State v. Upkins

[Cite as State v. Upkins, 2013-Ohio-3986.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 17-13-02

v.

LAMONE UPKINS, OPINION

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court
Trial Court No. 11CR000264

Judgment Affirmed

Date of Decision: September 16, 2013

APPEARANCES:

Jonathan M. Richard for Appellant

Timothy S. Sell and Jeffrey J. Beigel for Appellee
Case No. 17-13-02

SHAW, J.

{¶1} Defendant-appellant, Lamone Upkins (“Upkins”), appeals the January

15, 2013 judgment of the Shelby County Court of Common Pleas finding him

guilty of four counts of trafficking in drugs and sentencing him to serve thirty-six

months in prison.

{¶2} On September 29, 2011, the Shelby County Grand Jury indicted

Upkins on four counts of trafficking in drugs in violation of R.C. 2925.03(A)(1),

all felonies of the fifth degree. The indictment alleged that Upkins sold

Clonazepam to a confidential informant on four separate occasions. A jury trial

was held on December 29, 2011. The jury found Upkins guilty on all four counts.

{¶3} On February 13, 2012, a sentencing hearing was held. The trial court

sentenced Upkins to serve nine months in prison on each count, to be served

consecutively for a total stated prison term of thirty-six months.

{¶4} Upkins appealed his sentence to this Court, assigning as error the trial

court’s failure to make the required statutory findings prior to imposing

consecutive sentences pursuant to R.C. 2929.14(C)(4). In State v. Upkins, 3d Dist.

Shelby No. 17-13-12, 2012-Ohio-6114, we found that the trial court did not make

the required statutory findings and remanded the case to the trial court to address

those findings.

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{¶5} On January 15, 2013, the trial court resentenced Upkins again

imposing consecutive sentences for a total stated prison term of thirty-six months.

{¶6} Upkins now brings this appeal, asserting the following assignment of

error.

THE TRIAL COURT ERRED IN SENTENCING THE
APPELLANT TO SERVE CONSECUTIVE SENTENCES, AS
THE APPELLANT’S SENTENCE DOES NOT SERVE THE
PURPOSE OF THE SENTENCING STATUTE PURSUANT
TO OHIO REVISED CODE ANN. § 2929.11(A), IS CLEARLY
AND CONVINCINGLY CONTRARY TO LAW, AND THE
RECORD CLEARLY AND CONVINCINGLY DOES NOT
SUPPORT THE TRIAL COURT’S FINDINGS.

{¶7} In his sole assignment of error, Upkins argues that the trial court erred

in imposing consecutive sentences. Specifically, Upkins again asserts on appeal

that the trial court failed to make the appropriate statutory findings to impose

consecutive sentences. He also maintains that imposing consecutive sentences is

inconsistent with the purposes and principles of the felony sentencing statutes and

that the record does not support the trial court’s decision to impose consecutive

sentences.

{¶8} 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-

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Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth

under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed

under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v.

Tyson, 3d Dist. Allen Nos. 1–04–38; 1–04–39, 2005–Ohio–1082, ¶ 19, citing R.C.

2953.08(G). 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. 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).

{¶9} At the outset, we note that R.C. 2929.14(C)(4) requires a trial court to

make specific findings before imposing consecutive sentences on an offender.

Specifically, with respect to the issues raised in this case R.C. 2929.14(C)(4)

states, in relevant part:

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:

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***

(c) The offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.

{¶10} Here, the trial court stated the following on the record at the

resentencing hearing prior to imposing consecutive sentences.

[T]he Court finds that consecutive sentencing is necessary to
protect the public from future crimes, and it is not
disproportionate to the seriousness of your [] conduct and the
danger that you [] pose to the public.

Further, the Court specifically finds that [] your past history of
criminal conduct demonstrates that consecutive sentencing is
necessary to protect the public from future crimes by [] you.

(Tr. at 10).

{¶11} In its judgment entry resentencing Upkins, the trial court stated the

following relevant to the required statutory findings.

For reasons stated on the record, and after consideration of the
factors under the Revised Code Section 2929.12, the Court also
finds that prison is consistent with the purposes of 2929.11 and
the Defendant is not amenable to an available community
control sanction. This court further finds that consecutive
sentencing is necessary to protect the public from future crimes
and is not disproportionate to the seriousness of the offender’s
conduct and the danger the offender poses to the public.
Further, this court specifically finds that the offender’s history
of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the
offender.

(Doc. No. 22 at 2).

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{¶12} On appeal, Upkins concedes that the trial court properly made the

statutory finding regarding his history of criminal conduct stated in R.C.

2929.14(C)(4)(c). However, with specific regard to the other two statutory

findings contained in R.C. 2929.14(C)(4), Upkins argues that “it is not enough for

the sentencing court to simply extract the statutory language and put it on the

record. Instead, the court must ‘engage in the required analysis.’ ” (Appellant’s

Brief at 9).

{¶13} Upkins’ argument on appeal is inapposite to the precedent set by

multiple appellate jurisdictions which have stated that R.C. 2929.14(C)(4) does

not require the trial court to justify its findings by giving reasons for making those

findings. See e.g, State v. Goins, 8th Dist. Cuyahoga No. 98256, 2013–Ohio–263,

¶ 11; State v. McKinley, 3rd Dist. Van Wert No. 15-12-07, 2012-Ohio-6117,¶ 10;

State v. Nowlin, 5th Dist. Muskingum No. CT2012–0015, 2012–Ohio–4923, ¶ 69;

State v. Smith, 12th Dist. Clermont No. CA–2012–01–004, 2012–Ohio–4523, ¶

31.

{¶14} In support of his argument, Upkins relies upon State v. Venes, 8th

Dist. Cuyahoga No. 98682, 2013-Ohio-1891. Specifically, the court in Venes

stated the following regarding the trial court’s duty to make the required statutory

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

By imposing a requirement that the trial judge make specific
findings before ordering sentences to be served consecutively,

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the General Assembly toughened the standard for consecutive
sentences. However, the revived consecutive sentencing statute
codified in R.C. 2929.14(C)(4) does not place a heavy burden on
a trial judge. Indeed, it is arguably easier to impose consecutive
sentences today than it was under former R.C. 2929.14(E)(4)
because the revived version did away with the requirement that
the court justify its findings by giving reasons for making those
findings.

Because the statute so clearly requires specific findings for the
imposition of consecutive sentences, those findings must be
entered at the time the court orders sentences to be served
consecutively. What we mean by this is that regardless of what
the trial judge might say during sentencing regarding the
purposes and goals of criminal sentencing, compliance with R.C.
2929.14(C)(4) requires separate and distinct findings in addition
to any findings relating to purposes and goals of criminal
sentencing. Too often, we have been called to examine words or
phrases scattered throughout a sentencing transcript and piece
them together to decide whether the court made the required
findings. This case is a good example: the state referenced
“findings” on pages 64, 76, 78, 80, and 83 of the transcript in
support of consecutive sentences. This alone is proof that the
court did not make separate and distinct findings on the record
relative to the imposition of consecutive sentences. If the word
“findings” is to have any meaning at all, it means nothing less
than the court must “engage[ ] in the required analysis and
select [ ] the appropriate statutory criteria” before ordering
sentences to be served consecutively. Only then will the
imposition of consecutive sentences not be contrary to law.

(Id. at ¶ ¶ 16-17) (Internal citations omitted).

{¶15} Contrary to the scenario in Venes, the trial court in this case did make

separate and distinct findings by using the precise language chosen by the

legislature in R.C. 2929.14(C)(4). Moreover, nowhere in Venes did the court state

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that reciting the statutory language to make the required findings was insufficient

to comply with the statute.

{¶16} Notably, in a subsequent case before the same court, the appellant

tried to make an argument similar to Upkins’ by contending that the trial court’s

findings under R.C. 2929.14(C)(4) were insufficient because “the sentencing

transcript shows the court made no meaningful analysis of those findings.” State

v. Wright, 8th Dist. Cuyahoga No. 98901, 2013-Ohio-3132, ¶ 8. In response, the

Eighth District stated that the “[appellant’s] argument misinterprets the

requirements placed on the trial court under R.C. 2929.14(C)(4) for consecutive

sentencing purposes.” Id. The court cited Venes and held that “because the record

reflects that the trial court made the findings under R.C. 2929.14(C)(4), its duty

for imposing consecutive sentences was fulfilled.” Id. at ¶ 9. Accordingly, we

also conclude that the trial court in this case fulfilled its duty under R.C.

2929.14(C)(4) when it made the findings by reciting the relevant statutory

language. Therefore, we find no merit in Upkins’ argument that the trial court was

required to engage in a separate analysis on the record to justify its findings.

{¶17} Upkins also argues that the trial court’s imposition of consecutive

sentences is inconsistent with the purposes and principles of felony sentencing and

is not supported by the record.

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{¶18} In sentencing an offender, a trial court must consider R.C. 2929.11

and 2929.12. State v. Pence, 3d Dist. Auglaize No. 2–11–18, 2012–Ohio–1794, ¶

9. The purposes and principles for felony sentencing provided in R.C. 2929.11 are:

[T]o protect the public from future crimes by the offender and
others and to punish the offender, and shall be commensurate
with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar
offenders.

State v. Hites, 3d Dist. Hardin No. 6–11–07, 2012–Ohio–1892, ¶ 8.

{¶19} Section 2929.12(B) of the Revised Code further requires the

sentencing court to consider factors that indicate the offender’s conduct is more or

less serious than conduct that normally constitutes the offense and factors that

indicate the offender is likely or not likely to commit future offenses. State v.

Billeg, 3d Dist. Wyandot No. 16–12–03, 2013–Ohio–219, ¶ 22.

{¶20} Prior to imposing consecutive sentences, the trial court at the

sentencing hearing specifically stated that it “considered the purposes and

principles of sentencing under R.C. 2929.11 and the seriousness and the

recidivism factors under R.C. 2929.12 as well as the consecutive sentencing

factors under R.C. 2929.14(C)(4).” (Tr. at 9). The trial court then discussed

Upkins’ criminal history on the record. In particular, the trial court noted that

Upkins’ criminal record stretches back as far as 1988 and involved numerous

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misdemeanor and felony charges, including burglary, grand larceny, trafficking in

drugs, preparation for sale, and possession of cocaine.

{¶21} The trial court further noted that in the past Upkins has been placed

on probation or community control and has been sent to WORTH, a drug

treatment and rehabilitation center. However, the trial court observed that Upkins’

record showed that he violated the terms and conditions of his community control

and was sent to prison. Finally, the trial court also noted that the offenses for

which Upkins was now being sentenced occurred as a result of four separate

incidents, which demonstrated that Upkins has engaged in a continuing course of

conduct. Notably, all of the trial court’s observations are supported by the record.

{¶22} In addition, it was also apparent from his statements at sentencing

that Upkins lacks any accountability for his actions comprising the current offense.

Moreover, his failure to show any remorse does not support his contentions on

appeal that he is unlikely to recidivate and that his continuing course of conduct

does not pose a danger to the public. This combined with the fact that Upkins had

demonstrated that he is not amenable to community control all support the trial

court’s conclusion that consecutive sentences are warranted in this case.

{¶23} For these reasons, we conclude that the trial court properly imposed

consecutive sentences by making the required statutory findings under R.C.

2929.14(C)(4), that the trial court’s imposition of consecutive sentences is

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consistent with the purposes and principles of felony sentencing as expressed in

R.C. 2929.11 and 2929.12, and that the sentence is supported by the record.

Accordingly, Upkins’ assignment of error is overruled and the judgment and

sentence of the Shelby County Court of Common Pleas is affirmed.

Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr

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