[Cite as State v. Manon, 2020-Ohio-1003.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :   Hon. William B. Hoffman, J.
                                               :   Hon. Patricia A. Delaney, J.
 -vs-                                          :
                                               :   Case No. 19-CA-55
                                               :
 RAMON A. MACEO MANON                          :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 18CR00699



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            March 13, 2020




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 CLIFFORD MURPHY                                   MICHAEL S. PROBST
 Asst. Licking Co. Prosecutor                      1207 Grandview Ave., Suite 205
 20 North Second St., 4th Floor                    Grandview, OH 43212
 Newark, OH 43055
Licking County, Case No. 19-CA-55                                                       2


Delaney, J.

       {¶1} Appellant Ramon A. Maceo Manon appeals from the June 6, 2019

Judgment of Sentence of the Licking County Court of Common Pleas. Appellee is the

state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from appellee’s bill of particulars filed

November 2, 2018.

       {¶3} On April 21, 2018, the Ohio State Highway Patrol responded to a traffic

crash on State Route 37 north of Mile Post 11 in Licking County, Ohio. Appellant was

operating a 2017 Honda Accord traveling southbound on S.R. 37 south of Alexandria. As

the Honda proceeded southbound, appellant attempted to pass a concrete truck which

was also southbound on S.R. 37. At the same time, a Chevrolet Uplander was traveling

northbound on S.R. 37.

       {¶4} The Honda attempted to overtake and pass the concrete truck, which had

a dashcam video system installed in the interior of the cab. The video shows the Honda

as it passes in front of the truck, and records the impact between the Honda and the

Uplander. After impact, the Honda rotates and is struck again by the concrete truck. As

a result of the impact, all parties were transported from the scene to area hospitals. The

airbag module of the Honda established the Honda reached a speed of 81 miles per hour

prior to impact. The posted speed limit in the area is 55 miles per hour.

       {¶5} David Doyle, driver of the concrete truck, had to be mechanically extracted

from the truck and life-flighted to Grant Hospital; he sustained serious physical harm.
Licking County, Case No. 19-CA-55                                                         3


Laurine Anderson, passenger in the Uplander, also sustained serious physical harm as a

result of the head-on collision.

        {¶6} Appellant operated a motor vehicle under the influence of alcohol and/or

with a per-se violation of alcohol, to wit, 1.82 grams by weight of alcohol per one hundred

milliliters (gram per cent) of whole blood, pursuant to a search warrant for his blood.

Police noted a strong odor of alcohol, slurred speech, glassy and bloodshot eyes, poor

coordination and lack of awareness, and six out of six clues on the H.G.N. field-sobriety

test.

        {¶7} Appellant was charged by indictment with two counts of aggravated

vehicular assault pursuant to R.C. 2903.08(A)(1)(a), both felonies of the third degree, and

one count of O.V.I. pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.

        {¶8} Appellant entered pleas of not guilty and filed a motion to suppress the

blood test results, his statements, the search of his vehicle, and the observations and

opinions of police investigators including the results of standardized field sobriety tests.

Appellee responded with a memorandum in opposition, and appellant filed a

supplemental motion to suppress on February 19, 2019.

        {¶9} On April 10, 2019, a Notice of Intent to Enter a Plea of No Contest was filed.

On April 11, 2019, appellee filed a motion to amend Counts I and II from aggravated

vehicular assault pursuant to R.C. 2903.08(A)(1)(a) to aggravated vehicular assault

pursuant to R.C. 2903.08(A)(2)(b) [felonies of the fourth degree], and to dismiss Count

III, O.V.I. Appellee stated the amendments and dismissal are due to the inability to obtain

a chain of custody documentation from the hospital that collected blood vials from

appellant. The trial court granted appellee’s motion.
Licking County, Case No. 19-CA-55                                                     4


       {¶10} On April 11, 2019, appellant appeared before the trial court to enter pleas

of no contest to Counts I and II as amended. The trial court deferred sentencing pending

completion of a pre-sentence investigation (P.S.I.).

       {¶11} The sentencing hearing commenced on June 6, 2019. The trial court

imposed prison terms of twelve months each upon Counts I and II, to be served

consecutively.

       {¶12} Appellant now appeals from the trial court’s Judgment of Sentence of June

6, 2019.

       {¶13} Appellant raises five assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶14} “I. MR. MACEO MANON’S PRISON SENTENCES FOR THE FOURTH

DEGREE FELONY OFFENSES OF VEHICULAR ASSAULT ARE CONTRARY TO THE

LAW AS THE TRIAL COURT DID NOT INQUIRE OF THE OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION REGARDING PROGRAMS THAT MAY BE

AVAILABLE TO MR. MACEO MANON PRIOR TO IMPOSING A PRISON SENTENCE

AS REQUIRED BY R.C. 2929.13(B)(1)(C).”

       {¶15} “II. MR. MACEO MANON’S PRISON SENTENCES FOR THE FOURTH

DEGREE FELONY OFFENSES OF VEHICULAR ASSAULT ARE CONTRARY TO THE

LAW AS THE TRIAL COURT TRANSCENDED ITS DISCRETION WHEN IT STATED

ON THE RECORD THAT ITS SENTENCE WAS BASED IN WHOLE OR IN PART ON

ITS CONCLUSION THAT MR. MACEO MANON WAS GUILTY OF A HIGHER,

DISMISSED CHARGE AND FOR CONSIDERING SUCH EVIDENCE WHEN IMPOSING

A PRISON SENTENCE.”
Licking County, Case No. 19-CA-55                                                       5


      {¶16} “III. MR. MACEO MANON’S CONSECUTIVE PRISON SENTENCES FOR

THE FOURTH DEGREE FELONY OFFENSES OF VEHICULAR ASSAULT ARE

CONTRARY TO THE LAW AS THE TRIAL COURT FAILED TO MAKE THE REQUISITE

FINDINGS UNDER R.C. 2929.14(C)(4) AT THE SENTENCING HEARING.”

      {¶17} “IV. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO

THE IMPOSITION OF A SENTENCE THAT WAS CONTRARY TO LAW.”

      {¶18} “V. MR. MACEO MANON’S PRISON SENTENCES FOR THE FOURTH

DEGREE FELONY OFFENSES OF VEHICULAR ASSAULT [ARE] CONTRARY TO THE

LAW WHERE THE COURT FOUND THAT IT HAD DISCRETION TO IMPOSE A

PRISON SENTENCE UNDER OHIO REVISED CODE SECTION 2929.13(B)(1)(B)(II).”

                                      ANALYSIS

                                    I., II., III., and V.

      {¶19} Appellant’s first, second, and fifth assignments of error are related and will

be considered together. Appellant argues the imposition of consecutive prison terms

upon his convictions of two felonies of the fourth degree is in error pursuant to R.C.

2929.13. We disagree.

      {¶20} We review the imposed sentence under the standard of review set forth

in R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. An appellate court may modify or vacate

a sentence only if the appellate court finds by clear and convincing evidence that “the

record does not support the trial court's findings under relevant statutes or that the

sentence is otherwise contrary to law.” Id. A sentence is not clearly and convincingly

contrary to law where the trial court “considers the principles and purposes of R.C.
Licking County, Case No. 19-CA-55                                                         6


2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease

control, and sentences the defendant within the permissible statutory range.” State v.

Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-026, 2019-Ohio-4209, ¶

36. Thus, this court may “increase, reduce, or otherwise modify a sentence only when it

clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported

by the record.” State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d

1217 ¶ 1.

       {¶21} Appellant cites the following language in [former] R.C. 2929.13(B)(1)(c) as

support for his argument that the trial court was required to impose a term of community

control instead of prison:

                     If a court that is sentencing an offender who is convicted of or

              pleads guilty to a felony of the fourth or fifth degree that is not an

              offense of violence or that is a qualifying assault offense believes that

              no community control sanctions are available for its use that, if

              imposed on the offender, will adequately fulfill the overriding

              principles and purposes of sentencing, the court shall contact the

              department of rehabilitation and correction and ask the department

              to provide the court with the names of, contact information for, and

              program details of one or more community control sanctions that are

              available for persons sentenced by the court. Not later than forty-five

              days after receipt of a request from a court under this division, the

              department shall provide the court with the names of, contact

              information for, and program details of one or more community
Licking County, Case No. 19-CA-55                                                          7


              control sanctions that are available for persons sentenced by the

              court, if any. Upon making a request under this division that relates

              to a particular offender, a court shall defer sentencing of that offender

              until it receives from the department the names of, contact

              information for, and program details of one or more community

              control sanctions that are available for persons sentenced by the

              court or for forty-five days, whichever is the earlier.

       {¶22} As appellee points out, however, pursuant to R.C. 2929.13(B)(1)(b)(ii), the

trial court has discretion to impose a prison term upon an offender who is convicted of or

pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence if

the offender caused physical harm to another person while committing the offense. In

the instant case, appellant caused serious physical harm to two victims and physical harm

to additional victims in the crash. Appellant argues, without citation, that the trial court

did retain discretion to impose a prison term where the defendant caused physical harm,

but “the trial court must contact ODRC and request information concerning available

community control programs.”       Brief, 4.   We find no such requirement in the plain

language of the statute.

       {¶23} The presumption of a community-control sanction is subject to the

exceptions listed in R.C. 2929.13(B)(1)(b). The exception that the trial court found

applicable in this case, R.C. 2929.13(B)(1)(b)(ii), permits a court, in its discretion, to

impose a term of imprisonment for a nonviolent fourth-degree felony after finding that “the

offender caused physical harm to the victim while committing the offense.” (Emphasis

added.) State v. Jones, 1st Dist. Hamilton No. C-140299, 2015-Ohio-1189, ¶ 10, citing
Licking County, Case No. 19-CA-55                                                         8


State v. Barnes, 11th Dist. Trumbull No. 2012–T–0049, 2013–Ohio–1298, ¶ 16. In the

instant case, appellee noted at sentencing that the exception to community-control

applied, and the trial court found the prison term was warranted due to, e.g., the extent of

the injuries sustained by the victims. T. Sentencing, 11-12.

       {¶24} Appellant next argues that the trial court erred in considering evidence of

the more serious felonies as originally indicted, and the O.V.I. charge which was

dismissed. We have reviewed the record of the sentencing hearing and do not find that

the remarks of the trial court were improper, much less that they constitute a reason to

invalidate the sentence.

       {¶25} In State v. Bailey, 5th Dist. Ashland No. 14-COA-008, 2014-Ohio-5129, at

¶ 26, we stated the following regarding the impact of those factors the trial court may

consider during sentencing:

                     * * * *. Appellant also takes issue with the emphasis the trial

              court placed on his drug abuse and voluntary admissions contained

              within the P.S.I., but such information is solidly relevant to the

              sentencing analysis. Evidence of other crimes, including crimes that

              never result in criminal charges being pursued, or criminal charges

              that are dismissed as a result of a plea bargain, may be considered

              at sentencing. State v. Starkey, 7th Dist. Mahoning No. 06 MA 110,

              2007–Ohio–6702, ¶ 17, citing State v. Cooey, 46 Ohio St.3d 20, 35,

              544 N.E.2d 895 (1989). Furthermore, what the defendant is originally

              charged with and whether the charge is reduced in exchange for a

              plea is relevant to the court in determining the appropriate sentence.
Licking County, Case No. 19-CA-55                                                       9


             State v. Hill, 7th Dist. Mahoning No. 13 MA 1, 2014–Ohio–919, ¶ 35.

             Our review of a felony sentence includes: (1) the P.S.I.; (2) the trial

             court record; and (3) any oral or written statements made to or by the

             court at the sentencing hearing. R.C. 2953.08(F). Allegations against

             an offender which never resulted in criminal charges may be

             contained within a P.S.I. Cooey, 46 Ohio St.3d at 35, 544 N.E.2d

             895. This information is part of a defendant's social history and

             worthy of consideration by the courts during the sentencing phase.

             Id.

      {¶26} We find the trial court’s remarks were not improper and the trial court was

required to consider the circumstances of the crash, the injuries of the victims, and

appellant’s comments in the P.S.I.

      {¶27} Finally, appellant argues the trial court failed to make the required findings

to impose consecutive sentences. In Ohio, there is a statutory presumption in favor of

concurrent sentences for most felony offenses. R.C. 2929.41(A). The trial court may

overcome this presumption by making the statutory, enumerated findings set forth in R.C.

2929.14(C) (4). State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659,

¶ 23. This statute requires the trial court to undertake a three-part analysis. State v.

Alexander, 1st Dist. Hamilton Nos. C–110828 and C–110829, 2012–Ohio–3349, 2012

WL 3055158, ¶ 15.

      {¶28} R.C. 2929.14(C)(4) provides,

                    If multiple prison terms are imposed on an offender for

             convictions of multiple offenses, the court may require the offender
Licking County, Case No. 19-CA-55                                                    10


             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.

      {¶29} In State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659,

syllabus, the Supreme Court of Ohio stated that: “In order to impose consecutive terms

of imprisonment, a trial court is required to make the findings mandated by R.C.
Licking County, Case No. 19-CA-55                                                        11


2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.”

       {¶30} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s 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. A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶ 34. The findings required by R.C.

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing

entry. Id. at the syllabus. However, a trial court's inadvertent failure to incorporate the

statutory findings in the sentencing entry after properly making those findings at the

sentencing hearing does not render the sentence contrary to law; rather, such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what

actually occurred in open court. Bonnell, ¶ 30.

       {¶31} In the instant case, the record does support a conclusion that the trial court

made all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences. We are able to discern that the trial court engaged in the correct analysis and

the record contains evidence to support the findings:

                     THE COURT: * * * *. I have considered the statements of the

              parties, the overriding purposes of felony sentencing, and the

              relevant seriousness and recidivism factors. I’ve considered the

              presentence investigation report, victim impact statements, the

              letters in support of the Defendant. Taking all of these factors into
Licking County, Case No. 19-CA-55                                                        12


              consideration, I find that this is a prison sentence due to the—the

              nature of the injuries that the victims sustained here, and frankly the

              underlying circumstances here. * * * *.

                     I’m going to impose a prison term on each count; twelve

              months on each count.        Those will be ordered to be served

              consecutively with one another. * * * *.

                     I find that any presumption in favor of concurrent terms in this

              case is overcome by the fact that concurrent terms would not

              adequately punish the offender, protect the public, and that it would

              demean the seriousness of the offense.

                     * * * *.

                     T. Sentencing, 12-13.

       {¶32} We find that the record in the case at bar clearly and convincingly supports

the trial court's findings under R.C. 2929.14(C)(4). We find by clear and convincing

evidence that the record does support the trial court's findings under the relevant statutes

and the sentence is not contrary to law.

       {¶33} Appellant’s first, second, third, and fifth assignments of error are overruled.

                                                IV.

       {¶34} In his fourth assignment of error, appellant argues he received ineffective

assistance of trial counsel because the defense trial counsel did not object to his

purportedly-improper sentence.      In light of our conclusions supra that appellant’s

sentence is not contrary to law or otherwise improper, we disagree.
Licking County, Case No. 19-CA-55                                                          13


        {¶35} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong    test.   Initially,   a   defendant   must    show    that   trial   counsel    acted

incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In

assessing such claims, “a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S.

91, 101, 76 S.Ct. 158 (1955). “There are countless ways to provide effective assistance

in any given case. Even the best criminal defense attorneys would not defend a particular

client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel

acted “outside the wide range of professionally competent assistance.” Id. at 690.

        {¶36} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

        {¶37} In the instant case, we have found that appellant’s sentence was proper,

supra. We are therefore unable to find that defense trial counsel erred in failing to object

to the sentence, much less that appellant suffered any prejudice therefrom. Appellant

has not established ineffective assistance of counsel and the fourth assignment of error

is overruled.
Licking County, Case No. 19-CA-55                                                   14


                                    CONCLUSION

      {¶38} Appellant’s five assignments of error are overruled and the judgment of the

Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.
