State v. Nettles

[Cite as State v. Nettles, 2018-Ohio-4908.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-17-053

Appellee Trial Court No. 15CR935

v.

Keith Nettles DECISION AND JUDGMENT

Appellant Decided: December 7, 2018

*****

Michael DeWine, Ohio Attorney General, and Christopher L.
Kinsler, Assistant Attorney General, for appellee.

Patrick J. Milligan and James E. Kocka, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Keith Nettles, appeals the November 7, 2017 judgment

of the Sandusky County Court of Common Pleas which, following a jury trial convicting
him of multiple counts of trafficking in cocaine, trafficking in heroin, and aggravated

drug trafficking, sentenced appellant to a total of 34 years of imprisonment. For the

reasons that follow, we affirm.

{¶ 2} Appellant was indicted on September 23, 2015, on 37 felony counts

including multiple counts of trafficking in cocaine, trafficking in heroin, conspiracy, one

count of money laundering, one count of aggravated funding of drug trafficking, and one

count of engaging in a pattern of corrupt activity. Several of the counts contained major

drug offender (“MDO”) specifications. Sixteen of the counts were dismissed by the state

prior to trial. At trial, following defense counsel’s hearsay arguments relating to

telephone conversations of individuals not testifying at trial, the state dismissed an

additional six counts. Appellant was ultimately tried on 15 counts including 11 counts of

trafficking in cocaine, six counts with MDO specifications, one count of trafficking in

heroin, one count of engaging in a pattern of corrupt activity, one count of money

laundering, and one count of aggravated funding of drug trafficking. The count of money

laundering was dismissed prior to jury deliberations.

{¶ 3} Prior to trial, appellant filed a motion to suppress all evidence derived from

the interception warrant issued on June 19, 2014, in Fremont, Sandusky County, Ohio.

The warrant authorized the interception of all communications to and from the target

phone of “Keith Last Name Unknown (“LNU”) a/k/a/ Keith” for the purpose of

uncovering the full nature and extent of the narcotics trafficking involving appellant, of

2.
individuals named in the warrant, and of unamend individuals and to prosecute those

identified. The warrant authorized Drug Enforcement Administration (DEA) Special

Agent Michael Noel, Jr., to intercept the communications at a listening post in Toledo,

Lucas County, Ohio, for a period of one month commencing no later than ten days after

the issuance of the warrant.

{¶ 4} Appellant’s motion disputed the Sandusky County court’s jurisdiction to

issue the warrant, that the affidavit in support of the warrant complied with the

mandatory statutory provisions, and that sufficient probable cause supported the warrant.

On September 27, 2017, the court held a final pretrial/suppression hearing. While not a

full evidentiary hearing, the parties clarified their arguments for the court. Following the

hearing, the parties submitted additional written arguments and the state provided the

affidavit of DEA Special Agent Michael Noel, Jr., which stated that the application for a

search warrant included a letter from the Ohio Attorney General’s office; the attached

letter, dated June 17, 2014, indicated that the Ohio Attorney General agreed with the

submission of the application as required by statute.

{¶ 5} On October 16, 2017, the trial court denied the motion to suppress. The

court, relying on federal cases interpreting near-identical federal wiretapping laws,

concluded that a search warrant could have been properly sought in Sandusky or Lucas

counties: either where the phone was located or the equipment used to intercept the calls.

The court next determined that the state complied with R.C. 2933.53(B)(9), by providing

3.
the affidavit which indicated that the necessary attorney general authorization was

submitted at the time of the application for the warrant. Finally, the court concluded that

sufficient probable cause supported the issuance of the warrant.

{¶ 6} The matter then proceeded to a jury trial on October 23, 2017. The state

presented the testimony of investigating officers from federal and local agencies and four

witnesses, who were the identified in the application for the interception warrant and/or

warrant, regarding their dealings with appellant and their roles in the drug trafficking

operation. The co-conspirators/witnesses, in particular Joe Brown Moore, Jr., who acted

as a courier from Detroit to Fremont, testified regarding the contents of several of the

intercepted telephone conversations. The defense did not present any testimony or

evidence.

{¶ 7} Following deliberations, the jury found appellant guilty of 11 counts and not

guilty of three counts. On November 7, 2017, appellant was sentenced to 11-year prison

terms for seven counts of trafficking in cocaine, 12 month and 18-month sentences for

two counts of trafficking in cocaine, eight years of imprisonment for trafficking in heroin,

and four years of imprisonment for engaging in a pattern of corrupt activity. The 11-year

counts were grouped in two bundles with each bundle being ordered to be served

concurrently but consecutively to the other. The four-year term was ordered to be served

consecutive to the eight-year terms and consecutive to the other terms for a total

mandatory sentence of 34 years (11+11+4+8). This appeal followed.

4.
 {¶ 8} Appellant raises the following assignments of error for our consideration:

Assignment of Error No. 1: The trial court committed reversible

error in denying appellant’s motion to suppress any evidence derived from

the facially defective interception warrant issued on June 19, 2014, thereby

depriving appellant of his right of due process and right to be free from

unreasonable searches and seizures as protected by the 4th and 14th

Amendments to the United States Constitution and Article 1 §§ 10 and 14

of the Ohio Constitution.

Assignment of Error No. 2: The trial court committed reversible

error and denied appellant due process of law by failing to hold an

evidentiary hearing relative to appellant’s motion to suppress evidence

derived from the interception warrant issued on June 19, 2014.

Assignment of Error No. 3: The trial court erred by imposing

consecutive sentences when its findings made pursuant to R.C.

2929.14(C)(4) are not clearly and convincingly supported by the record.

Assignment of Error No. 4: The trial court erred by engaging in

judicial fact finding when imposing the maximum sentence of 8 years for

Count 4, trafficking in heroin.

5.
 {¶ 9} Appellant’s first assignment of error challenges the trial court’s denial of his

motion to suppress the evidence obtained through the execution of an interception

warrant. R.C. 2933.63 provides:

(A) Any aggrieved person in any trial, hearing, or proceeding in or

before any court, department, officer, agency, regulatory body, or other

authority of this state or of a political subdivision of this state, other than a

grand jury, may request the involved court, department, officer, agency,

body, or authority, by motion, to suppress the contents, or evidence derived

from the contents, of a wire, oral, or electronic communication intercepted

pursuant to sections 2933.51 to 2933.66 of the Revised Code for any of the

following reasons:

(1) The communication was unlawfully intercepted.

(2) The interception warrant under which the communication was

intercepted is insufficient on its face.

(3) The interception was not made in conformity with the

interception warrant or an oral order for an interception granted under

section 2933.57 of the Revised Code.

(4) The communications are of a privileged character and a special

need for their interception is not shown or is inadequate as shown.

6.
 {¶ 10} Appellate review of a trial court’s ruling on a motion to suppress evidence

presents mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8. The Ohio Supreme Court has identified our standard of

review:

[A]n appellate court must accept the trial court’s findings of fact if

they are supported by competent, credible evidence. State v. Fanning

(1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these facts

as true, the appellate court must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d

706, 707 N.E.2d 539. Id.

{¶ 11} Appellant makes three arguments in support of his contention that the

evidence seized pursuant to the interception warrant should have been suppressed. First,

appellant argues that the Sandusky County judge who issued the warrant did not have

jurisdiction. Next, appellant asserts that the application for the warrant failed to contain

the necessary authorization by the Ohio Attorney General pursuant to R.C.

2933.53(B)(9). And third, appellant contends that there was insufficient probable cause

to support the issuance of the warrant. We will address each argument as it was

presented.

7.
 Jurisdiction to Issue the Warrant

{¶ 12} Appellant argues that the logical interpretation of the language in R.C.

2933.53(A), provides that Lucas County rather than Sandusky County had jurisdiction to

issue the warrant as it was the location of the interception. The state counters that

jurisdiction to issue an interception warrant is proper in either the location of the

intercepted communication or the location of the listening device.

R.C. 2933.53 provides, in part:

(A) The prosecuting attorney of the county in which an interception

is to take place or in which an interception device is to be installed, or an

assistant to the prosecuting attorney of that county who is specifically

designated by the prosecuting attorney to exercise authority under this

section, may authorize an application for an interception warrant to a judge

of the court of common pleas of the county in which the interception is to

take place or in which the interception device is to be installed. * * *;

(B) Each application for an interception warrant shall be made in

writing upon oath or affirmation to a judge of the court of common pleas of

the county in which the interception is to take place or in which the

interception device is to be installed, by a person who has received training

that satisfies the minimum standards established by the attorney general and

8.
 the Ohio peace officer training commission under section 2933.64 of the

Revised Code

* * *;

(3) A full and complete statement of the objective in seeking the

warrant, and a full and complete statement of the facts and circumstances

relied on by the applicant to justify the belief that the warrant should be

issued, including, but not limited to the following:

(a) The details regarding the designated offense that has been, is

being, or is about to be committed;

(b) The identity of the person, if known, who has committed, is

committing, or is about to commit the designated offense and whose

communications are to be intercepted and the location at which the

communications are sought to be intercepted;

(c) Except as provided in division (G)(1) of this section, a particular

description of the nature and location of the facilities from which, or the

place at which, the communication is to be intercepted;

{¶ 13} R.C. 2933.51(C) defines “intercept” as “the aural or other acquisition of the

contents of any wire, oral, or electronic communication through the use of an interception

device.” “‘Aural transfer’” means a transfer containing the human voice at a point

between and including the point of origin and the point of reception.” R.C. 2933.51(T).

9.
 {¶ 14} Appellant asserts that the “clear and unambiguous” statutory language

required that the application be made to a judge in the county where the interception, i.e.

the listening device, was to be located. Thus, because the interception occurred in Lucas

County, the warrant must have been obtained there.

{¶ 15} We first note that where the language used in statute is clear and

unambiguous, the statute must be applied as written, and no further interpretation is

necessary. Szuch v. FirstEnergy Nuclear Operating Co., 2016-Ohio-620, 60 N.E.3d 494,

¶ 19 (6th Dist.), citing Vaughn Indus. v. Dimech Servs., 167 Ohio App.3d 634, 2006-

Ohio-3381, 856 N.E.2d 312, ¶ 23 (6th Dist.). If, however, the statute is subject to various

interpretations, “a court called upon to interpret its provisions may invoke rules of

statutory construction in order to arrive at legislative intent.” Cline v. Ohio Bur. of Motor

Vehicles, 61 Ohio St.3d 93, 96, 573 N.E.2d 77 (1991).

{¶ 16} As quoted above, an interception warrant may be obtained in the county

where the “interception is to take place or in which an interception device is to be

installed.” Had the legislature intended that the warrant could only be obtained in the

county where the interception device was located, it could have omitted the word “or”

and the preceding language. Further, in cases where the warrant is issued in the county

where the device is initially installed, it is still valid if the device is later moved- this

10.
distinction would be superfluous if the warrant could only issue where the listening

device was located.1

{¶ 17} Appellant urges that if this court does review case law, it should rely on

Huff v. Spaw, 794 F.3d 543 (6th Cir.2015). Huff, a Title III expectation of privacy case,

involved an international interception of conversations which took place following a

“pocket-dial” of a cell phone. The pocket-dial took place in Italy and the conversation

was overheard and recorded in Kentucky. The court initially considered whether the

alleged interception was beyond the court’s jurisdiction. It noted:

When determining whether an alleged interception is extraterritorial

and therefore beyond the jurisdiction of federal courts as a question arising

under Title III, we do not consider whether the plaintiffs are citizens of the

United States * * * [i]nstead, we look to “where the interception took

place.” (Citations omitted.) Id. at 547.

1
R.C. 2933.58(C) provides:
An interception warrant issued pursuant to sections 2933.53 to 2933.55 of the
Revised Code or an oral order for an interception granted under section 2933.57 of the
Revised Code authorizes the interception of wire, oral, or electronic communications or
the installation of an interception device within the jurisdiction of the court of common
pleas served by the judge who issued the warrant or granted the oral order. The warrant
or oral order is valid at any place if the interception device is installed within the
jurisdiction of the judge who issued the warrant or granted the oral order and is then
moved to another place by persons other than the investigative officers. (Emphasis
added.)

11.
 {¶ 18} The court then determined that jurisdiction was proper because “[t]he

relevant inquiry [wa]s not where the Huffs’ conversations took place, but where Shaw

used a device to acquire the contents of those conversations.” Id.

{¶ 19} Reviewing Huff, we find that it is not persuasive authority. Huff addressed

the jurisdictional issue regarding an international phone call, not the question of the

jurisdiction of a court to issue an interception warrant.

{¶ 20} In addition to the clear language of the statute, we find that the majority of

and more persuasive line of cases provide that an interception warrant may be obtained in

either the county where the tapped phone is located or where law enforcement hears and

records the calls. Interpreting the federal wiretapping statute’s definition of intercept,2

the Eighth Circuit Court agreed with the Second and Fifth Circuits that “a communication

is intercepted not only where the tapped telephone is located, but also where the contents

of the redirected communication are first to be heard.” U.S. v. Henley, 766 F.3d 893, 911

(8th Cir.2014), citing U.S. v. Rodriguez, 968 F.2d 130, 136 (2d Cir.1992), U.S. v.

Denman, 100 F.3d 399, 403 (5th Cir.1996). See also State v. Ates, 86 A.3d. 710

(N.J.2014), State v. McCormick, 719 So.2d 1220 (Fla.App.1998).

2
18 U.S.C. 2510(4) defines “intercept” as “the aural or other acquisition of the contents
of any wire, electronic, or oral communication through the use of any electronic,
mechanical, or other device.[;]”

12.
 {¶ 21} Based on the foregoing, we find that the Sandusky County judge had

jurisdiction to issue the interception warrant.

R.C. 2933.53 Compliance

{¶ 22} Appellant next argues that the application for the interception warrant was

invalid due to its failure to include a written statement from the Ohio Attorney General’s

office as required under R.C. 2933.53(B)(9), which provides:

(B) Each application for an interception warrant shall be made in

writing upon oath or affirmation to a judge of the court of common pleas of

the county in which the interception is to take place or in which the

interception device is to be installed, by a person who has received training

that satisfies the minimum standards established by the attorney general and

the Ohio peace officer training commission under section 2933.64 of the

Revised Code. Each application shall contain all of the following:

* * *;

(9) Unless the attorney general is a subject of the investigation, a

written statement, signed by the attorney general or an assistant attorney

general designated by the attorney general, that the attorney general or

assistant attorney general has reviewed the application and either agrees or

disagrees with the submission of the application to a judge of the court of

13.
 common pleas of the county in which the interception is to take place or in

which the interception device is to be installed. * * *.”

{¶ 23} The state asserts that the letter, though not physically attached to the

application was filed contemporaneously with and considered by the trial court prior to

issuing the warrant and, thus, complied with R.C. 2933.53(B)(9). In response, appellant

further argues that review of the warrant is limited to its four corners and because the

warrant did not mention the letter, we must presume that it was not considered.

{¶ 24} As set forth above, following the September 27, 2017 suppression hearing,

the state supported its compliance argument with the affidavit of Special Agent Noel

which provided that contemporaneous with the application for a search warrant, Agent

Noel submitted to the judge a letter from the Ohio Attorney General’s office in

conformity with R.C. 2933.53(B)(9). Agent Noel stated that after the warrant was

signed, the application, warrant, and letter were filed with the Sandusky County Clerk of

Courts. The letter, signed by the Ohio Attorney General’s general counsel for law

enforcement, was attached to Noel’s affidavit, was file-stamped June 19, 2014, and

provided that the attorney general’s office reviewed the affidavit and application in

support of the interception warrant. Finally, in issuing the warrant the court stated that

the application complied with R.C. 2933.53.

14.
 {¶ 25} Upon review, we conclude that the Ohio Attorney General’s statement was

properly submitted under R.C. 2933.53(B)(9). The safeguards in place to protect against

unauthorized wiretapping were not circumvented.

Substantial Basis for Finding Probable Cause to Issue the Warrant

{¶ 26} Appellant’s final argument regarding the validity of the warrant is that the

affidavit did not provide a substantial basis for a determination of probable cause. The

Supreme Court of Ohio has set forth the following standard of review in reviewing the

sufficiency of probable cause in an affidavit submitted in support of a search warrant:

“[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial

basis for concluding that probable cause existed.” State v. George, 45 Ohio St.3d 325,

544 N.E.2d 640 (1989), paragraph two of the syllabus. Further, “a reviewing court

should accord great deference to the magistrate's determination of probable cause, and

doubtful or marginal cases in this area should be resolved in favor of upholding the

warrant.” Id.

{¶ 27} Appellant contends that the confidential source referenced in the

application lacked the necessary indicia of reliability, that the alleged surveillance failed

to yield any evidence of a crime, and that the reproduced, captured telephone

conversations from an investigation in Detroit, Michigan, were too speculative to provide

evidence of drug trafficking.

15.
 {¶ 28} At the September 27, 2017 suppression hearing the state explained that the

confidential informant, who was only mentioned in one paragraph in the 35-page

application, was the “kick-off” to the investigation. The recorded conversations,

involving “Keith” and Ronald Miller, who was the subject of an intercept warrant out of

Detroit were explained in the application by Agent Noel who had specialized knowledge

of the drug trafficking nomenclature and prior dealings between the parties. The

transcribed calls were dated June 5 and June 29, 2014, within two weeks of the

application.

{¶ 29} Reviewing the application as a whole, we conclude that that the Sandusky

County judge has jurisdiction to issue the warrant, the application for the warrant

complied with the relevant statutory provisions, and there was probable cause to support

the issuance of the warrant. Thus, the trial court did not err when it denied the motion to

suppress and determined that the affidavit established a probability of criminal activity

involving appellant. Appellant’s first assignment of error is not well-taken.

{¶ 30} Appellant, in his second assignment or error argues that the court erred

when it failed to conduct a full evidentiary hearing where the claims in his motion to

suppress were supported by factual allegations. Specifically, appellant argues that at the

September 27, 2017 hearing, the court acknowledged that testimony was needed to

determine the motion. The exchange at issue provided:

16.
 MR. KINSLER: [B]ut our position is that was a part of what was

presented to the – the Judge – the issuing Judge and issuing Judge was

aware of that information when they signed it.

THE COURT: Can I – can I stop there and just ask both coun—is

that something we need to take testimony to determine?

MR. KINSLER: I think – I don’t know, we could maybe ask the

agent that was there to present if that was included in the – I wasn’t actually

physically –

THE COURT: Okay.

MR. KINSLER: -- present for that one, so –

THE COURT: I mean, do we – do we need to find out what the facts

were in order to make a proper decision?

MR. KLUCAS: It’s possible. I mean, that’s really sort of something

that the Court has to make a decision on because you’re the one making the

decision, but –

***

THE COURT: What – what – if if Attorney Kinsler, if you could

acquire an Affidavit –

MR. KINSLER: Yes, I can do that, Your Honor.

MR. KLUCAS: We’ll take a look at that.

17.
 THE COURT: That – you don’t have the right – you can’t cross-

examine an Affidavit.

MR. KLUCAS: I know that.

{¶ 31} The hearing then continued with the state addressing the merits of

appellant’s probable cause argument. Defense counsel responded regarding the good

faith exception argument:

MR. KLUCAS: I think when there’s statutory guidance here as to

what the content of that warrant and that application should be, and you

don’t comply with the statutory guidance, I don’t think good faith exception

would apply to that. That’s all I’m really saying.

{¶ 32} The court and parties then discussed the time-line for the submission of

additional materials, including the filing of the above-referenced affidavit, the court then

stated:

THE COURT: Did you want to raise any further issues regarding

that –

MR. KLUCAS: Uh, huh.

THE COURT: --‘cause that’s the only fact-finding thing I’ve got

here.

MR. KLUCAS: Correct.

THE COURT: And the rest of it is all application of law.

18.
 MR. KLUCAS: Uh, huh.

{¶ 33} The affidavit of Agent Noel was filed on September 29, 2017; appellant, in

a supplemental memorandum, asserted that the affidavit did not cure the deficiency

because the attorney general’s acknowledgment was separate from the application and

was not mentioned in the court’s issuance of the interception warrant. Thus, appellant

contends, construing the “four corners” of the warrant the court must not have considered

the letter in issuing the warrant.

{¶ 34} Reviewing the arguments of the parties, we note that appellant never

objected to the scope and nature of the September 27, 2017 suppression hearing, and

never objected to the state’s subsequent submission of Agent Noel’s affidavit.

Appellant’s counsel’s strategy was to limit the court’s review to the warrant itself (which

contained no mention of the attorney general’s letter agreeing with the application for the

interception warrant) and, strictly construing the requirements of R.C. 2933.53(B)(9),

counsel hoped would lead to the suppression of the evidence obtained through execution

of the warrant. This was sound trial strategy which could have been undermined had the

issuing judge been questioned at a full evidentiary hearing.

{¶ 35} Based on the foregoing, we find that the court did not err in failing to

conduct a full evidentiary hearing prior to ruling on the motion to suppress. Appellant’s

second assignment of error is not well-taken.

19.
 {¶ 36} In his third assignment of error, appellant argues that the trial court erred

when it sentenced him to consecutive sentences when its findings under R.C.

2929.14(C)(4) were not “clearly and convincingly” supported by the record. We review

felony sentences under the two-pronged approach set forth in R.C. 2953.08(G)(2). State

v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11. R.C. 2953.08(G)(2)

provides that an appellate court may increase, reduce, modify, or vacate and remand a

disputed sentence if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under * * * division * * * (C)(4) of section 2929.14 * * *;

(b) That the sentence is otherwise contrary to law.

R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences. It 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 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

20.
 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.

{¶ 37} “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, 2014-Ohio-3177,

16 N.E.3d 659, ¶ 37. “Nor is it required to give a talismanic incantation of the words of

the statute, provided that the necessary findings can be found in the record and are

incorporated into the sentencing entry.” Id. “[A]s 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. at ¶ 29.

21.
 {¶ 38} At appellant’s November 6, 2017 sentencing hearing the court, imposing

consecutive sentences, stated:

Court further finds that in order to adequately punish the Defendant

and to protect the public from future crime and that at least two of the

offenses were committed as part of one or more courses of conduct and the

harm caused by two or more of the offenses was so great that no single

prison term for any of the offenses committed adequately reflects the

seriousness of the Defendant’s conduct, * * *.

This Court finds the sentences not disproportionate to the

seriousness of the Offender’s conduct and to the danger the Offender poses

to the public.

The November 7, 2017 sentencing judgment mirrored the above-quoted language.

{¶ 39} Upon review, we reject appellant’s argument that the consecutive

sentences, imposed pursuant to a “rote recitation” of the statutory language, were not

supported by “findings” in the record. The court complied with the statutory

requirements under R.C. 2929.14(C)(4). Appellant’s third assignment of error is not

well-taken.

{¶ 40} Appellant’s fourth and final assignment of error asserts that at sentencing

the trial court engaged in improper judicial fact-finding when imposing the maximum

22.
eight-year sentence for trafficking in heroin. Appellant takes issue with the following

statement made by the court at sentencing:

Mr. Nettles, the testimony as trial suggests that you introduced

heroin into our community. We, as a community, are now forced to pass

Drug Enforcement levies and choose between vital public services or

providing Narcan and drug treatment to the taxpayers who have shouldered

the responsibility for the devastation you’ve inflicted on our community,

and even more to the families who have lost loved ones to heroin and opiate

addiction. This sentence is a message to my community and its families.

{¶ 41} Reviewing the evidence presented at trial, we agree that there was no direct

testimony that appellant was the first individual to sell heroin in Fremont. However, in at

least one of the intercepted phone calls between appellant and Miller, his supplier, there

was a discussion about appellant diversifying by adding heroin dealing. His

supplier/mentor indicated that appellant could “sew that whole area up,” meaning he

would have a monopoly on the market in Fremont and that people who sell in the

“outskirts” make a lot of money. Referencing a prior sale of heroin, appellant stated that

he was the “number one go getter.” Accordingly, we cannot say that the court abused its

discretion by sentencing appellant to a maximum sentence. Appellant’s fourth and final

assignment of error is not well-taken.

23.
 {¶ 42} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and the judgment of the Sandusky County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________
JUDGE
Arlene Singer, J.
____________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
____________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

24.