State v. McKenzie

[Cite as State v. McKenzie, 2012-Ohio-6117.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 15-12-07

v.

KELLY M. MCKENZIE, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court
Trial Court No. CR12-02-026

Judgment Affirmed

Date of Decision: December 26, 2012

APPEARANCES:

Kelly J. Rauch for Appellant

Eva J. Yarger for Appellee
Case No. 15-12-07

PRESTON, J.

{¶1} Defendant-appellant, Kelly McKenzie, appeals the Van Wert County

Court of Common Pleas’ sentence of 54 months imprisonment following her

guilty plea to one count of trafficking in heroin, one count of aggravated

trafficking in drugs, and one count of trafficking in counterfeit substances.

McKenzie argues the trial court failed to make specific findings before imposing

the consecutive sentences and that her sentence does not comport with the

principles and purposes of felony sentencing. For the following reasons, we

affirm.

{¶2} The present case stems from a series of drug transactions that occurred

in August and September of 2011. On February 3, 2012, the Van Wert County

Grand Jury issued a secret indictment for McKenzie, charging her with one count

of trafficking in heroin in violation of R.C. 2925.03(A)(1)(C)(6)(b), a felony of the

fourth degree, one count of aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1)(C)(1)(b), a felony of the third degree, one count of trafficking in

counterfeit controlled substances in violation of R.C. 2925.37(B)(H), a felony of

the fourth degree, and one count of possession of heroin in violation of R.C.

2925.11(A)(C)(6)(c), a felony of the third degree. (Doc. No. 1).

{¶3} On February 7, 2012, the trial court arraigned the defendant. (Doc.

No. 6). McKenzie pled not guilty to the charges. (Id.).

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{¶4} On March 14, 2012, the trial court held a change of plea hearing. (Tr.

at 11). The State dismissed the possession of heroin charge and reduced the

aggravated trafficking in drugs charge to a felony of the fourth degree from a

felony of the third degree. (Id. at 21). McKenzie pled guilty to the charges. (Id.

at 20); (Doc. No. 18).

{¶5} On April 25, 2012, the trial court held a sentencing hearing. (Tr. at

23). The trial court sentenced McKenzie to 18 months imprisonment for each

charge to be served consecutively, resulting in 54 months imprisonment. (Id. at

27). The trial court filed its judgment entry on April 27, 2012. (Doc. No. 22).

{¶6} On May 24, 2012, McKenzie filed a notice of appeal. McKenzie now

raises two assignments of error for our review. We elect to combine McKenzie’s

assignments of error for the purposes of our discussion.

Assignment of Error No. I

The trial court erred in failing to make specific findings of fact
in order to justify imposing consecutive sentences as required by
Ohio Revised Code Section 2929.14(C)(4).

Assignment of Error No. II

The trial court’s sentence does not comport with the principles
and purposes of felony sentencing according to sections 2929.11,
2929.12 and 2929.14 of the Ohio Revised Code.

{¶7} In her assignments of error, McKenzie contends that her sentence is

contrary to law. In her first assignment of error, McKenzie argues the trial court

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failed to make specific findings of fact before imposing consecutive sentences as

required by R.C. 2929.14(C)(4). In her second assignment of error, McKenzie

argues the trial court failed to follow the purposes of felony sentencing provided in

R.C. 2929.11 and 2929.12.

{¶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. No. 4-06-24, 2007-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. Rhodes,

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. 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; State v. Boshko,

139 Ohio App.3d 827, 835 (12th Dist.2000). 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

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ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. No. 2-

04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400

(2001).

{¶9} Pursuant to R.C. 2929.14(A)(4), “[f]or a felony of the fourth degree,

the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fifteen,

sixteen, seventeen, or eighteen months.” Here, the trial court sentenced McKenzie

to 18 months on each count, which is within the statutory range. The trial court

also determined that McKenzie should serve each of the 18 month prison terms

consecutively.

{¶10} The revisions to the felony sentencing statues under H.B. 86 now

require a trial court to make specific findings when imposing consecutive

sentences. State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 11.

Specifically, R.C. 2929.14(C)(4) states:

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

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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(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.

Although H.B. 86 requires the trial court to make findings before imposing a

consecutive sentence, it does not require the trial court to give its reasons for

imposing the sentence. State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-

3746, ¶ 57. The First District Court of Appeals has explained:

The consecutive-sentence findings required by R.C. 2929.14(C) are

not the same as those required by former R.C. 2929.19(B)(2), which

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provided that the trial court “shall impose a sentence and shall make

a finding that gives its reasons for selecting the sentence * * * (c) If

it imposes consecutive sentences.” (Emphasis added.) See State v.

Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 14-

16. In 2003, the Ohio Supreme Court held that the requirement that

a trial court give its reasons for selecting consecutive sentences was

“separate and distinct from the duty to make the findings,” and it

imposed an obligation on the trial courts to articulate the reasons

supporting their findings at the sentencing hearing. Id. at ¶ 19-20,

794 N.E.2d 473. The trial court’s obligation to “give its reasons” is

now gone from the sentencing statutes. Gone with it, we hold, is the

requirement that the trial court articulate and justify its findings at

the sentencing hearing.

State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18.

The Courts of Appeals for the Fifth, Ninth, Eleventh, and Twelfth Districts have

likewise held that while H.B. 86 reinserted language in R.C. 2929.14 requiring a

trial court to make certain findings before imposing a consecutive sentence, it

removed language requiring a trial court to give its reasons for selecting the

sentence. See State v. Nowlin, 5th Dist. No. CT2012-0015, 2012-Ohio-4923, ¶ 71;

State v. Just, 9th Dist. No. 12CA0002, 2012-Ohio-4094, ¶ 49; Frasca, at ¶ 57;

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State v. Smith, 12th Dist. No. CA-2012-01-004, 2012-Ohio-4523, ¶ 34. The trial

court is not required to recite any “magic” or talismanic” words when imposing

consecutive sentences, as long as it is “clear from the record that the trial court

engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004-

Ohio-3962, ¶ 12.

{¶11} Additionally, the trial court must consider the purposes and

principals for felony sentencing set forth in R.C. 2929.11 and the factors relating

to the seriousness of the offense and the recidivism of the offender pursuant to

R.C. 2929.12. State v. Pence, 3d Dist. No. 2-11-18, 2012-Ohio-1794, ¶ 7. The

purposes and principles for felony sentencing provided in R.C. 2929.11 are “to

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.” Hites,

2012-Ohio-1892, at ¶ 8. R.C. 2929.12(D) further requires the sentencing court to

consider factors that indicate the offender is likely to commit future crimes,

including, in pertinent part, that:

(1) At the time of committing the offense, the offender was under

release from confinement before trial or sentencing, under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

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Revised Code, or under post-release control pursuant to section

2967.28 or any other provision of the Revised Code for an earlier

offense or had been unfavorably terminated from post-release

control pursuant to section 2967.28 or any other provision of the

Revised Code for an earlier offense or had been unfavorably

terminated from post-release control for a prior offense pursuant to

division (B) of section 2967.16 or section 2929.141 of the Revised

Code.

***

(4) The offender has demonstrated a pattern of drug or alcohol

abuse that is related to the offense, and the offender refuses to

acknowledge that the offender has demonstrated that pattern, or the

offender refuses treatment for the drug or alcohol abuse.

***

{¶12} In the present case, the trial court made the findings R.C.

2929.14(C)(4) requires. At the sentencing hearing, the trial court stated that a

consecutive sentence was required:

[i]t being 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

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the danger the offender poses to the public, and the offender’s

criminal history and criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by

the offender.

(Apr. 25, 2012 Tr. at 26-27). The trial court further stated:

The Court notes for the record that it has fully considered the

information contained in the presentence investigation report * * *

the Court finds that the defendant has previously been convicted of a

felony offense. The Court further finds that the offender is not

amenable to community control, and that prison is consistent with

the purposes and principles of sentencing set forth in R.C. 2929.11.

(Id. at 28). The trial court thus found that McKenzie’s criminal history required

the imposition of consecutive sentences, that her sentence was not

disproportionate to the seriousness of her offense, and that it was necessary to

protect the public. The trial court also explicitly stated that it had considered the

purposes and principles of sentencing. The trial court recorded its findings in its

judgment entry. (Doc. No. 22).

{¶13} A review of McKenzie’s presentence investigation report (“PSI”)

further supports the trial court’s sentence and demonstrates that the trial court

engaged in the required analysis. McKenzie has committed numerous prior

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offenses, including one count of aggravated trafficking, one count of forgery, two

counts of trafficking in marijuana, two counts of trafficking in crack cocaine, one

count of possession of heroin, one count of possession of vicodin, and one count

of theft. (PSI). McKenzie was previously sentenced to probation, counseling, and

other forms of substance abuse treatment, but repeatedly violated her probation

with positive drug screens and additional drug charges. (Id.). McKenzie also

failed to comply with her counseling. (Id.). Furthermore, McKenzie has served

previous prison sentences and committed the current offenses while on probation

with the Van Wert Municipal Court. (Id.). McKenzie thus has demonstrated a

pattern of drug abuse that is related to the present offenses, has refused to comply

with treatment, committed the offenses while on probation, and has not been

amenable to lesser sanctions. After reviewing the record, we cannot find that

McKenzie’s sentence is contrary to law as she contends.

{¶14} McKenzie’s first and second assignments of error are, therefore,

overruled.

{¶15} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr

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