State v. Crowe

[Cite as State v. Crowe, 2019-Ohio-5300.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-19-16

v.

ARLANDO C. CROWE, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court
Trial Court No. 18 CR 0181

Judgment Affirmed

Date of Decision: December 23, 2019

APPEARANCES:

Sarah R. Anjum for Appellant

Derek W. DeVine for Appellee
Case No. 13-19-16

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Arlando C. Crowe (“Crowe”), appeals the May

15, 2019 judgment entry of sentence of the Seneca County Court of Common Pleas.

We affirm.

{¶2} On September 12, 2018, the Seneca County Grand Jury indicted Crowe

on seven counts: Counts One and Two of trafficking in cocaine in violation of R.C.

2925.03(A)(1), (C)(4)(a), fifth-degree felonies; Counts Three, Four, Five, and

Seven of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1),

(C)(1)(a), fourth-degree felonies; and Count Six of aggravated possession of drugs

in violation of R.C. 29253.11(A), (C)(1)(a), a fifth-degree felony. (Doc. No. 6).

The indictment also included forfeiture specifications. (Id.). Crowe appeared for

arraignment on September 24, 2018 and entered pleas of not guilty. (Doc. No. 13).

{¶3} On March 15, 2019, Crowe withdrew his pleas of not guilty and entered

guilty pleas, under a negotiated-plea agreement, to Counts One, Two, Three, and

Four of the indictment. (Doc. No. 30). Crowe further agreed to forfeit the property

identified in the forfeiture specifications. (Id.); (Doc. No. 31). In exchange for his

change of pleas, the State agreed to dismiss Counts Five, Six, and Seven. (Id.). The

trial court accepted Crowe’s guilty pleas, found him guilty, dismissed Counts Five,

-2-
Case No. 13-19-16

Six, and Seven, and ordered a presentence investigation (“PSI”).1 (Doc. No. 32).

(See also Doc. No. 36).

{¶4} On May 14, 2019, the trial court sentenced Crowe to 10 months in

prison on Counts One, Two, and Three, respectively, and 14 months in prison on

Count Four.2 (Doc. No. 37). The trial court further ordered Crowe to serve the

sentences consecutively for an aggregate term of 68 months in prison.3 (Id.). The

trial court filed its judgement entry of sentence on May 15, 2019. (Id.).

{¶5} On May 28, 2019, Crowe filed a notice of appeal, and raises one

assignment of error for our review. (Doc. No. 39).

Assignment of Error

The Trial Court Erred in Imposing Consecutive Sentences
without Making All Findings as Required by R.C. 2929.14(C)(4)

{¶6} In his assignment of error, Crowe argues that the trial court failed to

make the necessary findings under R.C. 2929.14(C)(4) to impose consecutive

sentences.

Standard of Review

{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

1
The trial court filed a nunc pro tunc judgment entry of conviction on May 2, 2019. (Doc. No. 35).
2
The trial court amended Count Four to trafficking in a fentanyl related compound in violation of R.C.
2925.03(A)(1), (C)(9)(a), a fifth-degree felony. (Doc. No. 37).
3
The trial court re-imposed a 24-month prison sentence imposed in another case and ordered that Crowe
serve that sentence consecutively to the consecutive sentences imposed in this case. (May 14, 2019 Tr. at
16).

-3-
Case No. 13-19-16

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. 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.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

Analysis

{¶8} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)

provides:

(4) * * * [T]he 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.

(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

-4-
Case No. 13-19-16

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.

{¶9} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-

24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

{¶10} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and is not

“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.” Bonnell at ¶ 37.

-5-
Case No. 13-19-16

{¶11} On appeal, Crowe argues only that the trial court failed to state

whether “consecutive sentences are necessary to protect the public from future

crime or to punish the offender.” (Appellant’s Brief at 7). Crowe does not dispute

that the trial court “correctly ma[d]e the remainder of the requisite findings” or that

the record does not support the trial court’s findings. (Id.). Contrary to Crowe’s

argument on appeal, the trial court’s statement at the sentencing hearing that

“consecutive sentences are necessary to fulfill the purposes of Revised Code Section

2929.11 and not disproportionate to the seriousness of his conduct or the danger he

poses”—also incorporated into the trial court’s sentencing entry—conveys that the

trial court engaged in the correct analysis. (May 14, 2019 Tr. at 16-17). See Bonnell

at ¶ 29 (“However, a word-for-word recitation of the language of the statute is not

required, and 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.”).

{¶12} Although the trial court stated that consecutive sentences were

necessary to fulfill the purposes of R.C. 2929.11, given the similarities between the

language of R.C. 2929.11(A) and that of R.C. 2929.14(C)(4), we are able to discern

that the trial court considered the purposes of R.C. 2929.11—the need “to protect

the public” or “to punish the offender”—for purposes of R.C. 2929.14(C)(4). See

State v. Lambert, 2d Dist. Champaign No. 2018-CA-28, 2019-Ohio-2837, ¶ 38,

-6-
Case No. 13-19-16

citing State v. Fields, 10th Dist. Franklin No. 16AP-417, 2017-Ohio-661, ¶ 20; R.C.

2929.11. Compare State v. Graham, 2d Dist. Montgomery No. 25934, 2014-Ohio-

4250, ¶ 41 (concluding that it was “unclear from the court’s summary whether it

concluded that Graham’s criminal history demonstrated that consecutive sentences

were necessary to protect the public from future crime by the offender” because “the

trial court’s statements do not reflect whether it considered those matters for

purposes of R.C. 2929.11 or R.C. 2929.14(C)(4)”). That is, the trial court’s R.C.

2929.14(C)(4) findings were separate and distinct from its reference to the purposes

and principles of felony sentencing under R.C. 2929.11. See State v. Simmons, 8th

Dist. Cuyahoga No. 107813, 2019-Ohio-3100, ¶ 12. See also State v. Marshall,

12th Dist. Warren No. CA2013-05-042, 2013-Ohio-5092, ¶ 12 (“Compliance with

R.C. 2929.14(C)(4) requires separate and distinct findings in addition to any

findings related to the purposes and principles of sentencing within R.C. 2929.11 or

the recidivism factors within R.C. 2929.12.”), citing State v. Venes, 8th Dist.

Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 17, citing State v. Edmonson, 86 Ohio

St.3d 324, 326 (1999). Indeed, the trial court first considered the principles and

purposes of felony sentencing under R.C. 2929.11 prior to imposing Crowe’s

sentence. Then, in its consecutive-sentence analysis, the trial court again referenced

the purposes of R.C. 2929.11 in its consecutive-sentence imposition. Likewise, and

-7-
Case No. 13-19-16

most importantly, the trial court also added that consecutive sentences were

necessary for the “danger [Crowe] poses.” (May 14, 2019 Tr. at 17).

{¶13} For these reasons, we conclude that the record reflects that the trial

court made the appropriate R.C. 2929.14(C)(4) findings before imposing

consecutive sentences and incorporated those findings into its sentencing entry.

Therefore, Crowe’s sentence is not contrary to law.

{¶14} Crowe’s assignment of error is 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

SHAW and PRESTON, J.J., concur.

/jlr

-8-