State v. Reed

[Cite as State v. Reed, 2020-Ohio-4020.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-19-34

v.

CODY JAMES REED, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-19-35

v.

CODY JAMES REED, OPINION

DEFENDANT-APPELLANT.

Appeals from Logan County Common Pleas Court
Trial Court Nos. CR 16 02 0066 and CR 17 07 0228

Judgment Affirmed in Part, Reversed in Part and Cause Remanded
in Case No. 8-19-34 and Judgment Affirmed in Case No. 8-19-35

Date of Decision: August 10, 2020

APPEARANCES:

Eric J. Allen for Appellant

Sarah J. Warren for Appellee
Case No. 8-19-35

ZIMMERMAN, J.

{¶1} Defendant-appellant, Cody James Reed (“Reed”) appeals the April 30,

2019 judgment entries of sentencing of the Logan County Common Pleas Court.

For the reasons that follow, we affirm in part and reverse in part the judgment of the

trial court in case number CR-16-02-0066, assigned appellate case number 8-19-34,

and affirm case number CR17-07-0228, assigned appellate case number 8-19-35.

{¶2} This genesis of this appeal is Reed’s failure to successfully complete

intervention in lieu of conviction (“ILC”) as a result of a series of violations of the

trial court’s orders resulting in the trial court terminating Reed’s ILC and imposing

consecutive-prison sentences.

{¶3} On March 8, 2016, the Logan County Grand Jury indicted Reed in case

number CR16-02-0066 on two criminal counts including: Count One of breaking

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

of theft in violation of R.C. 2913.02(A)(1), a first-degree misdemeanor. (Case No.

CR16-02-0066; Doc. No. 4).

{¶4} Reed appeared for arraignment and entered pleas of not guilty on March

11, 2016. (Case No. CR16-02-0066; Doc. No. 10).

{¶5} On August 24, 2016, Reed filed a motion for ILC.1 (Case No. CR16-

02-0066; Doc. No. 26). Thereafter and on November 30, 2016, the trial court

1
Reed executed a speedy trial waiver in open court on August 29, 2019 which was file stamped August 30,
2016. (Case No. CR16-02-0066; Doc. No. 27).

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granted Reed’s motion for ILC under a negotiated-plea agreement. (Case No.

CR16-02-0066; Doc. Nos. 33, 35). The trial court’s judgment entry granting Reed’s

ILC ordered all criminal proceedings to be stayed and placed Reed under the

intensive supervision of the Adult Parole Authority (“APA”) (as if on community

control) for a period not to exceed three years.2 (Case No. CR16-02-0066; Doc. No.

35). The judgment entry was filed on December 1, 2016. (Id.).

{¶6} On April 14, 2017, the State filed a motion for revoke ILC after it was

alleged that “[o]n or about April 7, 2017 [Reed] entered 250 Bentz, Lakeview, Ohio

without the consent of the owner or person authorized to given consent” and

thereafter was charged with “Failure to Control” a motor vehicle with heroin and

drug paraphernalia “in [his] possession, or under [his] control.”3 (Case No. CR16-

02-0066; Doc. No. 44). At his revocation hearing held on May 17, 2017, Reed

waived his right to an evidentiary hearing and entered an admission to the

community control violation. (Case No. CR16-02-0066; Doc. No. 50). Thereafter,

2
The trial court ordered that Reed abide by the terms and conditions of his treatment plan which included:
1) “complet[ing] his treatment program at [Consolidated Care Inc. (“CCI”)]”; 2) “attend[ing] two [alcoholics
anonymous-/narcotics-anonymous meetings] per week”; and 3) “follow[ing] any recommendations of the
treatment provider including a residential treatment program.” (Case No. CR16-02-0066; Doc. No. 35).
Further, he was ordered to “abstain from the use of illegal drugs and alcohol, participate in treatment and
recovery support services * * *, [and] submit to regular random testing for drug and alcohol use and
participate in the probation incentive program.” (Id.). In addition to the foregoing, Reed was ordered to pay
the cost of prosecution and restitution in amount of $386.05. (Id.).
3
“Deputies were dispatched [in reference] to a hit skip at 445 North Main Street, Lakeview, Logan County,
Ohio. While en route, they were told the vehicle was located at 250 Bentz Street, Lakeview.” (Case No.
CR17-07-0228; Doc. No. 19). On arrival, the deputies discovered that Reed (the driver of the vehicle) had
thrown three capsules containing heroin, drug paraphernalia, and his wallet inside of the front door of the
residence at that address. (Id.). The victim (homeowner) told deputies that Reed had entered the residence
without her permission, offered her $1,000 to say she was the driver of the vehicle, and began throwing the
items described on the floor. (Id.).

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the trial court determined that Reed had violated the terms of ILC, but permitted

Reed’s ILC to remain in effect with the following additional sanctions and

conditions imposed: 1) Reed was ordered to participate in Adult Recovery Court

(“ARC”), and 2) to pay the cost of the prosecution and fees under R.C. 2929.18(A)

and 2947.23. (Id.). The trial court’s judgment entry was filed on May 18, 2017. 4

(Id.).

{¶7} Thereafter, on July 11, 2017, the Logan County Grand Jury indicted

Reed on criminal charges (stemming from the April 7, 2017 incident) in case

number CR17-07-0228: Count One of possession of heroin in violation of R.C.

2925.11(A), a fifth-degree felony, and Count Two of trespass in a habitation in

violation of R.C. 2911.12(B), a fourth-degree felony. (See Case No. CR16-02-0066,

Doc. No. 44); (Case No. CR17-07-0228; Doc. Nos. 2, 19). On July 14, 2017, Reed

appeared for arraignment and entered pleas of not guilty. (Case No. CR17-07-0228;

Doc. No. 14).

{¶8} However, as a result of Reed’s failure to comply with the orders of the

APA in case number CR16-02-0066, a bench warrant was issued for Reed’s arrest

4
On June 8, 2017, Reed executed the ARC-Participation Agreement. (Case No. CR16-02-0066; Doc. No.
56). Reed was later granted work release on September 29, 2017. (Case No. CR16-02-0066; Doc. No. 57).

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on November 1, 2017.5 (Case No. CR16-02-0066; Doc. No. 58). Furthermore,

Reed failed to appear for his change-of-plea hearing on November 3, 2017, in case

number CR17-07-0228, so a second bench warrant was issued for his arrest on

November 6, 2017.6 (Case No. CR17-07-0228; Doc. No. 25, 26). Reed was

apprehended on the bench warrants on February 6, 2018 and was served with the

warrants in the Clark County Jail.7 (Case No. CR16-02-0066; Doc. No. 62); (Case

No. CR17-07-0228; Doc. No. 30).

{¶9} Thereafter and on February 20, 2018, the APA filed another request to

revoke Reed’s community control in case number CR16-02-0066. (Case No. CR16-

02-0066; Doc. No. 64). At his revocation hearing held on March 9, 2018, Reed,

once more, waived his right to an evidentiary hearing and entered an admission to

the allegations in the affidavit. (Case No. CR16-02-0066; Doc. No. 74). The trial

court determined that Reed had violated the terms and conditions of ILC, but again,

chose not to revoke his ILC. (Case No. CR16-02-0066; Doc. No. 74). Instead, the

5
Reed had previously tested positive for drug use on drug screens and had offered an adulterated-urine
sample (which contained apple juice) for a drug screen on November 1, 2017. (Apr. 29, 2019 Tr. at 16).
After being confronted by ARC and Family Treatment Court staff, he absconded. (Id.). It was determined
that Reed had used alcohol on November 1, 2017, which was prohibited under the trial court’s orders and the
terms and conditions of his treatment plan. (See Case No. CR16-02-0066; Doc. Nos. 5, 64); (Mar. 28, 2019
Tr. at 6).
6
Prior to Reed’s apprehension on the bench warrants and on January 8, 2018, he used Fentanyl which was
also prohibited under the trial court’s orders and terms of and conditions of his treatment plan. (See Case
No. CR16-02-0066; Doc. Nos. 35, 64); (Mar. 28, 2019 Tr. at 6).
7
Reed was serving a 24-day jail term for falsification. (PSI).

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trial court ordered ILC to continue, but committed him into a drug treatment

program at West Central Community Correctional Facility (“CBCF”).8 (Id.).

{¶10} On March 9, 2018, Reed withdrew his pleas of not guilty in case

number CR17-07-0228 and entered guilty pleas to the indictment under a

negotiated-plea agreement. (Case No. CR17-07-0228; Doc. No. 37). The trial court

accepted Reed’s guilty pleas, found him guilty, and noted that a presentence

investigation report (“PSI’) was recently prepared in case number CR16-02-0066.9

(Id.). Thereafter, the trial court ordered Reed’s sentencing hearing be scheduled

upon his release from the CBCF. (Id.). The judgment entry was journalized on

March 14, 2018 in the trial court. (Id.). However, on September 4, 2018, the trial

court vacated its judgment entry of conviction (in CR17-07-0228), and granted Reed

leave to file a motion for ILC in that case.10 (Case No. CR17-07-0228; Doc. Nos.

44, 48).

{¶11} Ultimately, Reed filed his motion for ILC and was placed on ILC in

case number CR17-07-0228 on September 11, 2018. (Case No. CR17-07-0228;

8
The trial court ordered Reed to successfully complete CBCF’s program and any aftercare treatment
recommended; that he pay the cost of the prosecution and fees under R.C. 2929.18(A) and 2947.23; that Reed
pay for the legal services rendered by reimbursing Logan County for the approved-attorney’s fees; that Reed
be assessed for ARC upon his release from CBCF; and that he complete a treatment program with CCI
including any referrals. (Case No. CR16-02-0066; Doc. No. 74). The judgment entry in case number CR16-
02-0066 was filed on March 21, 2018. (Id.). Reed was later accepted into ARC in connection with case
number CR16-02-0066 on September 17, 2018. (Case No. CR16-02-0066; Doc. No. 78).
9
Reed executed a speedy-trial waiver in open court on March 9, 2018 which was file stamped on March 15,
2018. (Case No. CR17-07-0028; Doc. No. 38).
10
Reed filed a motion for a referral and request for admittance and acceptance into ARC on September 5,
2018 as well as executed the ARC-Participation Agreement in case number CR17-07-0228. (Case No. CR17-
07-0228; Doc. No. 46).

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Doc. Nos. 48, 49). The judgment entry granting his ILC motion was filed on

September 18, 2018. (Id.).

{¶12} Nevertheless, on February 28, 2019, the State filed a motion

requesting Reed’s ILC be suspended alleging his whereabouts were unknown.

(Case No. CR16-02-0066; Doc. No. 79); (Case No. CR17-07-0228; Doc. No. 53).

The trial court journalized a judgment entry suspending Reed’s ILC and issued a

bench warrant for his arrest in both his cases. (Id.); (Id.). On March 8, 2019, Reed

was apprehended on the bench warrants in the Logan County Jail.11 (Case No.

CR16-02-0066; Doc. No. 82); (Case No. CR17-07-0228; Doc. No. 56).

{¶13} On March 14, 2019, the State filed a motion for revoke ILC after it

was alleged that “[o]n or about March 14, 2019[, Reed] failed to complete[ ARC]

as ordered by the Logan County Common Pleas Court.”12 (Case No. CR16-02-

0066; Doc. No. 85); (Case No. CR17-07-0228; Doc. Nos. 59, 60). At his revocation

hearing held on April 29, 2019, the trial court found that Reed had violated the terms

of his ILC, terminated Reed’s ILC, and entered its findings of guilt as to Counts

One and Two in both cases.13 (Case No. CR16-02-0066; Doc. No. 92); (Case No.

CR17-07-0228; Doc. No. 66).

11
Reed had been arrested in Logan County and charged with operating a vehicle under the influence of
alcohol or drugs-OVI on February 23, 2019 in Bellefontaine Municipal Court after fleeing a traffic stop and
being located in a nearby basement where he was drug screened testing positive for THC and Fentanyl. (PSI).
12
Reed was terminated from ARC unsuccessfully. (Case No. CR16-02-0066; Doc. No. 88); (Case No. CR17-
07-0228; Doc. No. 62).
13
The trial court further ordered the APA to prepare an updated PSI. (Case No. CR16-02-0066; Doc. No.
92); (Case No. CR17-07-0228; Doc. No. 66).

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{¶14} On April 29, 2019, the trial court sentenced Reed in case number

CR16-02-0066 to a 12-month prison term as to Count One and 90 days in jail as to

Count Two. (Case No. CR16-02-0066; Doc. No. 92). The jail term ordered by the

trial court in Count Two was ordered to be served consecutive to Count One.14 (Id.).

Further, the trial court sentenced Reed in case number CR17-07-0228 to a 12-month

prison term as to Count One and 18-month prison term as to Count Two with Count

Two ordered to be served consecutive to Count One.15 (Case No. CR17-07-0228;

Doc. No. 67). Lastly, the trial court ordered the prison terms in case number CR17-

07-0228 to be served consecutively to the prison and jail terms imposed in case

number CR16-02-0066. (Id.). The judgment entries were filed on April 30, 2019.

(Case No. CR16-02-0066; Doc. No. 92); (Case No. CR17-07-0228; Doc. No. 67).

{¶15} Reed filed his notices of appeal on July 5, 2019, which we have

consolidated for the purpose of this appeal.16 (Case No. CR16-02-0066; Doc. No.

102); (Case No. CR17-07-0228; Doc. No. 82). He raises two assignments of error

for our review, and for ease of discussion, we will address those assignments of

error together.

14
The trial court then determined that Reed was entitled to 311 days’ jail-time credit. (Case No. CR16-02-
0066; Doc. No. 92).
15
The trial court further determined that Reed was entitled to 0 days’ jail-time credit in case number CR17-
07-0228. (Case No. CR17-07-0228; Doc. No. 67).
16
We note Reed’s former-appellate counsel filed a brief and motion for leave to withdraw from representation
under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We ultimately concluded that the appeal
was not “‘wholly frivolous’ and lacking of any legal points with at least arguable merit to raise on appeal.”
(Case No. CR16-02-0066; Doc. Nos. 111, 112). We granted appellate counsel leave to withdraw, appointed
new appellate counsel under Loc.R. 8, and ordered the newly appointed counsel to address the arguable issue
identified by this court (i.e., Assignment of Error I). (Id.).

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Assignment of Error I

The Trial Court Erred In Ordering That The Misdemeanor Theft
Count Be Served Consecutive To The Felony Counts In
Contravention To State Law [sic]

Assignment of Error II

The Trial Court Erred By Making No Findings On The Record
Regarding Appellant Serving The Term Of Years Consecutive
[sic]

{¶16} In his first assignment of error, Reed argues that the trial court erred

by imposing consecutive sentences in case number CR16-02-0066. Specifically,

that the misdemeanor-jail term (as to Count Two) which the trial court ordered to

be served consecutive to his prison term (as to Count One) is contrary to law under

R.C. 2929.41(A). In his second assignment of error, Reed argues that the trial court

erred in ordering maximum, consecutive sentences as to the felony convictions in

case number CR16-02-0066 (as to Count One) and CR17-07-0228 (as to Counts

One and Two) under R.C. 2929.14(C) by failing to make the necessary findings

before imposing consecutive sentences.

Standard of Review

{¶17} 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

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,

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¶ 1. See State v. Jung, 8th Dist. Cuyahoga No. 105928, 2018-Ohio-1514, ¶ 14

(applying the standard of review set forth in R.C. 2953.08(G)(2) to review a

sentence imposed after the defendant’s community control was revoked). See also

State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, ¶ 11, (concluding that a

community-control-revocation hearing is a sentencing hearing for the purposes of

R.C. 2929.19(A) and Crim.R. 32(A)(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.’” Marcum at ¶ 22, quoting Cross v. Ledford,

161 Ohio St. 469 (1954), paragraph three of the syllabus.

Analysis

{¶18} R.C. 2929.41(A) provides in its pertinent parts:

Except as provided in division (B) of this section, 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. Except as provided in division
(B)(3) of this section, a jail term or sentence of imprisonment for
misdemeanor shall be served concurrently with a prison term or
sentence of imprisonment for felony served in a state or federal
correctional institution.

(Emphasis added.) R.C. 2929.41(A). Reed’s conviction under Count Two in case

number CR16-02-0066 is a misdemeanor and is not one of the enumerated

exceptions under R.C. 2929.41(B)(3), which permits the trial court to impose a jail

term or sentence of imprisonment for a misdemeanor violation. Thus, R.C.

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2929.41(A) is applicable and requires a concurrent sentence under the facts

presented. Accordingly, based on our review of the record, the trial court’s sentence

in CR16-02-0066 is contrary to law. As such, the April 30, 2019 judgment entry of

sentence in case number CR16-02-0066 of the Logan County Common Pleas Court

is reversed as to the sentence imposed in Reed’s misdemeanor conviction, and we

remand this portion of the appeal to the trial court for further proceedings consistent

with this opinion.

{¶19} Next, we address Reed’s assertion that the trial court’s sentence (of

consecutive sentences in prison) is contrary to law because the trial court failed to

make the necessary findings before imposing consecutive sentences. Revised Code

2929.14(C) provides:

(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.

(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

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the course 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.

R.C. 2929.14(C)(4)(a)-(c).

{¶20} Revised Code 2929.14(C)(4) requires the trial court to make specific

findings on the record when 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.

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

hearing when 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. Bonell, 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.

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{¶22} Here, the trial court stated its findings in open court at Reed’s

sentencing hearing. (Apr. 29, 2019 Tr. at 23-24, Doc. No. 110). Specifically, the

trial court stated:

[Trial Court]: [w]e must now concern ourselves with why

consecutive sentences. I am going to order that the

case ending in 28 be served consecutive to one

another; that is, Counts 1 and 2 will be consecutive to

one another and will be consecutive to the sentence

announced in 66. The reason for that is because these

are necessary to punish the offender and protect the

public from his future crime. Also, the Court notes

that his behavior has been spiraling and he now poses

a danger to the public. One cannot help but notice that

many of these offenses were committed while he was

already on some sort of community control, treatment

in lieu of conviction, and that the offender’s criminal

history demonstrates that consecutive sentences are

necessary to protect the public.

(Id.). See R.C. 2929.14(C)(4)(a), (c). Later, the trial court incorporated those

findings into the sentencing entries. (Case No. CR16-02-0066; Doc. No. 92); (Case

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No. CR17-07-0228; Doc. No. 67). As such, the record reveals the trial court did

not err by imposing consecutive-felony-prison terms in the cases before us.

Accordingly, Reed’s second assignment of error is overruled.

{¶23} Having reviewed the particulars assigned and argued, the judgment of

the Court of Common Pleas of Logan County in case number CR16-02-0066,

assigned appellate case number 8-19-34, is affirmed in part and reversed in part, and

the matter is remanded for further proceedings in accordance with this opinion.

{¶24} However, having found no error prejudicial to the appellant herein in

the particulars assigned and argued in case number CR17-07-0228, assigned

appellate case number 8-19-35, we affirm the judgment of the trial court.

Judgment Affirmed in Part, Reversed in Part and
Cause Remanded in Case No. 8-19-34 and
Judgment Affirmed in Case No. 8-19-35

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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