[Cite as State v. Upkins, 2012-Ohio-6114.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                         CASE NO. 17-12-13

        v.

LAMONE UPKINS,                                      OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 11CR000264

                       Judgment Reversed and Cause Remanded

                          Date of Decision: December 26, 2012




APPEARANCES:

        R. Eric Sanders for Appellant

        Jeffrey J. Beigel for Appellee
Case No. 17-12-13


WILLAMOWSKI, J.

      {¶1} Defendant-appellant Lamone Upkins (“Upkins”) brings this appeal

from the judgment of the Court of Common Pleas of Shelby County finding him

guilty of four counts of trafficking in drugs and sentencing him to three years in

prison. For the reasons set forth below, the judgment is reversed.

      {¶2} On September 29, 2011, the Shelby County Grand Jury indicted

Upkins on four counts of trafficking in drugs in violation of R.C. 2925.03(A)(1),

all felonies of the fifth degree. A jury trial was held on December 29, 2011. On

February 13, 2012, a sentencing hearing was held. The trial court sentenced

Upkins to serve nine months in prison on each count and ordered that they all be

served consecutively for a total prison term of 36 months. The trial court also

ordered Upkins to pay restitution in the amount of $830 to the Sidney Police

Department.    Upkins appeals from this judgment and raises the following

assignments of error.

                           First Assignment of Error

      The trial court erred in imposing consecutive sentences on
      Counts I, II, III, and IV that, when combined, exceed the
      maximum prison term permitted under R.C. 2953.08(A) for the
      most serious offense of which [Upkins] was convicted.

                          Second Assignment of Error

      The trial court erred in imposing consecutive sentences on
      Counts I, II, III, and IV as the trial court did not make the
      mandated statutory findings under the provisions of R.C.

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       2929.14(C)(4) prior to sentencing [Upkins] to consecutive prison
       terms.

                           Third Assignment of Error

       The trial court erred in ordering consecutive sentences, as the
       reasons given by the trial court were insufficient to warrant
       consecutive sentences under R.C. 2929.14(C).

                           Fourth Assignment of Error

       The trial court erred in ordering [Upkins] to pay restitution to
       the Sidney Police Department in the amount of $830.00 for
       advanced buy money, confidential informant reimbursement,
       and lab fees incurred in its investigation.

       {¶3} The first assignment of error need not be addressed. Upkins withdrew

this assignment of error in his reply brief. The fact of the withdrawal of the first

assignment of error was confirmed at oral argument. Thus, this court will not

address it.

       {¶4} In the second assignment of error, Upkins claims that the trial court

failed to make the statutory findings as set forth in R.C. 2929.14(C)(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,

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Case No. 17-12-13


      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). The effect of this portion of the statute is that trial courts

must make statutory findings when imposing consecutive sentences. State v.

Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶11. See also State v. Alexander, 1st

Dist. No. C–110828, C–110829, 2012-Ohio-3349, ¶13; State v. Jones, 1st Dist. No.

C-110603, 2012-Ohio-2075, ¶17; State v. Bonner, 8th Dist. No. 97747, 2012-Ohio-

2931, ¶5; and State v. Sullivan, 10th Dist. No. 11AP-414, 2012-Ohio-2737, ¶24.

Specifically, the trial court must find that 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 set forth in

R.C. 2929.14(C)(4)(a, b, or c). Alexander, supra at ¶15. A review of the record

shows that the trial court failed to make the findings required by R.C.

2929.14(C)(4). The trial court specified that it “considered the consecutive factors

under R.C. 2929.14(C)(4).” Tr. 7-8. However, the trial court at no time made a


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Case No. 17-12-13


finding that 1) consecutive sentences were necessary for the statutory reasons or 2)

that consecutive sentences were not disproportionate. The trial court did discuss

Upkins past criminal history, the multiple offenses, and his failure to previously

pay community control fees. While this may satisfy the third finding required by

the statute, it does not satisfy the other two findings that are required. These

findings were not made at the hearing and were not made in the judgment entry.

Thus, the imposition of consecutive sentences without the findings required by

statute to be made is contrary to law. The second assignment of error is sustained.

      {¶5} Upkins argues in the third assignment of error that the reasons given

for ordering the consecutive sentences were insufficient to warrant consecutive

sentences. A review of the statute shows that unlike the prior version of R.C.

2929.12(C)(4) in place before the ruling in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, requiring judicial findings, the current version of the statute does

not require a trial court to put its reasons for imposing consecutive sentences on

the record. Alexander, supra at ¶18. Thus, the trial court does not err by not

giving its reasons. Id. However, the record must contain some facts to support the

trial courts findings as required by R.C. 2929.14(C)(4).       Id.   To satisfy this

requirement, the trial court may give reasons for the sentence even though it is not

required to do so. Id. Since, as discussed above, the trial court did not make the

required findings, this court cannot conduct a review to see if the evidence


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Case No. 17-12-13


supported findings which were not made. This issue cannot be addressed at this

time and the third assignment of error is moot.

       {¶6} Finally, Upkins argues that the trial court erred by ordering him to pay

$830 in restitution to the Sidney Police Department. This court has repeatedly

held that “the plain language of R.C. 2929.18(A)(1) makes restitution available

only to actual victims of an offense.” State v. Dietrich, 3d Dist. No. 1-10-76,

2011-Ohio-4347, ¶31. “A victim of a crime is defined as the person or entity that

was the ‘object’ of the crime.” State v. Samuels, 4th Dist. No. 03CA8, 2003-Ohio-

6106, ¶5. Although a government entity might, in certain cases, be a victim of a

crime, that is not the case when the money is used to investigate a crime. “[A]

government entity voluntarily advancing its own funds to pursue a drug buy

through an informant is not one of the scenarios contemplated by R.C.

2929.18(A)(1).” Dietrich, supra. The State concedes that this is the law and does

not dispute that the trial court erred in ordering restitution to the Sidney Police

Department. Therefore, the fourth assignment of error is sustained.

       {¶7} Having found error prejudicial to the defendant, the judgment of the

Court of Common Pleas of Shelby County is reversed and the matter is remanded

for further proceedings.

                                                          Judgment Reversed and
                                                               Cause Remanded
ROGERS, J., concurs.
SHAW, P.J, concurs in Judgment Only.

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