[Cite as State v. Combs, 2018-Ohio-4783.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 106752



                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            BERNARD COMBS

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-17-620096-A

        BEFORE: Kilbane, P.J., McCormack, J., and Stewart, J.

        RELEASED AND JOURNALIZED:                 November 29, 2018
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road, #613
Cleveland, Ohio 44118


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Glen Ramdhan
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

MARY EILEEN KILBANE, P.J.:

       {¶1}    Defendant-appellant, Bernard Combs (“Combs”), appeals his drug trafficking

sentence. For the reasons set forth below, we affirm.

       {¶2}    In October 2017, Combs was charged in an eight-count indictment. Counts 1, 3,

5, and 7 charged him with drug trafficking and Counts 2, 4, 6, and 8 charged him with drug

possession. Each of the charges carried several forfeiture specifications. Pursuant to a plea

agreement with the state, Combs pled guilty to Counts 1, 3, and 5. Each count was amended to

delete automobile forfeiture specifications, but the other forfeiture specifications remained.

Counts 2, 4, 6, 7 and 8 were nolled. The matter was then set for sentencing, and the trial court

referred Combs for a presentence investigation report (“PSI”).

       {¶3}    At the hearing, defense counsel argued that the offenses should merge for

purposes of sentencing. The state opposed, arguing that the offenses do not merge because each

count was for a different type of drug. The trial court found that the offenses do not merge and

sentenced Combs to an aggregate of 18 months in prison — 12 months on Count 1 and 18
months on each of Counts 3 and 5, to be served concurrently.

       {¶4}    Combs now appeals, raising the following three assignments of error, which shall

be discussed together where appropriate.

                                    Assignment of Error One

       It was error to sentence [Combs] to maximum sentences on felony five and four.

                                    Assignment of Error Two

       It was error to sentence [Combs] to concurrent time for allied offenses of similar
       import.

                                    Assignment of Error Three

       It was error to sentence [Combs] absent considering R.C. 2929.12 and by failing
       to consider the suitability of the sentence.

       {¶5}    In the first and third assignments of error, Combs argues that the maximum

sentences on Counts 1, 3, and 5 (fourth- and fifth-degree felonies) were in violation of R.C.

2929.11 and 2929.12. Specifically, that his sentence was disproportionate to the severity of the

offenses, and the court did not consider the factors enumerated in R.C. 2929.12.

       {¶6}    We review felony sentencing using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand

for resentencing where we clearly and convincingly find that either the record does not support

the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or

2929.20(I), or the sentence is otherwise contrary to law.
       {¶7}    As long as the sentence is within the statutory range for the offense, and the court

considers both the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

seriousness and recidivism factors set forth in R.C. 2929.12, a trial court’s imposition of a

maximum prison term for a felony conviction is not contrary to law. State v. Woodard, 8th Dist.

Cuyahoga No. 106300, 2018-Ohio-2402, ¶ 35; State v. Keith, 8th Dist. Cuyahoga Nos. 103413

and 103414, 2016-Ohio-5234, ¶ 10, 16.

       {¶8}    R.C. 2929.11(A) provides that a sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing (1) to protect thepublic

from future crime by the offender and others, and (2) to punish the offender using the minimum

sanctions that the court determines will accomplish those purposes. The sentence imposed shall

“commensurate with and not demeaning to the seriousness of the offender’s conduct and its

impact on the victim, and consistent with sentences imposed for similar crimes by similar

offenders.” R.C. 2929.11(B).

       {¶9}    The sentencing court must consider the seriousness and recidivism factors set

forth in R.C. 2929.12 in determining the most effective way to comply with the purposes and

principles of sentencing set forth in R.C. 2929.11. Keith at ¶ 10, citing State v. Hodges, 8th

Dist. Cuyahoga No. 99511, 2013-Ohio-5025. R.C. 2929.12 provides a nonexhaustive list of

factors a trial court must consider when determining the seriousness of the offense and the

likelihood that the offender will commit future offenses.

       {¶10} We recognize that R.C. 2929.11 and 2929.12 are not fact-finding statutes. Keith at

¶ 11. As a result, the trial court is not required to use particular language or make specific

findings on the record regarding its consideration of those factors. Id., citing State v. Wilson,

129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381; State v. Jones, 8th Dist. Cuyahoga No.
99759, 2014-Ohio-29. Consideration of the appropriate factors can be presumed unless the

defendant affirmatively demonstrates otherwise. Jones at ¶ 13, citing State v. Stevens, 1st Dist.

Hamilton No. C-130278, 2013-Ohio-5218. “Moreover, a trial court’s statement in its sentencing

journal entry that it considered the required statutory factors is sufficient to fulfill a trial court’s

obligations under R.C. 2929.11 and 2929.12.” Keith at ¶ 11, citing State v. Sutton, 8th Dist.

Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, citing State v. Clayton, 8th Dist.

Cuyahoga No. 99700, 2014-Ohio-112.

       {¶11} In the instant case, a review of the record reveals the trial court’s sentences for

Combs’s felony convictions are within the permissible statutory ranges under R.C. 2929.14(A).

The trial court’s sentencing journal entry provides that “[t]he court considered all required factors

of the law. The court finds that prison is consistent with the purposes of R.C. 2929.11.” At the

sentencing hearing, the trial court considered information in Combs’s PSI, directly referenced

R.C. 2929.11, and discussed the R.C. 2929.12 factors. The court stated:

       The Court has considered the record, the oral statements made here today, and the
       [PSI].

       The Court has considered the purposes and principles of sentencing under Section
       2929.11, and the seriousness and recidivism factors relevant to the offense and the
       offender pursuant to [R.C. 2929.12], and the need for deterrence, incapacitation,
       rehabilitation, and restitution.

       In terms of factors indicating that the offender’s conduct is more serious, there are
       three separate counts of drug trafficking, three separate types of drugs, one a
       felony of the fifth degree, and two felonies of the fourth degree.

       In terms of recidivism being more or less likely, the PSI demonstrates that
       recidivism is in fact more likely given his criminal history or record of prior
       convictions. Mr. Combs had several juvenile delinquency adjudications as a
       juvenile. He’s had prior felony convictions. He’s not done well on probation
       when he’s been given that opportunity in lieu of jail or prison time.
           It’s for these reasons that the Court finds that a prison sentence is consistent with
           the purposes and principles of sentencing under Revised Code Section 2929.11,
           and that the defendant is not amenable to a community control sanction due to the
           seriousness of the defendant’s conduct and because it is reasonably necessary to
           deter the offender in order to protect the public from future crimes and because it
           would not place an unnecessary burden on government resources.

           Mr. Combs, it’s been stated here today that you had a job; you have grandchildren.
            You have every good reason not to be trafficking in drugs. You have a history of
           drug trafficking and use[,] and so I would have thought by now you would have
           learned your lesson with regard to that, having other good things in your life.

           ***
           With regard to the felony of the fifth degree, the Court is imposing a prison
           sentence of 12 months.

           With regard to each of the trafficking offenses, the felonies of the fourth degree,
           the Court is imposing a prison term of 18 months.

           Those will be run concurrently. So you will be serving a sentence of 18 months.

           {¶12} Based on the foregoing, it is clear that the trial court properly considered both R.C.

2929.11 and 2929.12 when sentencing Combs. In doing so, the trial court expressly considered

Combs’s PSI, the nature of the offenses involved, his criminal history, and what Combs stated at

sentencing.      Under these circumstances, Combs has not shown by “clear and convincing

evidence that the record does not support the sentence.”             Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, at ¶ 23; Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234,

at ¶ 14.

           {¶13} Accordingly, the first and third assignments of error are overruled.

           {¶14} In the second assignment of error, Combs contends that Counts 1, 3, and 5 (drug

trafficking) are allied offenses and should have merged for purposes of sentencing.

           {¶15} Under R.C. 2941.25(B), a defendant charged with multiple offenses may be

convicted of all the offenses if: (1) the offenses are dissimilar in import or significance, (2) the
offenses were committed separately, or (3) the offenses were committed with separate animus or

motivation. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three

of the syllabus.

       {¶16} The Ruff court explained that two or more offenses are dissimilar within the

meaning of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving

separate victims or if the harm that results from each offense is separate and identifiable.” Id. at

paragraph two of the syllabus. Two or more offenses of dissimilar import are not subject to

merger because the harm to each victim is “separate and distinct.” Id. at ¶ 26.

       {¶17} Here, Combs pled to three counts of drug trafficking with each count listing a

different type of drug — heroin, methamphetamine, and fentanyl. Because these offenses are

dissimilar in import or significance, the trial court properly found that these offenses do not

merge for purposes of sentencing.

       {¶18} Therefore, the third assignment of error is overruled.

       {¶19} Judgment is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR
