State v. West

[Cite as State v. West, 2018-Ohio-956.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 105568

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

MELVIN WEST
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-595067-A

BEFORE: Boyle, J., McCormack, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: March 15, 2018
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: John Farley Hirschauer
Anthony Thomas Miranda
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

{¶1} Defendant-appellant, Melvin West, appeals his sentence and the trial court’s

imposition of court costs. On appeal, he raises two assignments of error for our review:

1. Appellant’s sentence is contrary to law and consecutive sentences were
not properly imposed.

2. The imposition of court costs in the journal entry without advising
Appellant in open court violated Appellant’s rights to due process.

{¶2} Finding no merit to his assignments of error, we affirm.

I. Procedural History and Factual Background

{¶3} On May 20, 2015, a Cuyahoga County Grand Jury indicted West for six

counts of trafficking, four counts of drug possession, two counts of permitting drug

abuse, and one count of possessing criminal tools. All of the trafficking counts carried

numerous specifications.

{¶4} Subsequently, the state and West entered a plea agreement, under which

West would plead guilty to two counts of trafficking, a felony of the fifth degree with

forfeiture specifications (heroin) and a felony of the fourth degree with a juvenile

specification (cocaine). In exchange, the state would dismiss the 11 remaining charges

as well as the charges against West’s wife, who was also charged in the indictment for a

number of drug-related offenses.

{¶5} On July 21, 2015, West pleaded guilty to the two trafficking counts;

however, he failed to appear for his sentencing hearing on August 18, 2015, and a capias

was issued for his arrest. On June 28, 2016, West turned himself into authorities.
 {¶6} Consequently, the court held a sentencing hearing on July 11, 2016. At the

hearing, the court sentenced West to 12 months for trafficking heroin, the fifth-degree

felony with forfeiture specifications, and 18 months for trafficking cocaine, the

fourth-degree felony with a juvenile specification. The court ordered that West serve

those sentences consecutively. Additionally, the court informed West that his driver’s

license was suspended for five years and that he could be placed on postrelease control

for up to three years.1

II. Standard of Review

{¶7} An appellate court must conduct a meaningful review of the trial court’s

sentencing decision. State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-Ohio-2508,

¶ 6, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892. R.C.

2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of

discretion. Instead, an appellate court must “review the record, including the findings

underlying the sentence or modification given by the sentencing court.” Id. If an

appellate court clearly and convincingly finds either that (1) “the record does not support

the sentencing court’s findings under [R.C. 2929.14(C)(4)],” or (2) “the sentence is

otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise

modify a sentence * * * or may vacate the sentence and remand the matter to the

1
We will discuss specific facts related to appellant’s assignments of error more fully in the
body of this opinion.
sentencing court for resentencing.” Id. The Ohio Supreme Court has further

explained:

that some sentences do not require the findings that R.C. 2953.08(G)
specifically addresses. Nevertheless, it is fully consistent for appellate
courts to review those sentences that are imposed solely after consideration
of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally
deferential to the sentencing court. That is, an appellate court may vacate
or modify any sentence that is not clearly and convincingly contrary to law
only if the appellant court finds by clear and convincing evidence that the
record does not support the sentence.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

III. Law and Analysis

A. Maximum Sentences

{¶8} Under his first assignment of error, West contests the trial court’s

imposition of the maximum sentence, arguing that it is contrary to law because it was not

supported by the record.

{¶9} Foremost, trial courts have full discretion to impose the maximum sentence

as long as it remains within the statutory range and are not required to make findings and

give reasons for imposing more than the minimum sentence. State v. Pavlina, 8th Dist.

Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470. Here, the trial court’s sentence for both of West’s

felonies were within the permissible statutory range.

{¶10} When sentencing a defendant, the court must consider the purpose and

principles of felony sentencing set forth in R.C. 2929.11 and the serious and recidivism

factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511,
2013-Ohio-5025, ¶ 7. R.C. 2929.11(A) and (B) states that the “overriding purposes of

felony sentencing are to protect the public from future crime by the offender and others to

punish the offender using the minimum sanctions that the court determines accomplish

those purposes” and requires that the sentence be “commensurate with and not demeaning

to the seriousness of the offender’s conduct and its impact upon the victim.” R.C.

2929.12 sets forth a nonexhaustive list of factors that the court must consider in relation

to the seriousness of the underlying crime and likelihood of recidivism, including “(1) the

physical, psychological, and economic harm suffered by the victim, (2) the defendant’s

prior criminal record, (3) whether the defendant shows any remorse, and (4) any other

relevant factors.” State v. Kronenberg, 8th Dist. Cuyahoga No. 101403,

2015-Ohio-1020, ¶ 26, citing R.C. 2929.12(B) and (D).

{¶11} Trial courts, however, are not required to make factual findings under R.C.

2929.11 or 2929.12 before imposing the maximum sentence. Id. at ¶ 27. In fact,

“[c]onsideration of the factors is presumed unless the defendant affirmatively shows

otherwise.” State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12,

citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234.

“[T]his court has consistently recognized that a trial court’s statement in the journal entry

that it considered the required statutory factors, without more, is sufficient to fulfill its

obligations under the sentencing statutes.” Id., citing State v. Wright, 8th Dist.

Cuyahoga No. 100283, 2014-Ohio-3321.
 {¶12} At the sentencing hearing, the trial court discussed West’s “course of

conduct,” selling heroin on April 7 and cocaine on April 16, and then stated that

“numerous other charges [that] were dismissed represent other dangers as well.” West

claims this was “not an appropriate basis” for imposing a maximum sentence and cites to

State v. Blevins, 8th Dist. Cuyahoga No. 105023, 2017-Ohio-4444, in support of his

argument. West’s reliance on Blevins, however, is misplaced.

{¶13} In Blevins, the appellant made a similar argument, which was “premised on

the assumption that the trial court imposed the maximum sentence because of the court’s

view regarding the benefit appellant received from the plea agreement, rather than the * *

* factors and considerations that prompted the court to impose consecutive sentences.”

Id. at ¶ 34. We disagreed, noting that “[a] plea agreement does not * * * preclude the

trial court’s consideration of the underlying facts of the case in determining the

appropriate sentence to impose” and, therefore, “the trial court is permitted to consider

the original charge when imposing its sentencing.” Id. at ¶ 36, citing State v. Peal, 8th

Dist. Cuyahoga No. 97644, 2012-Ohio-6007; see also State v. Reeves, 8th Dist. Cuyahoga

No. 100560, 2015-Ohio-299, ¶ 9 (when sentencing defendants, trial courts may consider

charges that were dismissed pursuant to the plea agreement).

{¶14} Here, the trial court’s journal entry contains language indicating that it

considered the required statutory factors. Additionally, the trial court was allowed to

consider the case’s underlying facts as well as West’s criminal background when

imposing an appropriate sentence. Id. at ¶ 36. At the sentencing hearing, the trial court
considered a number of factors, including West’s extensive criminal background, drug

addictions, and the impact that his actions had on the public. Therefore, we cannot say

that the trial court’s imposition of a maximum sentence is unsupported by the record or is

contrary to law.

B. Consecutive Sentences

{¶15} Also under his first assignment of error, West argues that the trial court

improperly imposed consecutive sentences for his drug trafficking convictions. A

defendant can challenge consecutive sentences on appeal by arguing that the consecutive

sentences are contrary to law because the court failed to make the necessary findings

under R.C. 2929.14(C)(4) or that the record does not support the trial court’s findings

under R.C. 2929.14(C)(4). State v. Johnson, 8th Dist. Cuyahoga No. 102449,

2016-Ohio-1536, ¶ 7. West makes both arguments here.

{¶16} In Ohio, sentences are presumed to run concurrent to one another unless the

trial court makes the required findings under R.C. 2929.14(C)(4). State v. Wells, 8th

Dist. Cuyahoga Nos. 99305, 99306, and 99307, 2013-Ohio-3809, ¶ 13. As such, trial

courts must engage in R.C. 2929.14(C)(4)’s three-tier analysis before imposing

consecutive sentences. First, the trial court must find that “consecutive service is

necessary to protect the public from future crime or to punish the offender[.]” R.C.

2929.14(C)(4). Second, the trial court must find that “consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.” Id. Third, the trial court must find that one of the

following applies:

(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction * * *, 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.

Id. The failure to make the above findings renders the imposition of consecutive

sentences contrary to law. State v. Lawson, 8th Dist. Cuyahoga No. 105038,

2017-Ohio-4189, ¶ 9, citing State v. Balbi, 8th Dist. Cuyahoga No. 102321,

2015-Ohio-4075.

{¶17} When making the above findings, however, a trial court is not required to

engage in “a word-for-word recitation” of R.C. 2929.14(C)(4)’s language. State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. In fact, “as long as

the reviewing court can discern that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings, consecutive sentences

should be upheld.” Id.

{¶18} At the sentencing hearing, the trial court first reviewed West’s extensive

criminal record that spanned approximately 30 years and included juvenile charges of
rape, kidnapping, felonious assault, theft, shoplifting, and falsification and adult charges

of drug abuse, theft, drug trafficking, receiving stolen property, kidnapping, gross sexual

imposition, driving under suspension, grand theft, giving false information to a police

officer, drug possession, OVI, fraud, having weapons while under disability, and driving

under suspension. The court remarked that West’s record reflected that of a drug dealer

and asked West if he had been a drug dealer since 1989, which West admitted he had.

The court subsequently sentenced West to 12 months for his “dealing in heroin” and

related forfeiture specifications and 18 months for “dealing in cocaine” and the related

juvenile specification.

{¶19} After ordering that those two sentences run consecutively, the court stated:

Obviously, you have been a long time drug dealer in our community, which,
of course, would lead the Court to believe that you are part of the heroin
epidemic that has taken the lives of over 150 residents of this county, and
the 150 mark we hit sometime in May. I don’t have any data numbers for
June or July, but I’m sure it is growing.

The Court finds that consecutive sentences are therefore necessary to
protect the public from future crime by you, and it is not disproportionate
for the seriousness of your conduct and to the danger your conduct poses
and imposes to the public.

You also committed one or more of these sentences as a course of conduct,
selling heroin on April 7th, cocaine on April 16th, numerous other charges
were dismissed represent other dangers as well.

Your history of criminal conduct dealing drugs since 1989, along with other
crimes, demonstrates that consecutive sentences are necessary to protect the
public from future crimes by you.

{¶20} Based on the record, it is clear that the trial court delineated all of the

findings necessary under R.C. 2929.14(C)(4)’s three-tier analysis and supported those
findings with facts from the record, “although it was not obligated to do so.” Wells, 8th

Dist. Cuyahoga Nos. 99305, 99306, and 99307, 2013-Ohio-3809, at ¶ 18.

{¶21} West argues that the trial court failed to explain “why his conduct required

the imposition of consecutive sentences or how this will protect the public.” We

disagree. When the General Assembly enacted H.B. 86, reviving Ohio’s presumption for

concurrent sentences and requiring trial courts to make findings before imposing

consecutive sentences, it deleted the requirement under S.B. 2 that required a trial court to

state its reasons for imposing consecutive sentences. State v. Goins, 8th Dist. Cuyahoga

No. 98256, 2013-Ohio-263, ¶ 11. Thus, the trial court was not required to explain “why”

it made its findings.

{¶22} West also argues that the trial court’s “use of consecutive sentencing does

not address the substance abuse problem that underlies and drives [his] crimes” and that a

sentence including substance abuse treatment “would better serve the interest of the

public and would punish [him] with the minimum sanctions necessary to accomplish the

purposes of R.C. 2929.11.” Neither R.C. 2929.14(C)(4)’s plain language nor case law

applying that language, however, requires that the trial court’s sentence address a

defendant’s substance abuse issues.

{¶23} The trial court also properly incorporated the necessary findings into its

sentencing journal entry as required. See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, at syllabus. Therefore, we find that the trial court’s findings were

sufficient under R.C. 2929.14(C)(4) to support consecutive sentences.
 {¶24} West additionally argues that the trial court’s findings for consecutive

sentences were not supported by the record. But the trial court reviewed West’s

extensive criminal record, which spanned approximately 30 years and included rape,

kidnapping, felonious assault, gross sexual imposition, driving under suspension, fraud

and numerous convictions for theft, falsification, and a variety of drug offenses. In

addition, West admitted to the court during the sentencing hearing that he sells drugs to

support his cocaine and marijuana addictions. The information presented to the trial

court reflected ongoing criminal, and sometimes violent, behavior, danger to the public,

and a high chance for recidivism.

{¶25} West further argues that the record does not support the imposition of

consecutive sentences because while “the court spent most of the time discussing its

conclusion that [he] was a contributor to the heroin crisis in the county and responsible

for approximately 150 deaths that resulted from heroin use[,]” he had no prior convictions

involving heroin. West, however, mischaracterizes the statements made by the trial

court, which actually were, “[Y]ou have been a long time drug dealer in our community,

which, of course, would lead the Court to believe that you are part of the heroin epidemic

that has taken the lives of over 150 residents of this county, and the 150 mark we hit

sometime in May.” West pleaded guilty to trafficking heroin after he was caught with

the substance. As a result, the trial court was not incorrect in labeling West as a

contributor to the heroin epidemic and identifying the epidemic’s drastic effects on this
county’s residents. Therefore, we find that the record supports the trial court’s findings

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

{¶26} Accordingly, we overrule West’s first assignment of error.

C. Court Costs

{¶27} In his second assignment of error, West argues that the trial court erred

when it ordered him to pay court costs in its sentencing journal entry but not at the

sentencing hearing. He argues that the appropriate remedy is to remand the case with an

order to waive his court costs because of his indigent status. The state concedes this

error, but argues that the issue should be remanded to determine whether court costs are

appropriate.

{¶28} Our court, sitting en banc, recently held that a “trial court’s failure to impose

court costs at the sentencing hearing, but ordering the defendant to pay court costs in the

judgment entry of conviction, constitutes reversible error.” State v. Taylor, 8th Dist.

Cuyahoga No. 104243, 2017-Ohio-9270, ¶ 13. Our holding followed the Ohio Supreme

Court’s ruling in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278,

which held that a trial court’s failure to orally notify a defendant of court costs at the

sentencing hearing is error. Joseph at ¶ 22.

{¶29} Nevertheless, less than a month after Taylor was released, the Ohio Supreme

Court decided State v. Beasley, Slip Opinion No. 2018-Ohio-493. In Beasley, which

was a death-penalty case, the trial court imposed court costs in its journal entry but failed

to mention them during the sentencing hearing. In his appeal to the Ohio Supreme
Court, the appellant relied on Joseph. The Ohio Supreme Court, however, disagreed

with the appellant’s position, stating that “Joseph is no longer good law” based on the

General Assembly’s amendment of R.C. 2947.23. Id. at ¶ 263. The court noted that

the newly added subdivision (C) to that statute states, “The court retains jurisdiction to

waive, suspend, or modify the payment of the costs of prosecution * * * at the time of

sentencing or at any time thereafter.” Id. at ¶ 265. Based on that language, the court

concluded that “Beasley does not need this court to remand this case in order for him to

file a motion to waive costs. Therefore, his request for a remand on this basis has no

merit.” Id.

{¶30} After review, we find that Beasley effectively overrules this court’s en banc

decision in Taylor. Therefore, we find that the lower court did not err and that West’s

request for a remand is meritless.

{¶31} Accordingly, we overrule West’s second assignment of error.

{¶32} Judgment affirmed.

It is ordered that appellee recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR