State v. Morris

[Cite as State v. Morris, 2023-Ohio-3412.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-11-105

: OPINION
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:

MICHAEL J. MORRIS, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case Nos. CR2019-11-1890 & CR2020-07-0928

Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.

Christopher P. Frederick, for appellant.

BYRNE, J.

{¶ 1} Michael J. Morris appeals from an entry of the Butler County Court of Common

Pleas, which revoked community control and imposed prison terms. For the reasons

discussed below, we affirm.

I. Factual and Procedural Background

{¶ 2} In January 2020, a Butler County grand jury indicted Morris in a 15-count
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indictment, alleging that Morris committed a variety of felony theft and theft-related offenses.

The charges related to accusations that Morris deposited and cashed forged checks.

{¶ 3} As part of a plea agreement, Morris subsequently entered guilty pleas to five

counts of that indictment, which were all fifth-degree-felony theft charges. In September

2021, the court sentenced Morris to five years of community control. The judgment entry

warned Morris that a violation of community control "shall" lead to consecutive prison terms.

Morris did not appeal his conviction.

{¶ 4} In April 2022, the Adult Probation Department of Butler County, Ohio, alleged

that Morris had violated the conditions of community control. At a hearing on the violation,

the court found that Morris had violated conditions of community control by failing to report

to his probation officer and by testing positive for methamphetamine. Nonetheless, the

court continued Morris on community control with the additional requirement that Morris

enter, comply with, and complete the Court Directed Addiction Treatment Program.

{¶ 5} In October 2022, the Probation Department alleged that Morris had again

violated the conditions of community control, this time by being unsuccessfully discharged

from Sojourner, a residential treatment facility. In November 2022, the court held a

community control revocation hearing. Morris admitted to the violation. The court accepted

Morris' admission. Morris then spoke in mitigation. Morris conceded to making a "very

stupid, impulsive decision" by leaving Sojourner, but asked the court for a final opportunity

to "make this right."

{¶ 6} In passing sentence, the court first noted that Morris' juvenile record began in

1998. The court commented that Morris' criminal record was so lengthy that the court lost

count of the number of pages. The court observed that Morris' record included a burglary

offense in Florida, which the court found to be a felony offense of violence. Morris stated

he was jailed for just under one year on that burglary offense. The court also noted that

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Morris had been to prison before for receiving stolen property. The court next observed that

Morris was present at a home where the S.W.A.T. team was used to execute a search

warrant, at which law enforcement recovered narcotics and firearms. In explaining his

presence at the home, Morris stated that he was in the "wrong place at the wrong time" and

was just there to "eat chicken wings and drink beer with my friends."

{¶ 7} The court found that Morris violated the conditions of community control. The

court stated it considered the principles and purposes of sentencing under R.C. 2929.11 as

well as the seriousness and recidivism factors of R.C. 2929.12. The court further found that

Morris had previously committed a felony offense of violence and that Morris had an

extensive prior record.

{¶ 8} The court then sentenced Morris to 12 months in prison on each of the five

counts. With regard to consecutive sentences, the court found that consecutive sentences

were not disproportionate to the seriousness of Morris' conduct and to the danger Morris

posed to the public. The court further found that consecutive sentences were necessary to

protect the public from future crime, to punish Morris, and that Morris' history of criminal

conduct demonstrated that consecutive sentences were necessary to protect the public

from future crime by Morris. The court then ordered three of the five counts to be served

consecutively. The court ran the remaining counts concurrently for a total prison term of

three years. The court also gave Morris 365 days of jail time credit. The court issued an

entry revoking Morris' community control and imposing the above-described prison terms.

{¶ 9} Morris appealed from the entry revoking community control and imposing

prison terms. He presents one assignment of error for our review.

{¶ 10} Before addressing the single assignment of error, we note that the facts we

have described above pertain to Case No. CR2019-11-1890, which involved charges

concerning theft and other theft-related offenses. At the same time that Morris was given

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his initial community control sentence in Case No. CR2019-11-1890, the trial court also

sentenced Morris to community control in another case that was then pending before the

court. In that second case, Case No. CR2020-07-0928, Morris had pleaded guilty to

aggravated possession of drugs (methamphetamine). When the trial court revoked Morris'

community control and imposed consecutive sentences in Case No. 2019-11-1890, the trial

court also revoked Morris' community control and imposed a prison sentence in Case No.

CR2020-07-0928. However, in that second case, the trial court ran Morris' 12-month prison

sentence concurrently with his sentences in Case No. CR2019-11-1890, not consecutively.

When Morris appealed, he filed notices of appeal in both Case Nos. CR2019-11-1890 and

CR2020-07-0928. But Morris opened his appellate brief with the statement, "This appeal

involves two separate matters but only addresses the sentencing imposed in case CR2019

11 1890.” Indeed, other than referring to Case No. CR2020-07-0928 in his statement of the

case and facts, he has not raised any argument concerning Case No. CR2020-07-0928 in

his brief. To the extent Morris purports to challenge any aspect of Case No. CR2020-07-

0928 by filing a notice of appeal with respect to that case and discussing facts related to

the case in his brief, we overrule that challenge and affirm the judgement in Case No.

CR2020-07-0928. See Newell v. Shumate, 9th Dist. Lorain No. 10CA009837, 2011-Ohio-

2448, at ¶ 5 (where an appellant fails to include any assignment of error in the brief, the

court of appeals may summarily affirm the trial court's judgment).

II. Law and Analysis

{¶ 11} Morris' assignment of error states:

{¶ 12} MR. MORRIS' CONSECUTIVE SENTENCES WERE UNLAWFUL.

{¶ 13} Within his assignment of error, Morris presents two issues for review. Despite

the phrasing of his assignment of error, only one of those issues regards consecutive

sentences; the other concerns merger of allied offenses.

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A. Allied Offenses

{¶ 14} Morris first argues that the trial court improperly failed to merge his theft

convictions prior to sentencing. He argues that the record at the revocation hearing did not

support a finding that Morris separately committed the five theft offenses.

{¶ 15} However, we need not analyze whether the theft offenses should have

merged. Under the doctrine of res judicata, "a final judgment of conviction bars the

convicted defendant from raising and litigating in any proceeding, except an appeal from

that judgment, any defense or any claimed lack of due process that was raised or could

have been raised by the defendant at the trial which resulted in that judgment of conviction

or on an appeal from that judgment." State v. Dodson, 12th Dist. Butler No. CA2011-02-

034, 2011-Ohio-6347, ¶ 9. In Dodson, we found that the time to challenge a conviction

based on an allied offenses argument is through a direct appeal and that res judicata bars

a later attempt to present an allied offense argument in an appeal from a revocation of

community control. Id. at ¶ 8-9.

{¶ 16} Morris could have challenged the trial court's decision not to merge his theft

offenses at his original sentencing hearing or could have raised that as an issue in a timely

direct appeal. But he did not. Therefore, res judicata bars Morris from challenging the

failure to merge offenses in an appeal from the revocation of his community control. Id. at

¶ 9. Accord State v. Painter, 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, ¶

14-19 (reaffirming Dodson). See State v. Baldwin, 12th Dist. Clermont Nos. CA2015-10-

082 and CA2015-10-086, 2016-Ohio-5476, ¶ 22 ("questions concerning the validity of a

sentencing entry or matters pertaining thereto should be raised on a direct appeal of that

particular entry, and not through a collateral attack of the revocation of community control");

State v. Rogers, 12th Dist. Clermont No. CA2007-05-068, 2007-Ohio-7076, ¶ 4-6.

Accordingly, Morris' first issue presented for review need not be considered further.

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B. Consecutive Sentences

{¶ 17} Morris next argues that the record fails to support the trial court's consecutive

sentence findings.

1. Applicable Law

a. Required Findings for Consecutive Sentences

{¶ 18} When imposing consecutive sentences, a sentencing 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 * * *." State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, syllabus. That statute 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 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.

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

{¶ 19} Stated more simply, to impose consecutive sentences, a sentencing court

must find (1) "that the consecutive service is necessary to protect the public from future

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crime or to punish the offender[,]" (2) "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 (3) that at least one of the three conditions described in R.C. 2929.14(C)(4)(a),

(b), or (c) apply. R.C. 2929.14(C)(4).

{¶ 20} "When imposing consecutive sentences, a trial court must state the required

findings as part of the sentencing hearing, and by doing so it affords notice to the offender

and to defense counsel." Bonnell at ¶ 29, citing Crim.R. 32(A)(4). "[A] word-for-word

recitation of the language of the statute is not required," though, "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." Id.

b. Standard of Review – Felony Sentencing Appeals

{¶ 21} R.C. 2953.08(G)(2) defines the standard of review for felony-sentencing

appeals. State v. Day, 12th Dist. Warren Nos. CA2020-07-042 and CA2020-7-043, 2021-

Ohio-164, ¶ 6. As applicable here, R.C. 2953.08(G)(2) provides:

The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;

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

(Emphasis added.)

{¶ 22} "The consecutive sentence statute, R.C. 2929.14(C)(4), is one of the relevant

statutes specifically mentioned in R.C. 2953.08(G)(2)." State v. Richey, 12th Dist. Clermont

Nos. CA2022-08-038 thru CA2022-08-041, 2023-Ohio-336, ¶ 12. "Thus, there are two

ways that a defendant can challenge consecutive sentences on appeal." State v. Shiveley,

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12th Dist. Clermont No. CA2022-04-017, 2022-Ohio-4036, ¶ 7. "The defendant can argue

either that the imposition of consecutive sentences is contrary to law because the trial court

failed to make the necessary consecutive sentence findings required by R.C.

2929.14(C)(4), or that the record does not support the trial court's consecutive sentence

findings made under R.C. 2929.14(C)(4)." Richey at ¶ 12, citing Shiveley at ¶ 7. "These

are the only two means that the legislature provided to defendants to challenge their

consecutive sentences on appeal." Id., citing State v. Gwynne, Slip Opinion No. 2022-Ohio-

4607, at ¶ 11.

{¶ 23} In this appeal, Morris does not dispute that the trial court made the

consecutive sentence findings required by R.C. 2929.14(C)(4). Morris therefore concedes

that the trial court's decision to impose consecutive sentences was not clearly and

convincingly contrary to law under R.C. 2953.08(G)(2)(b). Richey at ¶ 13.

{¶ 24} Instead, Morris argues—pursuant to R.C. 2953.08(G)(2)(a)—that the record

does not support the trial court's consecutive sentence findings under R.C. 2929.14(C)(4).

As we explained in Richey, the Ohio Supreme Court recently held that "Such a challenge

requires this court to review the record de novo and decide whether the record clearly and

convincingly does not support the trial court's consecutive sentence findings." Richey at ¶

13, citing Gwynne at ¶ 1. In conducting this de novo review, this court "essentially functions

in the same way as the trial court when imposing consecutive sentences in the first

instance." Gwynne at ¶ 21.

{¶ 25} However, we are constrained "to considering only those consecutive sentence

findings that the trial court actually made." Richey at ¶ 14, citing Gwynne at ¶ 21.

"Therefore, upon a de novo review of the record, this court may reverse or modify

consecutive sentences—including the number of consecutive sentences imposed by the

trial court[,]" but only if we clearly and convincingly find "that the record does not support

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the trial court's consecutive sentence findings made under R.C. 2929.14(C)(4)." (Emphasis

added.) Richey at ¶ 14, citing Gwynne at ¶ 12. This means that we may only reverse or

modify consecutive sentences when we have "a firm belief or conviction that the proposition

of fact represented by each finding is not true on consideration of the evidence in the

record." Gwynne at ¶ 21.

{¶ 26} Before moving on to our analysis, we note that the state suggests that our

standard of review of Morris' consecutive sentence argument is limited to "plain error"

because Morris did not object to the imposition of consecutive sentences after the court

imposed consecutive sentences. In support, the state cites the Ohio Supreme Court's

decision in a capital case, State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, ¶ 166.

{¶ 27} The relevant paragraph in Whitaker cites another capital case, State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 152. Hunter, in turn, cites a third capital

case, State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 377. In Whitaker, the appellant

argued that a trial court erred by imposing consecutive sentences for noncapital counts in

a capital case, and the supreme court determined that plain error review applied because

the appellant failed to raise this argument at the sentencing hearing. Whitaker at ¶ 166. In

Hunter, the supreme court applied plain error review to the appellant's argument that the

imposition of consecutive sentences in a capital case was unconstitutional. Hunter at ¶

151-155. In Davis, the supreme court did not even mention plain error in the portion cited

in Hunter, but instead stated that when the appellant objected to consecutive sentences but

failed to raise the specific constitutional arguments he raised on appeal, those constitutional

arguments were forfeited. Davis at ¶ 377.

{¶ 28} While all three of these cases discuss either plain error review or forfeiture in

the context of a challenge to consecutive sentences, none of these cases involve the type

of argument before us today—that is, none involve a challenge to R.C. 2929.14(C)(4)

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consecutive sentence findings under R.C. 2953.08(G)(2). It is not clear that the Ohio

Supreme Court in Whitaker, Hunter, or Davis intended to suggest that an offender who fails

to object to consecutive sentences after they are imposed is limited to plain error review

when the offender brings an appeal challenging R.C. 2929.14(C)(4) consecutive sentence

findings under R.C. 2953.08(G)(2). But even if that was the Ohio Supreme Court's intent,

the standard for reviewing the imposition of consecutive sentence under R.C. 2953.08(G)(2)

is now guided by Gwynne, 2022-Ohio-4607, which was decided after Whitaker, Hunter, and

Davis. As explained above, Gwynne dictates a de novo review in this case. Id. at ¶ 1. In

any event, even if a plain error review were required in this case, we would not find plain

error in the trial court's imposition of consecutive sentences for the reasons we will discuss

below.

2. Analysis

{¶ 29} We have conducted a de novo review of the record. The trial court's statement

that Morris' criminal history was so lengthy that the court lost count of the number of pages

documenting the offenses was not hyperbole. Morris' criminal record is truly extensive.

Setting aside criminal counts filed against Morris that were dismissed, Morris has been

convicted of around 80 different criminal counts over two decades. Morris has been

convicted of numerous offenses involving violence, such as assault, attempted assault, and

domestic violence. Morris has also been convicted of serious nonviolent offenses that,

while nonviolent, nevertheless are crimes that cause harm to others, including grand theft,

theft, attempted theft, theft by taking, burglary of a conveyance, fraudulent use of a credit

card, attempted breaking and entering, receiving stolen property, and more. This is in

addition to numerous convictions for drug-related crimes. With respect to many of the

crimes just listed, including the violent offenses, Morris was convicted of multiple counts of

those crimes. In addition to these 80 or so criminal offenses, Morris was also convicted of

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a large number of relatively less serious offenses (at least when compared to crimes like

assault and theft, such as driving under suspension and failure to produce a driver license),

the sheer number of such relatively less serious convictions is still shocking, and

demonstrates Morris' persistent disregard for the law.

{¶ 30} Of course, Morris' criminal convictions led to criminal sentences. As

mentioned by the trial court, Morris went to jail for about a year for a burglary offense, and

he went to prison for receiving stolen property. But that is not all. The record reveals that

Morris was sentenced, on numerous occasions, to community control, to jail terms of

various lengths, and to pay various fines and restitution. Different courts, in different states,

gave Morris multiple "second chances;" a number of his jail sentences were suspended so

that he could participate in community control or were suspended outright. On top of all of

this, Morris' record references multiple community control and parole violations over the

years, even before the community control violations at issue in this appeal. These

violations, again, demonstrate that Morris has little to no regard for the law.

{¶ 31} All of this information supports the trial court's finding under R.C.

2929.214(C)(4) that consecutive sentences were "necessary to protect the public from

future crime or to punish the offender." Morris' record, and his actions at issue in this appeal,

demonstrate a more than two-decade pattern of committing criminal acts. Morris has more

than demonstrated that he is a threat to the public, and that he is likely to engage in future

crime. And by continuing to commit crimes, again and again, despite numerous second

chances, Morris has demonstrated that consecutive sentences are necessary in order to

punish him. Concurrent sentences would simply be more of the same, and would not

adequately punish Morris for his theft convictions at issue here.

{¶ 32} Likewise, the record supports the trial court's finding under R.C.

2929.214(C)(4) that consecutive sentences "are not disproportionate to the seriousness of

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the offender's conduct and to the danger the offender poses to the public." The "offender's

conduct" at issue is Morris' perpetration of multiple theft offenses, in which Morris deposited

and cashed forged checks. These were serious financial crimes. Both the bank where he

deposited these checks and the individual on whose checking account he forged fraudulent

checks were harmed. Given the seriousness of Morris' thefts, we conclude that the

consecutive sentences imposed by the trial court were not disproportionate. This

conclusion is further supported by Morris' criminal record, as described above, which shows

that Morris has for many years been a serious danger to the public.

{¶ 33} For these same reasons, and because the numerous criminal sentences that

Morris received over the years—lesser sentences than the consecutive sentences he

received in this case—did not deter Morris from continuing to harm the public, we agree

with the trial court's conclusion under R.C. 2929.214(C)(4)(c) that Morris' "history of criminal

conduct demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender."

{¶ 34} In his appellate brief, Morris generally argues that all of the court's consecutive

sentences findings under R.C. 2929.14(C)(4) were "unsupported by the evidence." More

specifically, he argues that he merely violated community control by failing to report to

probation, testing positive for illicit drugs, and for failing to complete drug treatment. He

notes that his conduct that caused him to violate community control did not include

additional criminal charges. He argues that his conduct of abusing substances posed no

danger to the public and did not support the trial court's conclusion that there was a need

to protect the public from future crime.

{¶ 35} Notably, Morris does not dispute or even refer to his extensive criminal record

in the argument section of his appellate brief. Morris does not dispute that his prior record

included felony offenses of receiving stolen property and burglary, and that he went to prison

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for the receiving stolen property offense.

{¶ 36} We reject Morris' argument that the conduct that led to the violation of Morris'

community control should have been the only consideration by the trial court in determining

whether to impose consecutive sentences. As correctly pointed out by the state, the

consecutive sentence analysis is directed to punishment for the original offenses, not the

act that violated community control. State v. Henderson, 2d Dist. Montgomery No. 24849,

2012-Ohio-3499, ¶ 25 ("when community control sanctions are vacated because the

offender has failed to comply with the conditions thereof, the new sentence imposed is not

punishment for the failure to comply with the conditions of community control; it is

punishment for the crime of which the offender was convicted"). Here, the original charges

were multiple felonies. Morris was advised by the original sentencing judge in this case that

he faced consecutive sentences on all five counts. In fact, that Morris received only three

consecutive terms after twice violating his community control indicated a generous degree

of leniency on the trial court's behalf.

{¶ 37} We also reject Morris' contention that his substance abuse issues do not

demonstrate that he presents a danger to the public. It is general knowledge that substance

abuse (methamphetamine use, specifically), crime, and danger to the public, are often

intertwined. While the record does not provide much detail with regard to the role that

Morris' drug use played with respect to his many criminal acts, we cannot ignore that, for

Morris, substance abuse and other criminal acts seem to go hand in hand.

{¶ 38} For these reasons, we do not find that the record clearly and convincingly

does not support the trial court's consecutive sentence findings under R.C. 2929.14(C)(4)

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and (C)(4)(c).1 Gwynne, 2022-Ohio-4607 at ¶ 12. To the contrary, the record clearly

supported the findings that consecutive service was necessary to protect the public from

future crime or to punish Morris, that consecutive sentences were not disproportionate to

the seriousness of Morris' conduct, and that Morris' history of criminal conduct

demonstrated that consecutive sentences were necessary to protect the public from future

crime by Morris. R.C. 2929.14(C)(4) and (C)(4)(c). Morris has not demonstrated any error

in his sentencing. We overrule Morris' sole assignment of error.

III. Conclusion

{¶ 39} Res judicata precludes Morris' argument that the trial court erred by failing to

merge his theft convictions. Upon our de novo review of the record, we do not find that the

record clearly and convincingly does not support the trial court's consecutive sentence

findings under R.C. 2929.14(C)(4). We therefore find no error in Case Nos. CR-2020-07-

0928 and CR2019-11-1890.

{¶ 40} Judgment affirmed.

S. POWELL, P.J., and PIPER, J., concur.

1. We are aware that our conclusion is awkwardly stated in the negative, or in the double negative. But this
is what is required under Gwynne. State v. Hunter, 12th Dist. Butler No. CA2022-05-054, 2023-Ohio-1317, ¶
30 fn.3.

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