Date: 05-06-2019

Case Style:

Case Number: 18 CA 11

Judge: John W. Wise

Court: COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: CHARLES T. McCONVILLE

Defendant's Attorney: KEVIN J. GALL

Description:

The relevant procedural facts leading to this appeal are as follows.
{¶4} On November 7, 2017, the Knox County Grand Jury indicted Rose Hayes
on one count of Aggravated Possession of Drugs, a felony of the fifth degree, in violation
of R.C. §2925.11(A), and one count of Possessing Drug Abuse Instruments, a
misdemeanor of the second degree, in violation of R.C. §2925.12(A).
{¶5} The Indictment alleged that the conduct occurred October 4, 2017. At the
time she committed the offense in this case, Appellant was under indictment in Knox
County Court of Common Pleas Case 17CR08-0172 for Permitting Drug Abuse, a felony
of the fifth degree. (Docket, Case No. 17CR08-0172).
{¶6} On April 27, 2018, Appellant entered a plea of guilty to both counts of the
Indictment in 17CR11-0274. Having previously been found guilty following a jury trial in
Case No. 17CR08~0172, the Knox County Court of Common Pleas sentenced her on
both cases.
{¶7} At the sentencing hearing, the trial court sentenced Appellant to eleven (11)
months imprisonment in Case No. 17CR08-0172. (Sent. Entry, Apr. 27, 2018). In Case
No.17CR11-0274, the trial court sentenced Appellant to nine (9) months imprisonment on
Count One; and two (2) months of imprisonment on Count Two. The sentences on the
Knox County, Case No. 18 CA 11 3
two counts were ordered to be served concurrently to each other, and consecutively to
the sentence in Case No. 17CR08-0172. (Sent. Entry, Apr. 27, 2018).
{¶8} During the sentencing hearing, the trial court stated that Appellant had
allowed a known drug dealer to move into her house and had created a risk to the
neighborhood and to law enforcement in apprehending him. (Sent. T. at 15). The trial
court also noted that Appellant committed the offense in Case No. 17CR11-0274 while
awaiting trial on Case No. 17CR08-0172. (Sent. T. at 17). Additionally, the court noted
that Appellant was not amenable to community control and provided reasons for such
finding. (Sent. T. at 16:1-18). Appellant had been screened for treatment at the West
Central Community Based Correctional Facility, but was combative with the screener and
stated that she did not need the help the CBCF could provide. Id.
{¶9} In imposing a prison sentence the trial court explained "I just don't know
what else to do with you." Id. The court also stated that law enforcement had to put extra
effort into abating the nuisance that was created by the drug dealing at Appellant's
residence. (Sent T. 18:1-4). This information was before the court from Det. DeChant's
testimony in Case No. 17CR08-0172. (Trial T. at 84-85). Det. DeChant had testified that
he was the primary affiant in a civil nuisance case involving 807 N. Mulberry Street, that
he was familiar with the undercover drug buys conducted there, and that the house had
been boarded up. (Id).
{¶10} Appellant now appeals, raising the following Assignment of Error:
ASSIGNMENT OF ERROR
{¶11} “I. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A
PRISON SENTENCE IN VIOLATION OF THE SENTENCING STATUTES.”
Knox County, Case No. 18 CA 11 4
I.
{¶12} In her sole Assignment of Error, Appellant argues the trial court erred in
imposing a prison sentence in this matter. We disagree.
{¶13} R.C. §2953.08(G)(2), “Appeals based on felony sentencing guidelines”
provides:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence * * *. The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing.
The appellate court's standard for review is not whether the sentencing
court abused its discretion. The appellate court may take any action
authorized by this division if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division 2929.13(B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. R.C.
2953.08(G)(2).
{¶14} “[A]ppellate courts must adhere to the plain language of R.C.
2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231,
¶7. An appellate court may only modify or vacate a sentence if it finds by clear and
Knox County, Case No. 18 CA 11 5
convincing evidence that the record does not support the sentencing court's decision. Id.
at ¶23. 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.’ ” State v.
Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7 quoting, Marcum, supra,
quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of
the syllabus. Clear and convincing evidence is that measure or degree of proof which is
more than a mere “preponderance of the evidence,” but does not require the certainty of
“beyond a reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.
{¶15} R.C. §2929.14(C)(4) governs consecutive sentences and states the
following:
(4) 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 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
Knox County, Case No. 18 CA 11 6
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.
{¶16} “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.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,
2014-Ohio-3177, syllabus.
{¶17} Initially, we note that Appellant does not argue that the trial court failed to
make the appropriate sentencing findings. Instead, Appellant, in part, disagrees with the
trial court's seriousness findings under R.C. §2929.12, as well as the trial court's
imposition of a prison sentence rather than community control.
{¶18} Upon review of the record before us, as set forth above, the trial court made
the following sentencing findings on the record: Appellant had allowed a known drug
dealer to move into her house and had created a risk to the neighborhood and to law
enforcement in apprehending him (Sent. T. at 15); Appellant committed the offense in
Case No. 17CR11-0274 while awaiting trial on Case No. 17CR08-0172 (Sent. T. at 17);
Appellant was not amenable to community control having been screened for treatment at
the West Central Community Based Correctional Facility, became combative with the
screener and stated that she did not need the help the CBCF could provide (Sent. T. at
Knox County, Case No. 18 CA 11 7
16:1-18). The trial court, in imposing a prison sentence, explained "I just don't know what
else to do with you." Id. The court also stated that law enforcement had to put extra effort
into abating the nuisance that was created by the drug dealing at Appellant's residence.
(Sent T. 18:1-4).
{¶19} We further find that the trial court, in its Sentencing Entry, stated that it found
Appellant committed one or more offenses while she awaited trial or sentencing (R.C.
§2929.14(C)(4)(a)), and that Appellant’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
Appellant (R.C. §2929.14(C)(4)(c)). (See (May 1, 2018, Sentencing Entry at 2).
Additionally, the trial court stated:
The Court noted on the record that the circumstances of the
defendant’s conduct in connection with the crime created a serious threat
to the safety of the community in which the Defendant lives, and a threat to
the safety of the law enforcement officers who were involved in her arrest.
(May 1, 2018, Sentencing Entry at 2).
{¶20} Based on our review, we find that the record demonstrates that the trial
court made the seriousness findings pursuant to R.C. 2929.12(B) & (C). Here, the trial
court's sentence was within the statutory range. Moreover, the record reveals that the trial
court properly considered the statutory purposes and factors of felony sentencing
{¶21} Accordingly, we find that the trial court did not err in the imposition of
Appellant's prison sentence and did not fail to consider the statutory factors required when
imposing a prison sentence.
{¶22} Appellant’s assignment of error is overruled.

Outcome: For the reasons stated in the foregoing opinion, the decision of the Court of
Common Pleas, Knox County, Ohio, is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: