State v. Tackett

[Cite as State v. Tackett, 2019-Ohio-4960.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case Nos. 18CA22
: 18CA23
vs. :
: DECISION AND
NATASHA M. TACKETT, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Michael R. Huff, Athens, Ohio, for Appellant.

James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for
Appellee.
_____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from a Meigs County Common Pleas Court judgment

of conviction and sentence. Appellant, Natasha Tackett, pled guilty to one count

of breaking and entering, a fifth-degree felony in violation of R.C. 2911.13(A), and

one count trafficking in drugs, a fifth-degree felony in violation of R.C.

2925.03(A)(2). The trial court sentenced Appellant to twelve-month prison terms

for each offense and ordered that the prison terms be served consecutively. On

appeal, Appellant contends that the trial court committed error by imposing

consecutive sentences without making all of the findings mandated by R.C.
Meigs App. Nos. 18CA22 & 18CA23 2

2929.14(C)(4) and properly incorporating the statutory findings into the sentencing

entries. Because the trial court failed to make the required findings before

imposing consecutive sentences and also failed to incorporate the necessary

findings into the sentencing entries, we conclude Appellant’s sole assignment of

error is meritorious and it is sustained. Accordingly, the sentences imposed by the

trial court are hereby vacated and the matter is remanded to the trial court for a

new sentencing hearing.

FACTS

{¶2} Appellant, Natasha Tackett, was indicted on February 15, 2018 for one

count of breaking and entering, a fifth-degree felony in violation of R.C.

2911.13(A), stemming from an incident that occurred on January 3, 2018. She was

later indicted on April 11, 2018, on one count of trafficking in drugs, a fifth-degree

felony in violation of R.C. 2925.03(A)(2) and (C)(2)(a), stemming from an

incident that occurred on September 21, 2017. The two cases proceeded through

the litigation process below and were never consolidated. However, it appears

Appellant entered into plea negotiations with the State which resulted in her

entering guilty pleas to both charges in exchange for a jointly recommended

sentence. The terms of the plea agreement required Appellant to enter guilty pleas

to both charges in exchange for the State’s recommendation that she be sentenced

to a twelve-month prison term for her conviction for trafficking in drugs, and that
Meigs App. Nos. 18CA22 & 18CA23 3

she be sentenced to a five-year term of community control for her breaking and

entering conviction, to be served upon completion of her prison term.

{¶3} On the day of her sentencing hearing Appellant submitted to a drug

screen. The trial court stated on the record that the results of the drug screen

indicated Appellant had Amphetamines, Methamphetamines, Suboxone and “Oxy”

in her system.1 Appellant disputed the results of the screen and asked for further

testing, however, the record before us does not contain any further test results or

updated information. Thereafter, by separate entries dated August 30, 2018, the

trial court sentenced Appellant to twelve-month prison terms for both offenses and

ordered them to be served consecutively for a total prison term of twenty-four

months.

{¶4} Appellant filed a pro se motion for leave to file delayed appeals in both

cases on February 7, 2019. Her motion was granted by this Court on April 3,

2019. These cases were consolidated for purposes of appeal and Appellant was

appointed counsel. Now, on appeal, Appellant raises a single assignment of error

for our review and consideration.

ASSIGNMENT OF ERROR

I. “THE TRIAL COURT COMMITTED ERROR BY IMPOSING
CONSECUTIVE SENTENCES BUT FAILED TO MAKE
ALL THE FINDINGS MANDATED BY R.C. 2929.14(C)(4)
1
The State attached a copy of what purports to be Appellant’s drug screen results to its appellate brief. However,
because it does not appear the test results were made part of the record below, they are not part of the record for
purposes of appeal.
Meigs App. Nos. 18CA22 & 18CA23 4

AND PROPERLY INCORPORATING ITS STATUTORY
FINDINGS INTO THE SENTENCING ENTRIES.”

LEGAL ANALYSIS

{¶5} In her sole assignment of error Appellant contends that the trial court

erred in imposing consecutive sentences without making all of the findings

required by R.C. 2929.14(C)(4) and without properly incorporating the necessary

statutory findings into the sentencing entries. More specifically, Appellant argues

that the trial court “failed to comment in any way on the proportionality language

of the initial language of (C)(4)” and thus failed to 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.” Appellant further argues that although

the trial court stated consecutive sentences were “necessary to protect the public,”

it failed to further state that they were necessary to protect the public “from future

crime.” Appellant also notes that although the trial court found the offenses were

“part of a course of conduct,” the offenses were committed on two different dates

and were unrelated. Finally, Appellant argues that the trial court failed to

incorporate the necessary findings into the sentencing entries, and instead simply

stated “the Court makes the appropriate findings to impose said consecutive

sentence as required by Section 2929.14(C)(4) of the Revised Code.” The State

responds by arguing that “[t]he trial court did not commit error by imposing

consecutive sentences because the trial court made all the findings mandated by
Meigs App. Nos. 18CA22 & 18CA23 5

R.C. 2929.14(C)(4) and properly incorporated its statutory findings into the

sentencing entries.”

{¶6} Generally, appellate courts review felony sentences under the standard

set forth in R.C. 2953.08(G)(2). State v Blanton, 4th Dist. Adams No. 16CA1031,

2018-Ohio-1275, ¶ 97; State v. Bever, 4th Dist. Washington No. 13CA21, 2014-

Ohio-600, ¶ 13. That statute directs an appellate court to “review the record,

including the findings underlying the sentence,” and to modify or vacate the

sentence “if it clearly and convincingly finds * * * (a) [t]hat the record does not

support the sentencing court's findings under division * * * (C)(4) of section

2929.14 * * * of the Revised Code * * * [or] (b) [t]hat the sentence is otherwise

contrary to law.” R.C. 2953.08(G)(2). This means that the appellate court must

clearly and convincingly find that the record does not support the trial court's

findings, which is an extremely deferential standard of review. Blanton at ¶ 99;

State v. Bass, 4th Dist. Washington No. 16CA32, 2017-Ohio-7059, ¶ 7.

{¶7} “[I]n order to impose consecutive terms of imprisonment, a trial court

is required to make 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, ¶ 29. A failure to make the findings

required by R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law.
Meigs App. Nos. 18CA22 & 18CA23 6

State v. Bever, supra, at ¶ 17; State v. Stamper, 12th Dist. Butler No. CA2012–08–

166, 2013–Ohio–5669, ¶ 23. Specifically, the sentencing court must find, pursuant

to R.C. 2929.14(C)(4) that: (1) “the consecutive sentence is necessary to protect

the public from future crime or to punish the offender”; (2) “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 (3) one 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.

(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
Meigs App. Nos. 18CA22 & 18CA23 7

public from future crime by the offender.

{¶8} A review of the record before us reveals that the trial court failed to

make a finding that consecutive sentences were not disproportionate to the

seriousness of the offender's conduct and to the danger the offender posed to the

public. It appears that although the trial court did make an earlier statement that

included the word “proportionate” under its general consideration of the overriding

principles and purposes of felony sentencing as required by R.C. 2929.11, 2929.12

and 2929.13, it did not make such a finding as to the imposition of consecutive

sentences under R.C. 2929.14. For instance, the trial court stated as follows:

The Court is also ensuring that sentence is not based on

impermissible purposes, and is consistent with other similar

offenses committed by like offenders, is proportionate harm

caused the impact upon any victim. [sic].

However, when the trial court transitioned into its justifications for imposing

consecutive sentences, the court only stated as follows:

Um, the Court is going to make a finding also pursuant to

twenty-nine, twenty-nine fourteen “c” four (2929.14)(C)(4),

that two (2) or more offenses are part of a course of conduct

and the harm caused is so great or unusual that a single

prison term will not accurately reflect the seriousness of
Meigs App. Nos. 18CA22 & 18CA23 8

the conduct or criminal history. It demonstrates that consecutive

sentences are necessary to protect the public.

{¶9} Thus, as argued by Appellant, there was no finding made by the

trial court in reference to the imposition of consecutive sentences that

“consecutive sentences are not disproportionate to the seriousness of the

offender's conduct and to the danger the offender poses to the public,” or

that they were necessary to protect to the public “from future crime by the

offender.” This Court recently held in State v. Robinson, a case involving an

essentially identical argument and involving the same court, that findings in

support of the imposition of consecutive sentences “must be separate and

distinct, in addition to any findings that relate to the purposes and goals of

criminal sentencing.” State v. Robinson, 2019-Ohio-2155, -- N.E.3d –, ¶ 33

(4th Dist. 2019), citing State v Blanton, supra, at ¶ 96 and State v. Bever,

supra, at ¶ 17. As a result, we must find that here, the record before us

demonstrates the trial court failed to make the necessary findings before

imposing consecutive sentences.

{¶10} Further, based upon the record before us, it appears the trial court

erred in finding that the offenses at issue here were committed as “part of a course

of conduct.” As noted by Appellant in her brief, the two offenses at issue were

committed on separate dates and there is nothing in the record before us to indicate
Meigs App. Nos. 18CA22 & 18CA23 9

they were related. Appellant was indicted on February 15, 2018, on one count of

breaking and entering that occurred on January 3, 2018. Appellant was later

indicted on April 11, 2018, on one count of trafficking in drugs that occurred on

September 21, 2017. There is no evidence in the record explaining how these two

offenses were related or were committed as part of one or more courses of conduct.

The same error was also found in State v. Robinson, supra, and resulted in the

sentences being vacated. State v. Robinson at ¶ 35. In Robinson, we reasoned that

“[t]ypically, a finding of the course of conduct factor is reserved for multiple

instances or related acts.” (Citation omitted.) Id. In the case presently before us

there is simply no evidence that these two offenses were even related. In the

absence of such evidence we cannot find that the record supports this finding made

by the trial court.

{¶11} Finally, Appellant argues that the trial court erred in failing to

incorporate the statutory findings required for the imposition of consecutive

sentences into the sentencing entries. As Appellant notes, a review of the

sentencing entries here reveals that the trial court did not include any specific

findings in support of consecutive sentences in the sentencing entries. Instead, the

trial court simply stated that “[t]he Court makes the appropriate findings to impose

said consecutive sentence as required by Section 2929.14(C)(4) of the Ohio

Revised Code.” The initial problem with this statement is that, as discussed above,
Meigs App. Nos. 18CA22 & 18CA23 10

the court did not make the “appropriate findings to impose said consecutive

sentence[s]” on the record at the sentencing hearing. Thus, this statement is

factually inaccurate. The exact same issue was presented in State v. Robinson,

supra, at ¶ 36. In Robinson we described the court’s statement as only a “cursory

statement” and held that because the trial court had failed to actually make the

necessary findings on the record during the sentencing hearing, the trial court

failed to comply with R.C. 2929.14(C) and State v. Bonnell, supra, at ¶ 37. In

Bonnell, the Supreme Court of Ohio held that “[i]n 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 * * *.” Id. We cannot conclude that a generic reference to

findings made at the sentencing hearing constitutes incorporating the findings into

the sentencing entry, as contemplated by Bonnell, especially when the findings

made on the record at the sentencing hearing were deficient.

{¶12} Therefore, we conclude the trial court did not adequately comply with

R.C. 2929.14(C) and did not adequately provide the necessary support for the

course of conduct finding. As such, the consecutive sentences imposed were

contrary to law. Furthermore, not only did the trial court fail to make the necessary

findings at the sentencing hearing, it failed to specifically incorporate any of its

findings into the sentencing entry consistent with the dictates of State v. Bonnell,
Meigs App. Nos. 18CA22 & 18CA23 11

supra. Thus, in light of the foregoing, Appellant’s sole assignment of error is

sustained, the sentences imposed by the trial court are hereby vacated, and the

matter is remanded to the trial court for a new sentencing hearing.

JUDGMENT REVERSED AND CAUSE REMANDED FOR
RESENTENCING CONSISTENT WITH THIS OPINION.
Meigs App. Nos. 18CA22 & 18CA23 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION.
Costs be assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Meigs County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: __________________________________
Jason P. Smith, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.