and CR2019 0116. Judgment Affirmed in Case No. 1-20-49. Judgment Affirmed and Cause Remanded in Case No. 1-20-48.
Anthony S. VanNoy for Appellant
Jana E. Emerick for Appellee
{1} Defendant-appellant, Michael D. Johnson, appeals the September 28, 2020 judgments of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.
Background
{2} On June 13, 2018, the Allen County Grand Jury indicted Johnson on seven counts in case number CR2018 0246: Count One of possession of cocaine in violation of
{3} On March 14, 2019, the Allen County Grand Jury indicted Johnson on two counts in case number CR2019 0116: Count One of possession of cocaine in violation of
{4} A change of plea hearing was held on August 4, 2020. With respect to case number CR2018 0246, Johnson withdrew his not guilty pleas and entered guilty pleas to Counts One and Two and the firearm specifications associated with Count One. In exchange, the State agreed to recommend dismissal of Counts Three through Seven and the MDO specification associated with Count One. With respect to case number CR2019 0116, Johnson withdrew his not guilty pleas and entered guilty pleas to the counts and specifications in the indictment. In exchange, the State agreed to make no sentencing recommendation. The trial court accepted Johnson‘s guilty pleas and entered findings of guilty. With respect to case number CR2018 0246, the trial court dismissed Counts Three through Seven and the MDO specification associated with Count One. The trial court filed its judgment entries of conviction on August 5, 2020.1
{5} The sentencing hearing was held on September 28, 2020. In case number CR2018 0246, the trial court sentenced Johnson to 5 years in prison on
{6} On October 28, 2020, Johnson filed notices of appeal. He raises two assignments of error for our review, which we will address together.
Assignment of Error No. I
The trial court erred in finding that Appellant committed his offenses for hire or as part of organized criminal activity.
Assignment of Error No. II
The court erred in sentencing Appellant to serve consecutive sentences.
{7} Johnson raises two assignments of error in which he claims the trial court erred when imposing his sentences. In his first assignment of error, Johnson argues the trial court erred by finding that he committed his trafficking-in-cocaine offenses for hire or as part of organized criminal activity. Accordingly, Johnson contends the trial court erred by fashioning a sentence in accordance with its
Standard of Review
{8} Under
Relevant Authority: Felony Sentencing
{9} “‘Trial courts have full discretion to impose any sentence within the statutory range.‘” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 9, quoting State v. Nobel, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. A sentence imposed within the statutory range is not contrary to law as long as the trial court
{10}
{11} “In accordance with these principles, the trial court must consider the factors set forth in
{12} Recently, in State v. Jones, ___ Ohio St.3d ___, 2020-Ohio-6729, the Supreme Court of Ohio clarified the proper scope of review of felony sentences imposed in cases, like the present case, where the defendant‘s appeal challenged the trial court‘s application of
Analysis: Felony Sentencing
{13} In the instant case, Johnson was convicted of one count of possession of cocaine in violation of
{14} Furthermore, the record affirmatively reflects that the trial court considered
{15} Nevertheless, Johnson argues that the trial court erred by finding that he committed the offenses for hire or as part of an organized criminal activity. Johnson contends that the record does not indicate that he participated with other persons in the drug trade in a manner that made his conduct more serious than other possession-of-drug offenses. However, in light of the Supreme Court of Ohio‘s holding in Jones, we could not vacate or modify Johnson‘s sentence on that basis. See State v. Denoyer, 3d Dist. Allen No. 1-20-34, 2021-Ohio-886, ¶ 29 (finding that, pursuant to Jones,
{16} However, notwithstanding Jones, after reviewing the record, we find that Johnson‘s argument is misplaced. At the sentencing hearing, the trial court did offer a commentary in which it noted that drug offenses, when compared to some other criminal offenses, involve organized criminal activity in a general manner. However, it is clear from a review of the transcript that the trial court did not assign any undue seriousness to Johnson‘s involvement in the drug trade. Further, even
{17} Accordingly, Johnson‘s first assignment of error is overruled.
Relevant Authority: Consecutive Sentencing
{18} In his second assignment of error, Johnson argues that the trial court erred by imposing consecutive sentences. “Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.”
(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, 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.
{19}
{20} 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 that the necessary findings can be found in the record and are incorporated into the sentencing entry.” Bonnell at ¶ 37.
Analysis: Consecutive Sentencing
{21} Johnson does not argue that the trial court failed to make the requisite consecutive-sentencing findings under
* * * I‘m finding that the consecutive sentences are necessary in the way that I‘ve stated them because I find it‘s to protect the public from future crime and it‘s punishment for the defendant. I find that consecutive sentences as I‘ve arranged them are not disproportionate to the seriousness of the conduct and the danger to the public and I also find that the multiple offenses were committed as part of a course of conduct and that the harm caused is so great and unusual that no single prison term for any of the offenses would adequately punish the defendant and would adequately reflect the seriousness of his conduct. So, all the counts are consecutive.
(Sept. 28, 2020 Tr. at 21-22). The trial court incorporated those findings into its sentencing entries. In its sentencing entry, the trial court stated:
Pursuant to
R.C. 2929.14(C)(4) the Court orders that consecutive sentences are made necessary to protect the public from future crime or to punish the defendant, and that consecutive sentences are not disproportionate to the seriousness of the defendant‘s conduct and to the danger the defendant poses to the public, and because:- At least two of the multiple offenses were committed as part of one or more courses or 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 defendant‘s conduct.
- The defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.
(Case No. CR2018 0246, Doc. No. 91); (Case No. CR2019 0116, Doc. No. 35). Accordingly, the record reflects that the trial court made the appropriate
{24} However, a review of the record reveals that the trial court supported its finding that consecutive sentences were necessary to protect the public from future crime. First, the trial court acknowledged that the crimes of which Johnson was convicted in the two cases reflected a recurring pattern of criminal conduct over a span of approximately two years. (Sept. 28, 2020 Tr. at 12-13). Specifically, the trial court noted that a search warrant was issued for Johnson‘s residence in November 2016, leading to the charges in case number CR2018 0246, but Johnson was again found with drugs and a weapon at his residence in June 2018, leading to the charges in case number CR2019 0116. (Id.). The trial court also stated that Johnson “demonstrates a pattern of substance abuse” which is one of the factors that relates to the likelihood to commit future crimes. (Id. at 18). Further, the PSI indicates that Johnson has a criminal history which includes drug- and substance-
{25} Accordingly, Johnson‘s second assignment of error is overruled.
Conclusion
{26} Finally, we note that the State, in a footnote in its appellee brief, alleges the trial court erred in case number CR2018 0246 by indicating in the judgment entries of sentence and conviction that Johnson pleaded to and was found guilty of possession of cocaine in violation of
{27} Accordingly, we affirm the trial court‘s judgment in case number CR2019 0116. With respect to case number CR2018 0246, we affirm the judgment of the trial court, but remand the matter for the limited purpose of allowing the trial court to correct its clerical errors by issuing appropriate nunc pro tunc entries.
{28} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court. However, we remand case number CR2018 0246 for further proceedings consistent with this opinion.
Judgment Affirmed in Case No. 1-20-49
Judgment Affirmed and Cause Remanded in Case No. 1-20-48
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr