STATE OF OHIO v. JAMES E. PEDICINI, II,

{¶2} Appellant owned a mechanic business located in Poland. The business

was based on a partnership agreement between Appellant and his codefendants, James

Pedicini III (“James III”), Andrew Devellin, and William Noble. James III is Appellant’s

son.

{¶3} On December 31, 2016, Northstar Power Sports, which is located in

Hermitage, Pennsylvania, was burglarized. (2/26/19 Sentencing Hrg. Tr., p. 6.) The

thieves used a box truck to steal three all-terrain vehicles (“ATV”) from the store.

Apparently the truck carried some identifying information connecting it to a business

known as Rice Pool and Spa. On January 3, the truck was found near a house belonging

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to Appellant’s ex-wife. While Appellant did not live there, he frequently visited the house.

James III and Devellin resided at the house.

{¶4} On January 11, 2017, the Mahoning County Dog Pound project was

burglarized. Among the stolen items were cordless tools, hand tools, and other

construction equipment worth approximately $10,000. On the same date, a burglary was

committed at JS Northeast Liberty. (2/26/19 Sentencing Hrg. Tr., p. 7.) The stolen items

from that burglary included commercial equipment, a trailer, a Lincoln welder, tools, and

other machinery worth approximately $20,000.

{¶5} On January 21, 2017, a burglary was committed at Direct Auto Sales in

Boardman. The thieves stole a 2003 Dodge 1500 pick-up truck, three sets of wheels and

tires, and a car stereo.

{¶6} On February 6, 2017, Belmont Motors in Youngstown was burglarized.

Among the stolen items were several air compressors and tire balancing machines worth

$9,000.

{¶7} On February 18, 2017, the Auto Pros shop was vandalized, spray-painted

and ransacked. Security cameras were damaged during this burglary. Two vehicles, air

compressors, tools, and heavy machines worth approximately $66,000 were stolen.

(2/26/19 Sentencing Hrg. Tr., p. 8.)

{¶8} On February 23, 2017, Dale Starvey, owner of JS Northeast Liberty, was

contacted by a friend who saw a trailer with a welder that he knew belonged to Starvey.

Apparently, the trailer was specially designed for Starvey and was easily recognizable.

After receiving the call, Starvey contacted Sergeant Ray Buhala who located the trailer

outside of the house belonging to Appellant’s ex-wife. The ex-wife consented to a search

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of the house, and police found several items that were reported stolen from JS Northeast

Liberty and the Mahoning County Dog Pound project. (2/26/19 Sentencing Hrg. Tr., p.

9.) James III and Devellin were at the house at the time of the search and were brought

to the police department for questioning. Both codefendants eventually confessed to the

burglaries.

{¶9} Police also searched the building where Appellant and his codefendants

operated their mechanic business. During the search, police learned that the defendants

owned a second building. James III and Devellin were described as “visibly upset and

visibly sick” after hearing that investigators knew of the second property. (2/26/19

Sentencing Hrg. Tr., p. 10.) Police searched the second property and located more of

the stolen items.

{¶10} Appellant initially appeared to cooperate with police. He told them a man

named Brian Doctson was responsible for the burglaries. (2/26/19 Sentencing Hrg. Tr.,

p. 11.) Appellant led police officers to one of the stolen ATVs, which was located in a

wooded area on one of the properties owned or operated by Appellant. However, the

fourth business partner, Noble, cooperated with police and allowed them to record a

conversation he had with Appellant. During the recorded conversation, Appellant told

Noble: “Oh, that’s the thing right now is that, um, I mean, I can easily put it [the ATV]

somewhere and fucking I’ll be -- look like Doctson said that he needed somewhere to put

something somewhere and he asked about my woods. I’m just trying to think what I’m

doing as I’m manipulating, thinking about how to manipulate around this thing and let

them know about other shit he’s got.” (2/26/19 Sentencing Hrg. Tr., p. 14).

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{¶11} During the investigation, police officers learned that James III and Devellin

were responsible for committing the burglaries. They brought the stolen items to the

business the four operated. Appellant knew the items were stolen, and was allowed to

choose which items he wanted and take them from the stash. It is unclear what role

Noble played in the scheme.

{¶12} On November 9, 2017, Appellant was indicted on the following charges:

five counts of receiving stolen property, felonies of the fourth degree in violation of R.C.

2913.51(A)(C); one count of receiving stolen property, a felony of the fifth degree in

violation of R.C. 2913.51(A)(C); one count of possessing criminal tools, a felony of the

fifth degree in violation of R.C. 2923.24(A)(C); and one count of engaging in a pattern of

corrupt activity, a felony of the second degree in violation of R.C. 2923.32(A)(1), (B)(1).

Appellant’s codefendants were also charged with various offenses within the indictment.

{¶13} On June 15, 2018, the trial court held a hearing on defense counsel’s motion

to withdraw from representation of Appellant. Because Appellant failed to appear at the

hearing, the court issued a bench warrant and Appellant was subsequently arrested.

{¶14} On January 11, 2019, Appellant pleaded guilty to five counts of receiving

stolen property (fourth degree charges). The state dismissed the remaining charges. The

state indicated within the plea agreement that it would seek a sentence of five years of

incarceration. Appellant sought a lesser sentence.

{¶15} On March 5, 2019, the trial court imposed an aggregate sentence of four

years and credited Appellant with nineteen days served. It is from this entry that Appellant

timely appeals. For ease of understanding, Appellant’s assignments of error will be

addressed out of order.

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ASSIGNMENT OF ERROR NO. 2

The record does not support the trial court's sentence of Appellant.

{¶16} Appellant argues that his sentence is contrary to law. Appellant argues that

his presentence investigation report, “PSI,” revealed only “minor criminal history.”

(Appellant’s Brf., p. 10.) Appellant notes that the PSI recommended Appellant be

sentenced to a community control sanction, not a prison term. Appellant urges that

mitigating evidence was submitted on his behalf in the form of letters from friends and

family revealing a strong support system. Evidence of his military service and injuries

suffered during his service was also presented. Finally, Appellant compares his situation

with that of James III. While James III refused to cooperate with the investigation,

Appellant claims that he led police to one of the stolen ATVs and generally cooperated

with the investigation.

{¶17} The state responds by arguing that a trial court has absolute discretion to

impose a sentence so long as it falls within the sentencing guidelines. Even so, the state

notes that Appellant actually attempted to conceal evidence in this matter and continues

to deny his involvement in the commission of these offenses.

{¶18} An appellate court is permitted to review a felony sentence to determine if

it is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 1. Pursuant to Marcum, “an appellate court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that the record

does not support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” Id.

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{¶19} When determining a sentence, a trial court must consider the purposes and

principles of sentencing in accordance with R.C. 2929.11, the seriousness and recidivism

factors within R.C. 2929.12, and the proper statutory ranges set forth within R.C. 2929.14.

{¶20} Appellant pleaded guilty to five counts of receiving stolen property. The

sentencing range for those offenses is six to eighteen months of incarceration. Appellant

received a twelve month prison term for each charge. Thus, Appellant’s sentence falls

within the statutory range.

{¶21} Additionally, the trial court stated that it considered section 2929.12 of the

revised code at the sentencing hearing and within its sentencing entry.

{¶22} Although Appellant contends that he cooperated with the investigation, the

record shows that he attempted to mislead the investigators, lying to police officers when

he informed them that Doctson was responsible for burglaries. There is a recorded phone

call from Appellant to Noble where Appellant discussed his plan to attempt to implicate

Doctson. Not only did Appellant state that he planned to place the ATV in the woods and

tell investigators that Doctson had asked him to put it there, he also stated he was

attempting to “manipulate around this thing” and implicate Doctson. (2/26/19 Sentencing

Hrg. Tr., p. 14.) Additionally, as raised by the state, Appellant continued to maintain his

innocence at the sentencing hearing and claimed that he only accepted the plea

agreement based on his belief that he would avoid a prison sentence.

{¶23} There is no evidence of record to support Appellant’s claim that the court

failed to consider his military service, the back injury he suffered during his service, or the

letters provided by his friends and family. We note that the trial court’s sentence was less

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than that recommended by the state. Further, there is no requirement that a trial court

make factual findings to demonstrate it considered the relevant sentencing statutes.

{¶24} As Appellant’s sentence is within the statutory range and the record reveals

that the trial court considered the relevant sentencing statutes, Appellant’s second

assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 1

The trial court's sentence of Appellant was contrary to law because the trial

court did not make the requisite findings to impose consecutive sentences

under R.C. 2929.14(C)(4).

{¶25} Appellant argues that the trial court failed to make the requisite R.C.

2929.14(C)(4) findings when it imposed a consecutive sentence in this matter. Appellant

asserts that the findings were deficient both at the sentencing hearing and within the

sentencing entry. Appellant argues that at least two of the findings that the court made

were incomplete, and so were stripped of their meaning.

{¶26} In response, the state contends that a trial court is not required to cite the

exact language of the statute when making consecutive sentence findings. As long as

the imposition of consecutive sentences is supported by facts within the record, the state

urges that it is inconsequential that the court failed to completely articulate the findings.

{¶27} Pursuant to R.C. 2929.14(C)(4), before a trial court can impose consecutive

sentences on a defendant, the court must find:

[T]hat the consecutive service is necessary to protect the public from future

crime or to punish the offender and that consecutive sentences are not

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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.

{¶28} A trial court judge must not only make the consecutive sentence findings at

the sentencing hearing, it must incorporate those findings into the sentencing entry. State

v. Williams, 2015-Ohio-4100, 43 N.E.3d 797, ¶ 34 (7th Dist.), citing State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. A court need not state reasons

to support a finding nor is it required to use any “magic” or “talismanic” words, so long as

it is apparent from the record that the court conducted the appropriate analysis. Id., citing

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State v. Jones, 7th Dist. Mahoning No. 13 MA 101, 2014-Ohio-2248, ¶ 6; State v. Verity,

7th Dist. Mahoning No. 12 MA 139, 2013-Ohio-1158, ¶ 28-29.

{¶29} The state cites to the following statement from the court to show compliance

with R.C. 2929.14(C)(4): “Well, considering the factors contained in Section 2929 of the

Revised Code, I’m going to find that a non-prison sanction would demean the seriousness

of these offenses. It would not adequately protect the public or punish the defendant.”

(2/26/19 Sentencing Hrg. Tr., pp. 36-37.)

{¶30} Later in the sentencing hearing, the judge stated: “I am going to additionally

find, based upon the evidence presented during the sentencing hearing, that the harm

was so great or unusual that a single term does not adequately reflect the seriousness of

the conduct.” (2/26/19 Sentencing Hrg. Tr., p. 37.) It appears from the court’s language

that it was attempting to make a finding pursuant to R.C. 2929.14(C)(4)(b), which states:

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.

{¶31} As pointed out by Appellant, while the court’s statement tracks the language

of the second part of the subsection, it omits any reference to the first part, which requires

a finding of two or more offenses that were committed as part of a course of conduct. The

trial court did not address a course of conduct at any other point during the sentencing

hearing.

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{¶32} Although a trial court is not required to use any “talismanic language,” it

must be clear from the record that the court conducted the relevant analysis. The Eighth

District faced a similar issue in State v. Squires, 8th Dist. Cuyahoga No. 108071, 2019-

Ohio-4676. In Squires, the trial court imposed consecutive sentences based on R.C.

2929.14(C)(4)(b). Similar to the instant case, the court stated “that ‘the harm is so great

or unusual that a single term does not adequately reflect the seriousness of the

defendant's conduct,’ ” however, the court did not reference the course of conduct

language. Id. at ¶ 33. The Squires court found this language was deficient and remanded

the matter to allow the trial court to determine if consecutive sentences were appropriate

and, if so, to make the requisite findings.

{¶33} Similarly, the trial court in this case omitted any reference to a course of

conduct and did not provide any facts to indicate that a course of conduct was considered.

As such, the trial court failed to make the requisite findings at the sentencing hearing.

{¶34} Turning to the sentencing entry, the trial court made only a partial finding

that consecutive sentences were “not disproportionate.” (3/5/19 Sentencing Entry.) The

court did not refer to the remaining language of the statutes, which require a finding that

the imposition of consecutive sentences is not disproportionate to the seriousness of the

offender’s conduct. The Squires court held that a sentencing entry merely stating that

consecutive sentences are not “disproportionate,” and which does not indicate to what

this sentence is being compared, is deficient. Id. at ¶ 30. Hence, the sentencing entry in

this matter is also deficient.

Appellant argues that the trial court failed to consider mitigating evidence

before imposing his sentence. Appellant also argues that the trial court failed to make the requisite R.C. 2929.14(C)(4) consecutive sentencing findings both at the sentencing hearing and within the sentencing entry. For the reasons provided, Appellant’s individual sentences are affirmed. However, the trial court’s imposition of consecutive sentences isreversed and vacated. The matter is remanded for the limited purpose of addressing consecutive sentences.