[Cite as State v. Takos, 2013-Ohio-565.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2012-CA-0078
JEFFREY MICHAEL TAKOS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas Court, Case No.
2012-CR-50H
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 5, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. ANDREW M. KVOCHICK
Richland County Prosecuting Attorney Weldon, Huston & Keyser, LLP
38 S. Park Street 76 N. Mulberry Street
Mansfield, OH 44902 Mansfield, OH 44902
[Cite as State v. Takos, 2013-Ohio-565.]
Delaney, P.J.,
{¶1} Appellant Jeffrey Takos was indicted with Theft, a felony of the fifth
degree, Receiving Stolen Property, a felony of the fifth degree, Misuse of a Credit Card,
a misdemeanor of the first degree, Forgery, a felony of the fifth degree, Falsification, a
misdemeanor of the first degree, and Tampering with Evidence, a felony of the third
degree.
{¶2} On June 27, 2012, Takos entered a guilty plea to Theft, a felony of the fifth
degree, and Attempted Tampering with Evidence, a felony of the fourth degree. The
state dismissed the balance of the charges.
{¶3} On August 1, 2012, the trial court sentenced Takos to a maximum
sentence of twelve months on the theft charge consecutive to a maximum sentence of
eighteen months on the attempted tampering with evidence charge. Defense counsel
objected.
{¶4} In its sentencing entry form, the trial court checked boxes indicating that
consecutive sentences were "necessary to protect the public from future crime or to
punish the offender and consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public
and because * * * The offender committed one or more of the offenses while under a
community control sanction or PRC for a prior offense * * * The offender's history of
criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender."
{¶5} Appellate counsel for Takos has filed a motion to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967),
Richland County, Case No. 2012-CA-0078 3
rehearing denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377(1967), indicating that
the within appeal is wholly frivolous and setting forth four proposed assignments of
error. Takos did not file a pro se brief alleging any additional assignments of error. The
state did not file a brief in this case.
{¶6} Counsel raises the following proposed Assignments of Error:
{¶7} “I. WHETHER THE TRIAL COURT ERRED IN IMPOSING
CONSECUTIVE SENTENCES.
{¶8} “II. WHETHER THE TRIAL COURT ERRED IN IMPOSING MAXIMUM
SENTENCES.
{¶9} “III. WHETHER THE TRIAL COURT ERRED IN FAILING TO CONSIDER
COMMUNITY CONTROL SANCTIONS FOR FELONIES OF THE FOURTH AND FIFTH
DEGREE.
{¶10} “IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
CONSIDERING UNPROVEN ALLEGATIONS AT SENTENCING.”
I, II, III, and IV
{¶11} Because we find the issues raised in Takos’ Assignments of Error are
closely related, for ease of discussion, we shall address the Assignments of Error
together.
{¶12} Takos argues that the trial erred court because it failed to consider
community control sanctions for a felonies of the fourth and fifth degree as required by
R.C. 2929.13(B)(1)(a).
{¶13} R.C. 2929.13 Sentencing guidelines for various specific offenses and
degrees of offenses provides in relevant part,
Richland County, Case No. 2012-CA-0078 4
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if
an offender is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence, the court shall sentence the
offender to a community control sanction of at least one year's duration if
all of the following apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense or to an offense of violence that is a
misdemeanor and that the offender committed within two years prior to the
offense for which sentence is being imposed.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation
and correction pursuant to division (B)(1)(c) of this section, the
department, within the forty-five-day period specified in that division,
provided the court with the names of, contact information for, and program
details of one or more community control sanctions of at least one year's
duration that are available for persons sentenced by the court.
{¶14} In the case at bar, the record reflects that Takos admitted at the
sentencing hearing that he has past felony convictions. Accordingly, the presumption in
favor of community control sanctions does not apply to Takos. R.C. 2929.13(B)(1)(a)(i).
{¶15} Accordingly, we agree with counsel's conclusion that no arguably
meritorious claims exist upon which to base an appeal challenging the trial court's
decision not to sentence Takos to community control sanctions.
Richland County, Case No. 2012-CA-0078 5
{¶16} Takos also argues that the trial court erred by giving him the maximum
sentence.
{¶17} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,
the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1,
2006–Ohio–856, 845 N.E.2d 470 as it relates to the sentencing statutes and appellate
review of felony sentencing. See, State v. Snyder, Licking App. No. 2008–CA–25,
2080–Ohio–6709, 2008 WL 5265826.
{¶18} In Kalish, the Court discussed the affect of the Foster decision on felony
sentencing. The Court stated, in Foster, the Ohio Supreme Court severed the judicial
fact-finding portions of R.C. 2929.14, holding that “trial courts have full discretion to
impose a prison sentence within the statutory range and are no longer required to make
findings or give their reasons for imposing maximum, consecutive, or more than the
minimum sentences.” Kalish at ¶ 1 and 11, 896 N.E.2d 124, citing Foster at ¶ 100, See
also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v.
Firouzmandi, Licking App. No. 2006–CA–41, 2006–Ohio–5823, 2006 WL 3185175.
{¶19} Kalish held in reviewing felony sentences and applying Foster to the
remaining sentencing statutes, the appellate courts must use a two-step approach.
“First, they must examine the sentencing court's compliance with all applicable rules
and statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law. If this first prong is satisfied, the trial court's decision in
imposing the term of imprisonment shall be reviewed under an abuse of discretion
standard.” Kalish at ¶ 4: State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d
470.
Richland County, Case No. 2012-CA-0078 6
{¶20} The Supreme Court held, in Kalish, the trial court's sentencing decision
was not contrary to law. “The trial court expressly stated that it considered the purposes
and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12. Moreover,
it properly applied post release control, and the sentence was within the permissible
range. Accordingly, the sentence is not clearly and convincingly contrary to law.” Kalish
at ¶ 18. The Court further held the trial court “gave careful and substantial deliberation
to the relevant statutory considerations” and there was “nothing in the record to suggest
that the court's decision was unreasonable, arbitrary, or unconscionable.” Kalish at ¶ 20.
{¶21} We first find the trial court's sentence was not contrary to law. We also find
the trial court considered the applicable felony sentencing statutes, determined Takos
was not amenable to community control sanctions, and determined the overriding
purposes of felony sentencing warranted the maximum prison terms for each offense.
{¶22} In the case at bar, the trial court conducted a sentencing hearing in open
court. Takos concedes that the trial court considered statements from him and his legal
counsel; the overriding purposes of felony sentencing; the statutory factors set forth in
R.C. 2929.12 and 2929.13; the Pre-Sentence Investigation report, which indicated that
Takos had a prior criminal history, and the seriousness and recidivism factors, before
deciding on a prison term.
{¶23} Based on the record, the transcript of the sentencing hearing and the
subsequent judgment entry, this Court cannot find that the trial court acted
unreasonably, arbitrarily, or unconscionably, or that the trial court violated Takos’ rights
to due process under the Ohio and United States Constitutions in its sentencing him.
Richland County, Case No. 2012-CA-0078 7
Further, the sentence in this case is not so grossly disproportionate to the offense as to
shock the sense of justice in the community.
{¶24} Upon review, we agree with counsel's conclusion that no arguably
meritorious claims exist upon which to base an appeal challenging the trial court's
decision to impose the maximum sentences.
{¶25} Takos further maintains the trial court improperly imposed consecutive
sentences.
{¶26} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.
No. 86 now require a trial court to make specific findings when imposing consecutive
sentences. R.C. 2929.14(C)(4) provides, in relevant part:
(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.
Richland County, Case No. 2012-CA-0078 8
(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.
(Emphasis added). In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –
–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts
interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior
to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶27} We have consistently stated that the record must clearly demonstrate that
consecutive sentences are not only appropriate, but are also clearly supported by the
record. See, State v. Fauntleroy, 5th Dist. No. CT2012-0001, 2012-Ohio-4955; State v.
Bonnell, 5th Dist. No. 12CAA3022, 2012Ohio-515.
Richland County, Case No. 2012-CA-0078 9
{¶28} When it is clear from the record that the trial court engaged in the
appropriate analysis, little can be gained by sending the case back for the trial court to,
in essence, recite the “magic” or “talismanic” words when imposing consecutive
sentences. In other words, because the record supports the trial court’s imposition of
consecutive sentences, the trial court cannot err in imposing consecutive sentences
after remand. Our review on appeal of any subsequent resentencing will be directed at
looking at the entire trial court record to determine if that record supports the trial court’s
findings that the R.C. 2929.14(C) factors were met. See, State v. Alexander, 1st Dist.
Nos. C–110828, C–110829, 2012–Ohio–3349, ¶ 18; State v. Frasca, 11th Dist. 2011–
T–0108, 2012–Ohio–3746, ¶ 57.
{¶29} In the case at bar the PSI reviewed by the trial court reveals numerous
prior charges, many similar in nature to the conduct alleged in this case. The trial judge
remarked,
Presentence study indicates what the Court knew it would. The
Defendant has been on a crime wave for the last several years and
continues to be. 13 arrests in 14 years.
***
Now, I’m asking Mr. Takos. To what effect do we, now place you on
community control when you have proven that you are not amenable,
have never been amenable to supervision? To what effect would I do
that?
***
Richland County, Case No. 2012-CA-0078 10
That’s what I figured. We get down to push to shove, you say I’ll
take the minimum sentence rather than probation. That’s more realistic in
some ways, because there’s no question you’ve never been amenable.
***
The first time I saw you in this courthouse, I said here’s a young
man, an intelligent young man. Maybe had –I guess maybe had a juvenile
record, but I said here’s a guy, we give him a chance, put him on
probation, give him supervision, get him started in school, get him started
toward making a life for himself, this man is going to make it.
***
It’s been a while ago. But since that time and since the time I
believe that you really had a shot of making it, you got five pages of rap,
including three separate felonies. So we’ll see. We’ll wait and see what
happens, Mr. Takos. You turn the corner, you get yourself straight and
turn away from this criminal crap that you’ve been involved in for all these
years, make something special out of yourself as opposed to an inmate
and a fool and we will be able and willing to do something different. Until
you do, we treat you the way you act.
Sent. T., Aug 1, 2012 at 16; 17; 20.
{¶30} Upon review, we agree with counsel's conclusion that no arguably
meritorious claims exist upon which to base an appeal challenging the trial court's
decision to impose the consecutive sentences.
Richland County, Case No. 2012-CA-0078 11
{¶31} Takos next argues that the trial court considered unproven allegations in
determining his sentence.
{¶32} We agree with counsel's conclusion that the record fails to demonstrate
that the unproven allegations were the deciding factor in the trial court’s sentencing
decision. As noted above, there is sufficient independent evidence to support the trial
court’s sentencing decision, which renders any consideration of the unproven
allegations harmless, there is no prejudice and reversal is unwarranted.
{¶33} Upon review, we agree with counsel's conclusion that no arguably
meritorious claims exist upon which to base an appeal challenging any consideration by
the trial court of unproven allegations.
{¶34} Takos’ four assignments of error are overruled in their entirety, and the
decision of the Richland County Court of Common Pleas is affirmed.
By Delaney, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
PAD:clw 0107
Richland County, Case No. 2012-CA-0078 12
Hoffman, J., concurring
{¶35} I concur in the majority opinion with the singular exception that I find the
statute requires the trial court recite the “magic” or “talismanic” words when imposing
consecutive sentences.
{¶36} In find the trial court complied with such requirement by checking the
appropriate boxes on its sentencing entry form.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as State v. Takos, 2013-Ohio-565.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JEFFREY MICHAEL TAKOS :
:
:
Defendant-Appellant : CASE NO. 2012-CA-0078
For the reasons stated in our accompanying Memorandum-Opinion, the decision of
the Richland County Court of Common Pleas is affirmed. Costs to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER