[Cite as State v. Payne, 2018-Ohio-3740.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NOS. 2017-L-157
        - vs -                                   :                2017-L-158

JEREMY A. PAYNE,                                 :

                 Defendant-Appellant.            :


Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 2017 CR
000140 and 2017 CR 000998.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Pamela D. Kurt, Kurt Law Office, LLC, 30432 Euclid Avenue, Suite 101, Wickliffe, OH
44092 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Jeremy A. Payne, appeals from the judgment on sentence of

the Lake County Court of Common Pleas. We affirm.

        {¶2}     In Case No. 17-CR-000140, appellant was indicted on the following

counts: count one, theft, a felony of the fifth degree, in violation of R.C. 2913.02(A)(3);

count two, obstructing official business, a felony of the fifth degree, in violation of R.C.
2921.31; and count three, possession of cocaine, a felony of the fifth degree, in violation

of R.C. 2925.11. Pleas of not guilty were entered on his behalf.

       {¶3}   On September 22, 2017, appellant withdrew his not guilty pleas and

entered pleas of guilty to counts one and two. Count three was dismissed at the state’s

request. On the same date, in Case No. 17-CR-000998, appellant waived his right to

have the matter presented to the grand jury and pleaded guilty, by way of information, to

one count of theft, a felony of the fifth degree, in violation of R.C. 2913.02(A)(3).

Sentencing was deferred on both cases and a presentence investigation report was

ordered.

       {¶4}   After a hearing, appellant was ordered to serve a term of nine-months

imprisonment on each of the three counts. The court further ordered the prison terms to

be served consecutively, for a total of 27 months in prison. This appeal follows.

       {¶5}   Appellant asserts the following as his sole assignment of error:

       {¶6}   “The appellant was denied due process by a sentence contrary to Ohio

law and the state and federal constitutions including unnecessary and unwarranted

prison terms to be served consecutively.”

       {¶7}   An appellate court generally reviews felony sentences under the standard

of review set forth in R.C. 2953.08(G)(2), which states.

       {¶8}   The court hearing an appeal under division (A), (B), or (C) of this
              section shall review the record, including the findings underlying the
              sentence or modification given by the sentencing court.

       {¶9}   The appellate court may increase, reduce, or otherwise modify a
              sentence that is appealed under this section or may vacate the
              sentence and remand the matter to the sentencing court for
              resentencing. The appellate court's standard for review is not
              whether the sentencing court abused its discretion. The appellate




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

      {¶10} (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;

      {¶11} (b) That the sentence is otherwise contrary to law.

      {¶12} Appellate courts “‘may vacate or modify any sentence that is not clearly

and convincingly contrary to law’” only when the appellate court clearly and convincingly

finds that the record does not support the sentence. State v. Wilson, 11th Dist. Lake

No. 2017-L-028, 2017-Ohio-7127, ¶18, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶23.

      {¶13} The Ohio Supreme Court has held that R.C. 2929.11 and R.C. 2929.12 do

not require judicial fact-finding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶42;

State v. Macko, 11th Dist. Lake No. 2016-L-022, 2017-Ohio-253, ¶75. “Rather, in

sentencing a defendant for a felony, a court is merely required to consider the purposes

and principles of sentencing in R.C. 2929.11 and the statutory * * * factors in R.C.

2929.12.” Macko, supra, citing Foster, supra.

      {¶14} Further, the Ohio Revised Code provides, in relevant part, as follows

regarding consecutive felony sentences:

      {¶15} 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:




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      {¶16} (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.

      {¶17} (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.

      {¶18} (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} Under his assigned error, appellant claims the trial court erred in

sentencing him to three, nine-month terms consecutively. He maintains the trial court

did not engage in a sufficient and complete analysis required by statute. He further

contends the trial court improperly placed too much weight on his prior convictions,

failed prior treatment, and the court-appointed psychologist’s assessment, which

indicated appellant had no diagnosable mental issues. Moreover, appellant asserts the

trial court failed to give adequate weight to his exhortations that he was amenable to

community control sanctions and rehabilitative programs. We do not agree.

      {¶20} After considering defense counsel’s as well as appellant’s positions at the

sentencing hearing, the trial court made the following determinations:

      {¶21} Well, I’ve considered the purposes and principles of felony
            sentencing, those being set forth in Revised Code Section 2929.11.
            I’ve also considered all relevant factors, including but not limited to
            those set forth in 2929.12 and 2929.13 of the code.

      {¶22} I’ve also considered the complete record in this case, which does
            include the presentence report and recommendations of the Adult
            Probation Department, and also includes the drug and alcohol
            evaluation report and the opinions, not so much the



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      recommendations of the Court psychologist. He didn’t have
      enough information to give us a recommendation. I’ve also
      considered all statements made and all recommendations made
      here in open Court today.

{¶23} With respect to the 2929.12 factors that would indicate the more
      seriousness of the crime, there was economic harm and loss that
      was suffered by both victims in both cases, although the property
      was recovered by Sears, there was a period of time when there
      was economic harm and loss.

{¶24} I’ve also considered the fact that there were co-Defendants
      involved in both cases, thereby making organized criminal activity,
      again factors that tend to make the crimes more serious than
      normal.

{¶25} A less serious factor considered, the Defendant did not cause
      physical harm to any person or property with respect to person as
      to both cases. [Sic.]

{¶26} With respect to recidivism being more likely, that is the greater
      likelihood that Mr. Payne will commit crimes in the future, I have
      considered the fact that he was on post release control and post
      release control supervision when the crimes were committed.

{¶27} I’ve also considered his lengthy history of criminal convictions as an
      adult. They’re all set forth in specific detail in the presentence
      report, but summarizing 33 misdemeanor convictions, 30 felony
      convictions, a total of 63 convictions over the past 20 years,
      including 44 for theft offenses.

{¶28} The Defendant has not responded favorably on many occasions
      when being directed to do so by various Courts. [Sic.] The record
      does reflect probation violations two in 1998; one in 1999; in 2009;
      one in 2011; and one in 2014.

{¶29} The Defendant does have a substance abuse issue, heroin,
      cocaine, marijuana seem to be the drug[s] of choice.

{¶30} I’ve also considered the prior determinations of PTSD and bipolar
      disorder, even though [they] could not be confirmed by Dr.
      Rindsberg as noted earlier.

{¶31} I’ve also considered the fact that there have been numerous
      sentences to prison terms, 18 times as indicated in the presentence
      report, 18 times where he’s been sentenced to prison. Several of



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             those sentences were run concurrent with each other for a total
             number of prison numbers of ten times in prison. [Sic.] The most
             recent having been sentenced in 2015 into 2017.

      {¶32} In terms of recidivism being less likely, there is no known juvenile
            delinquency adjudication history. And the Defendant did voluntarily
            enter pleas of guilty to all three of these crimes in two cases and
            did accept responsibility for his criminal conduct.

      {¶33} Taking everything into consideration, however, I’m of the opinion
            that Mr. Payne is not amenable to community control or any
            available community control sanctions, and that a prison term is
            consistent with the purposes and principles of felony sentencing.
            As a result, I’m going to order him to the Lorain Correctional
            Institution to serve a definite term of nine months with respect to
            Count 1 in 17CR 140, 9 months on Count 2 in 17CR 140, those
            being theft and obstructing official business counts. And also 9
            months in case 17CR 998, in Count 1, that’s the theft conviction in
            that case. Those three 9 month prison terms will be consecutive to
            each other for a total prison term of 27 months. And there will be
            80 days of credit given to in the 17CR 140 case, and it’s my
            understanding that there are no days of credit in the 17 998 case.

      {¶34} The Court does find that these consecutive sentences as to the two
            in the 140 case and then adding the third count in 998, all three of
            those consecutive sentences are necessary to protect the public
            from future crimes that may be committed by this Defendant, as
            well as to punish this Defendant. Also, the Court finds consecutive
            sentences are not disproportionate to the seriousness of the
            crimes, and to the danger that he poses to the general public. The
            Court also finds that the Defendant was on post release control at
            the time the crimes were committed, another justification for
            consecutive sentences. Also the Defendant’s history of criminal
            conduct demonstrates that consecutive sentences are necessary to
            protect the public from future crimes committed by this Defendant.

      {¶35} The trial court considered all the relevant statutory factors and made the

proper findings to support the imposition of consecutive sentences. The facts upon

which the trial court supported its 27-month sentencing order include a significant

criminal history, substance abuse problems, and appellant’s previous, repeated inability

to respond favorably to probation or community control. Prior to the foregoing recitation,




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the trial court discussed these issues on record with both defense counsel and

appellant. At no point did either object to or refute any of these points. Appellant

emphasized he had been previously diagnosed with PTSD and bipolar disorder; that he

did not have any issues with alcohol; and that his recent, near-death heroin overdose

had given him a new and more healthy perspective how to live his life. The trial court

considered these factors; nevertheless, the trial court found that they did not militate in

favor of community control and/or residential treatment. In light of the facts presented to

the trial court, we hold the trial court did not err in sentencing appellant to three

consecutive nine-month terms of imprisonment for the crimes to which he pleaded.

       {¶36} Appellant’s assignment of error lacks merit.

       {¶37} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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