[Cite as State v. Clinkscale, 2016-Ohio-773.]



                            STATE OF OHIO, MAHONING COUNTY
                                   IN THE COURT OF APPEALS
                                         SEVENTH DISTRICT

STATE OF OHIO,                                    )
                                                  )
        PLAINTIFF-APPELLEE,                       )
                                                  )              CASE NO. 15 MA 57
VS.                                               )
                                                  )                    OPINION
BRUCE CLINKSCALE,                                 )
                                                  )
        DEFENDANT-APPELLANT                       )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Court of Common
                                                  Pleas of Mahoning County, Ohio
                                                  Case No. 2014 CR 633-A

JUDGMENT:                                         Affirmed

APPEARANCES:
For Plaintiff-Appellee                            Attorney Paul Gains
                                                  Mahoning County Prosecutor
                                                  Attorney Ralph Rivera
                                                  Assistant Prosecutor
                                                  21 West Boardman Street
                                                  Youngstown, Ohio 44503

For Defendant-Appellant                           Attorney John Falgiani, Jr.
                                                  8872 East Market Street
                                                  P.O. Box 8533
                                                  Warren, Ohio 44484


JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                  Dated: February 24, 2016
[Cite as State v. Clinkscale, 2016-Ohio-773.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Bruce Clinkscale, appeals the judgment of the
Mahoning County Court of Common Pleas in which he was sentenced to two years of
prison consecutive to a prison term of fifteen years that he was currently serving from
previous convictions. Clinkscale asserts his sentence should not have been imposed
consecutive to his current prison term and moreover is disproportionate to his offense
and his co-defendant's sentence. Because the record demonstrates that the trial
court adhered to the felony sentencing statutes, the trial court's judgment is affirmed.
        {¶2}     In 2010, Clinkscale pled and was sentenced to fifteen years in prison by
the Mahoning County Court of Common Pleas in consolidated cases from 2006 and
2007. While serving this sentence at the Ohio State Penitentiary in Youngstown,
Ohio, Clinkscale and his wife Adrial were indicted by a grand jury for conveying drugs
of abuse onto the grounds of a governmental facility, R.C. 2921.36(A)(2)(G)(2), a
third degree felony.
        {¶3}     Adrial pled guilty and the State recommended a community control
sanction; the trial court imposed a four year community control sanction.
        {¶4}     The State and Clinkscale entered into a Crim.R. 11 plea agreement
which provided that Clinkscale would plead guilty and in exchange the State would
seek a sentence of two years “no more and no less." There was no indication in the
plea agreement whether the sentence was to be served concurrently or
consecutively. The sentencing range for this offense is nine to thirty-six months. R.C.
2929.14.
        {¶5}     At the sentencing hearing the State requested that the sentence be
imposed consecutive to Clinkscale's current prison term, arguing that Clinkscale
enticed his wife to bring drugs into the prison demonstrating an inability to follow the
law, exemplified by the fact he was in prison and committed the instant offense.
Although the State noted that there did not appear to be a statutory section dealing
with incarcerated offenders and consecutive sentences, the prosecutor argued that
the trial court should take the opportunity to send a message to deter other offenders
and protect the community and correction officers. The State noted that if Clinkscale
                                                                                -2-


was given a concurrent sentence it would send a message to prisoners that there are
no ramifications for criminal offenses committed while incarcerated.
       {¶6}   Defense counsel raised two arguments, first that the offense can be
punished with probation. Second, Clinkscale is not the first prisoner to commit an
offense while incarcerated, therefore the issue is proportionality, especially keeping in
mind that his wife and co-defendant received probation, although counsel conceded
Clinkscale did have a record. The State countered that this was the first offense for
Adrial other than a speeding ticket.
       {¶7}   The trial court made the following statements during the hearing:

       I think there is certainly something to be said for the need for a more
       severe punishment for a crime that's committed while somebody is
       already in prison and, basically, for the same reasons that you've just
       enumerated; if we don't severely punish people who are already in
       prison committing more crimes, there is nothing to deter that from
       happening because everybody who is in the same situation where--you
       basically have nothing to lose, and so unless we, as a society, force
       you to have something to lose, then there's no motivation for anybody
       while they're in prison to rehabilitate, to change your ways, to do
       anything different than what they're in there for, which is continuing to
       commit crimes.
              So I don't believe that the nature of the crime makes it one that
       suggests that Defendant is amenable to community control, and I also
       believe that prison is the only appropriate sanction that is consistent
       with the principles and purposes of sentencing. The Defendant was
       serving a prison term at the time of the offense. He had previously
       served a prison term, and the minimum sanction will not accomplish the
       overriding   purpose   of   felony   sentencing   without   imposing    an
       unnecessary burden on state and local government resources.
       ***
                                                                                 -3-


              Upon consideration of the oral statements of Defendant, the
       prosecutor, the presentence investigation report and all of the
       circumstances of this case, as well as the principles and purposes of
       sentencing under Revised Code Section 2929.11, and having
       considered the seriousness and recidivism factors under 2929.12 for
       the offense of illegal conveyance of drugs of abuse onto the grounds of
       a governmental facility, a violation of Revised Code Section
       2921.36(A)(2)(G)(2), a felony of the third degree, the Court finds that
       the Defendant previously pleaded guilty to that charge and that he is
       not amenable to community control. Therefore, Defendant is sentenced
       to serve a term of two years in prison, to be served consecutive with
       Case Number * * * 2007 CR 56. The Court finds that the crime was
       committed while Defendant was under a sanction, and that a single
       term does not adequately reflect the seriousness of the conduct. The
       Court also finds that Defendant's criminal history shows consecutive
       terms are needed to protect the public.

       {¶8}   The trial court imposed a two-year prison term to be served consecutive
to Clinkscale's current fifteen-year prison term, finding in the sentencing entry:

              The Court has reviewed ORC 2929.11, 2929.13, and 2929.14 as
       it applies to Defendant.
              The Court considered the record, oral statements, and the
       principles and purposes of sentencing under Ohio Revised Code
       2929.11, and has balanced the seriousness and recidivism factors
       under Ohio Revised Code 2929.12. The Court find that Defendant is
       not amenable to a community control sanction and prison is the only
       sanction consistent with the principles and purposes of sentencing that
       does not place an unreasonable burden on the State and Local
       resources.
                                                                              -4-


      ***

      The Court finds in this matter consecutive sentences are necessary to
      protect the public from future crime and to punish the offender and; that
      consecutive sentences are not disproportionate to the seriousness of
      the Defendant's conduct and to the danger the Defendant poses to the
      public and; the offender's history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from future
      crime by the offender.

      {¶9}   Clinkscale asserts in his sole assignment of error:

      The trial court abused its discretion and acted contrary to law in
      imposing a consecutive sentence upon Appellant.

      {¶10} This Court is currently split as to the standard of review to apply in
felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014–Ohio–919
(Vukovich, J., Donofrio, J., majority with DeGenaro, J., concurring in judgment only
with concurring in judgment only opinion), which applied the two-part test set forth in
the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896
N.E.2d 124, and State v. Wellington, 7th Dist. No. 14 MA 115, 2015–Ohio–1359
(Robb, J., DeGenaro, J., majority with Donofrio, J. concurring in judgment only with
concurring in judgment only opinion) which applied R.C. 2953.08(G) and limiting
appellate review of felony sentences to determining whether they are clearly and
convincingly contrary to law. The issue is currently before the Ohio Supreme Court.
State v. Marcum, 141 Ohio St.3d 1453, 2015–Ohio–239, 23 N.E.3d 1453.
Regardless of which standard of review is applied here, the outcome is the same.
      {¶11} R.C. 2929.14 provides a trial court may impose consecutive sentences
upon an offender if the court makes three statutory findings:

      [T]hat the consecutive service is necessary to protect the public from
                                                                               -5-


      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).
      {¶12} The findings must be made both at the sentencing hearing and in the
sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 37. However, a trial court need not state reasons to support its findings nor is
it required to use any "magic" or "talismanic" words, so long as it is apparent that the
court conducted the proper analysis. State v. Jones, 7th Dist. No. 13 MA 101, 2014-
Ohio-2248, ¶ 6. "Pursuant to Bonnell, this court must also determine whether the
record contains evidence in support of the trial court's findings." State v. Correa, 7th
Dist. 13 MA 23, 2015-Ohio-3955, ¶ 76.
      {¶13} Both sides were given the opportunity to make statements to the court.
                                                                                 -6-


The prosecutor's argument included references to the consecutive sentencing
factors, specifically that Clinkscale was in prison and still broke the law, and that the
court should take the opportunity to send a message to deter other incarcerated
offenders. The trial court acknowledged these arguments, stating; "I think there is
certainly something to be said for the need for a more severe punishment for a crime
that's committed while somebody is already in prison and, basically, for the same
reasons that you've just enumerated; if we don't severely punish people who are
already in prison committing more crimes, there is nothing to deter that from
happening because everybody who is in the same situation where--you basically
have nothing to lose[.]" This satisfies the second finding required under subpart
(C)(4) that consecutive sentences are not disproportionate to the conduct and the
danger posed to the public,.
       {¶14} Regarding the first finding required under subpart (C)(4), supra, that a
consecutive sentence is necessary to protect the public or punish the offender, the
trial court satisfied this requirement, stating: "so unless we, as a society, force you to
have something to lose, then there's no motivation for anybody while they're in prison
to rehabilitate, to change your ways, to do anything different than what they're in
there for, which is continuing to commit crimes." Finally, the trial court made the
required finding under subpart (C)(4)(c) that the offender's criminal history
demonstrates consecutive sentences are necessary to protect the public from future
crimes by the offender by stating: "The Court also finds that Defendant's criminal
history shows consecutive terms are needed to protect the public." The trial court
then memorialized these findings in the sentencing entry.
       {¶15} The trial court complied with all applicable statutes in order to impose a
consecutive sentence.      Furthermore, the two-year prison term imposed for this
offense is within the general nine to thirty-six month range applicable for most third
degree felonies. Accordingly, this argument is meritless.
       {¶16} Clinkscale argues in the alternative that his sentence is disproportionate
to the sentence received by his wife, Adrial. "A defendant alleging disproportionality
                                                                              -7-


in felony sentencing has the burden of producing evidence to 'indicate that his
sentence is directly disproportionate to sentence given to other offenders with similar
records who have committed these offenses."           State v. Williams, 7th Dist. No.
13MA125, 2015-Ohio-4100, at ¶ 52 (citing State v. Wilson, 8th Dist. No. 99331,
2013–Ohio–3915, ¶ 16). In Williams, the appellant argued that his sentence was
disproportionate to three other defendants who committed similar offenses. While this
Court found that the appellant did not provide evidence of similarly situated
defendants, this Court also found that he failed to provide evidence that his own
sentence was disproportionate. Id. at ¶ 52.
       {¶17} Clinkscale has failed to provide evidence of similarly situated offenders.
As such, he has not met his burden to argue disproportionality in that regard.
Regarding Adrial, his wife and co-defendant, the record precludes a finding that
Clinkscale and Adrial were similarly situated. At the time of the commission of the
offense Adrial was not incarcerated in a penitentiary, and except for a speeding
violation, she had no criminal record until her conviction in this case. Contrarily,
Clinkscale was serving a fifteen-year sentence imposed for multiple convictions.
Clinkscale's criminal history is incomparable to Adrial's.
       {¶18} Accordingly, Clinkscale's sole assignment of error is meritless, and the
judgment of the trial court is affirmed.

Waite, J., concurs.

Robb, J., concurs.
