State v. MooreState v. Moore
Decided: October 13, 2023
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
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MAYLE, J.
{¶ 1} Appellant, Jeffrey Moore, appeals the November 8, 2022 judgment of the Erie County Court of Common Pleas sentencing him to an aggregate prison term of 11 years. For the following reasons, we affirm.
{¶ 2} This is the third time Moore‘s case has been before us.1 In State v. Moore, 2021-Ohio-765, 168 N.E.3d 921 (6th Dist.) (”Moore I“), we affirmed Moore‘s six convictions of having weapons while under disability in violation of
{¶ 3} In April 2021, the trial court held a resentencing hearing and sentenced Moore for one conviction each of weapons under disability and possession of cocaine. Following resentencing, in State v. Moore, 6th Dist. Erie No. E-21-041, 2022-Ohio-3504 (”Moore II“), we determined that the trial court failed to make the findings required by
{¶ 4} In November 2022, at Moore‘s third sentencing hearing, the trial court again sentenced Moore for one conviction each of weapons under disability and possession of cocaine. The focus of this hearing was on the findings required for the court to impose consecutive sentences.
{¶ 5} Moore‘s attorney asked the court to impose concurrent, non-maximum sentences and pointed out that (1) Moore was not on probation or postrelease control at the time of the offenses; (2) there was not an “identified victim” of his offense (beyond society at large); (3) his multiple offenses did not present “any additional threat of harm[;]” (4) although Moore had a “significant” criminal history, his convictions were “based on the fact that he has struggled with substance abuse issues for most of his adult life” and substance abuse was a “significant factor” in the offenses in this case; (5) he did not have much of a juvenile record and “substance abuse certainly played a role in * * *” his adjudications; and (6) his convictions in this case were not for violent crimes.
{¶ 6} In its argument, the state said that the court considered everything required to make a determination about consecutive sentences at the original sentencing hearing, so the prosecutor “incorporate[d] any prior remarks that were said regarding the sentencing that would be appropriate * * *.” In its remarks at the first sentencing, the
{¶ 7} When Moore spoke, he complained that none of his attorneys had addressed two legal issues that he believed made his convictions improper, including being charged with a fifth-degree felony but being convicted of a second-degree felony and never seeing a copy of the search warrant police used to obtain the evidence against him. The trial court explained these issues to Moore before proceeding with the sentencing, and pointed out that Moore‘s legal concerns “could have been addressed with the Court of Appeals twice * * *[,]” but he did not raise them in Moore I or Moore II.
{¶ 8} Before imposing sentence, the court explained to Moore the factors it had to consider under
{¶ 9} The court went on to determine that consecutive sentences were necessary to protect the public from future crime by Moore and to punish Moore, were not disproportionate to the seriousness of Moore‘s conduct, and based on Moore‘s history of criminal conduct, were necessary to protect the public from future crime by Moore. The court explained the reasoning behind its decision: “You‘ve been trafficking drugs in the past in this community and you were in possession of mandatory drugs [sic] this time. No indication that it was for personal use when it was that amount. * * * You were also in possession of weapons at the time and that‘s violence.”
{¶ 10} The court sentenced Moore to 36 months in prison for a single weapons-under-disability conviction and eight years for the possession conviction. The court ordered Moore to serve the sentences consecutively for an aggregate term of 11 years.
{¶ 12} Moore now appeals, raising one assignment of error:
The trial court erred in imposing consecutive sentences upon Mr. Moore, and further erred by not considering whether the aggregate length of the consecutive sentence imposed was disproportionate to the offense, resulting in a sentence contrary to law[.]
II. Law and Analysis
{¶ 13} In his assignment of error, Moore argues that the trial court erred by imposing consecutive sentences because the record lacks evidentiary support for the court‘s conclusions. Specifically, he claims that (1) his lengthy criminal record is the only finding supported by the record, and his record, standing alone, is insufficient to show that additional prison time would “meaningfully protect the public from anything[;]” (2) the trial court inappropriately equated “constructive possession” of a firearm to “actual violent crime[;]” (3) Moore‘s “refusal to accept responsibility * * *” for his crimes has “no bearing” on whether consecutive sentences are appropriate; and (4)
{¶ 14} The state responds that (1) the trial court made all of the findings required by
{¶ 15} We review sentencing challenges under
(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) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code , whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 16} We review a trial court‘s findings related to consecutive sentences de novo. State v. Gwynne, Slip Opinion No. 2022-Ohio-4607, --- N.E.3d ----, ¶ 27.3
{¶ 17} In determining whether consecutive sentences are clearly and convincingly contrary to law under
{¶ 19} A sentencing court must make its findings under
{¶ 20} In this case, the trial court made all three findings at the sentencing hearing and incorporated its consecutive-sentence findings into the judgment entry.4 Moore‘s
{¶ 21} Moore‘s arguments about the strength of the evidence boil down to two main points. First, he contends that the trial court‘s findings that consecutive sentences are necessary to protect the public are unsupported by the record because the trial court mistakenly believed that his weapons-under-disability conviction was an offense of violence and a criminal record, standing alone, is insufficient to show that additional prison time will protect the public. Second, he argues that the trial court failed to consider whether the aggregate sentence was proportionate to the seriousness of his conduct and the danger he poses to the public.
{¶ 22} Turning to the trial court‘s necessity findings, we agree with Moore that having a gun under a legal disability, as defined by
{¶ 23} More importantly, Moore‘s history of criminal convictions and juvenile adjudications is sufficient to support the trial court‘s necessity findings. “[W]hether consecutive sentences are necessary to protect the public is completely dependent on whether the defendant‘s criminal history demonstrates the need for the defendant to be incapacitated by a lengthy term of incarceration.” (Emphasis deleted.) Gwynne, Slip Opinion No. 2022-Ohio-4607, at ¶ 15. Contrary to the trial court‘s findings, the information complied by the probation department shows that Moore has a record of juvenile adjudications beginning when he was 11 years old. His juvenile record includes delinquency findings for assault and aggravated robbery, along with a few other offenses. Moore‘s adult record is more troubling. His first conviction occurred when he was 24 years old, and he regularly accumulated convictions of varying degrees of seriousness every three or four years (and often more frequently) for the next 30 years. His adult convictions include offenses of violence (e.g., aggravated felonious assault, aggravated robbery, domestic violence) and drug offenses (e.g., drug trafficking and possession of cocaine). On the whole, Moore‘s record shows that he has regularly
{¶ 24} Regarding the proportionality of the aggregate sentence, Moore argues only that the trial court “failed to conduct any analysis * * *” of proportionality and this “lack of * * * discussion * * *” shows that consecutive sentences are unsupported by the record. But a trial court is not required to state the reasons underlying its decision to impose consecutive sentences, or “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, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. Thus, the record‘s silence on this point is not dispositive.
{¶ 25} A trial court‘s proportionality analysis “does not occur in a vacuum, but, instead, focuses upon the defendant‘s current conduct and whether this conduct, in conjunction with the defendant‘s past conduct, allows a finding that consecutive service is not disproportionate [to the seriousness of the defendant‘s conduct and to the danger the defendant poses to the public].” (Brackets sic and internal quotations omitted.) State v. Johnson, 2023-Ohio-2008, --- N.E.3d ----, ¶ 35 (6th Dist.). In Gwynne, the Supreme Court explained that
{¶ 26} Here, although the court did not explicitly say that it was considering the proportionality of the aggregate sentence that it imposed, there is no requirement that it do so. See Bonnell at ¶ 37. The record shows that the court looked at Moore‘s “current conduct” of possessing cocaine and three guns, along with the “apparently illicit substances, marijuana, prescription medication prescribed to someone other than [Moore], a ledger tracking the inflow of money and the weight of narcotics leaving the residence, a digital scale, and $7,936 in cash (both genuine and counterfeit) * * *” that police found at his home when they searched it. Moore I, 2021-Ohio-765, 168 N.E.3d 921, at ¶ 10. The court also considered Moore‘s lack of remorse and refusal to take responsibility for his actions, which are appropriate factors to consider in the consecutive-sentence calculus. See, e.g., Johnson at ¶ 36 (appellant‘s lack of remorse, considered with his other conduct, did not show that the trial court‘s proportionality
{¶ 27} Weighing against this, Moore points to the facts that “[t]here is no corporeal victim in this case * * *” and he was not “accused of a violent act * * *.” We also note his trial counsel‘s argument that he struggles with substance abuse (which is supported by some of the probation department‘s information) and his addiction was “a significant factor related to the offenses that he was convicted on * * *.” However, when the court looked at Moore‘s current convictions combined with his extensive criminal history—including convictions of offenses of violence and drug offenses—and the harm to society caused by “hav[ing] drugs in the community * * *[,]” it concluded that consecutive sentences were not disproportionate to the seriousness of Moore‘s conduct and the danger he poses to the public. Based on this information, we cannot say that we
{¶ 28} Moore‘s assignment of error is not well-taken.
III. Conclusion
{¶ 29} For the foregoing reasons, the November 8, 2022 judgment of the Erie County Court of Common Pleas is affirmed. Moore is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Charles E. Sulek, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.