[Cite as State v. Doss, 2012-Ohio-5751.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                     Nos. 98228 and 98229




                                           STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                           PRESTON DOSS

                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED
                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                            Case Nos. CR-558493 and CR-559132

       BEFORE: Kilbane, J., Boyle, P.J., and Jones, J.

       RELEASED AND JOURNALIZED: December 6, 2012

ATTORNEY FOR APPELLANT

Christopher R. Fortunato
13363 Madison Avenue
Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Diane Russell
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

     {¶1} In these companion cases, defendant-appellant, Preston Doss,

appeals from the consecutive sentences imposed for his convictions for drug

possession in Case Nos. CR-558493 and CR-559132.                 These cases were

combined for plea proceedings and sentencing. Defendant advances identical

arguments in both appeals, so we have sua sponte consolidated them for

review.1 For the reasons set forth below, we affirm.

     {¶2} On January 3, 2012, defendant was arrested after Cleveland

police found him unresponsive and lying in the street in the area of East

136th Street and Miles Avenue. He was subsequently charged in CR-559132

with drug possession and drug trafficking, both fifth degree felony offenses.

As amended, the State alleged that the offense involved less than the bulk

amount of phenylcyclohexylpiperidine or “PCP.”2


     1These   matters were scheduled for individual arguments.
     2   The indictment initially charged defendant with possession of and
      {¶3} On January 11, 2012, at approximately 9:00 a.m., Cleveland

police responded to a call regarding a domestic altercation.           As they

approached the defendant, they detected the odor of PCP. At this time, he

was also alleged to be in possession of 15 to 20 individually wrapped rocks of

crack cocaine. He was subsequently charged by information in CR-558493

with fifth degree felony drug possession and drug trafficking.

      {¶4} On February 22, 2012, defendant pled guilty to possession of PCP

as alleged in Count 1 of CR-559132, and guilty to possession of cocaine as set

forth in Count 2 of CR-558493.       The remaining charges were dismissed.

The court then ordered that defendant be screened for eligibility for

participation in the community-based correction program.         The court also

referred defendant to the court psychiatric clinic for recommendations

regarding disposition of the case.

      {¶5} Following a hearing on April 4, 2012, the court outlined the

circumstances of the offenses. Defendant’s attorney acknowledged that “his

assessment record shows him to be extremely high [risk for reoffending], but

there is a recommendation * * * that he could benefit from TASC [Treatment

Alternatives to Street Crime] evaluation as well as chemical dependency


trafficking in less than five grams of cocaine, but the indictment was amended
without objection from the defense on February 22, 2012, the date of the guilty
pleas.
assessment.” The trial court then outlined the purposes and principles of

felony sentencing under Am.Sub.H.B. No. 86 (“H.B. 86”) and noted

defendant’s extensive criminal history that spanned a 20-year period,

including numerous drug offenses.      The court listed a 1995 conviction for

fourth degree felony assault; a 1997 conviction for resisting arrest; a 1997

conviction for drug possession; 1998 convictions for drug possession and

attempted drug possession; a 1998 conviction for giving false information to

law enforcement; a 1998 conviction for assault on a police officer; a 2000

conviction for disorderly conduct; a 2000 conviction for drug abuse; a 2001

conviction for   drug abuse; 2001 misdemeanor convictions for domestic

violence, disorderly conduct, contempt of court, misconduct on public

transportation, obstructing official business, resisting arrest, and three

convictions for trafficking in cocaine in 2001; 2004 convictions for possession

of drugs with a firearm specification, having a weapon under disability, and

carrying a concealed weapon; a 2005 conviction for disorderly conduct; 2006

convictions for drug possession, burglary, and felonious assault.

      {¶6} The court stated:

      The court finds this defendant is not amenable to community
      control sanctions.   And this court has also considered the
      mitigation report and finds there are no psychiatric factors to this
      defendant’s conduct and that it was strictly the fact that he
      abuses drugs. And I know he has been placed on probation
      before and this court is not willing to risk the safety of the
      community and place this defendant on probation again.

      ***

      The court further finds that consecutive sentences in this matter
      are necessary to protect the public from the defendant’s behavior
      based upon his extensive criminal history.

      {¶7} The    trial   court   sentenced   defendant   to   12   months   of

imprisonment in CR-559132, to be served consecutive to a 12-month term

imposed in CR-558493. Defendant was also sentenced to up to three years of

postrelease control.   He appeals the sentenced imposed in both matters,

assigning two errors for our review.

      The trial court erred when it sentenced the Appellant to the
      maximum sentence on a fifth degree felony that is amenable to a
      community control sanction.

      {¶8} In reviewing a felony sentence, we take note of R.C. 2953.08(G),

which provides:

      (2) 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.

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

     (b) That the sentence is otherwise contrary to law.

     {¶9} The trial court has the full discretion to impose any term of

imprisonment within the statutory range, but it must consider the sentencing

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12, and

State v. Stone, 3d Dist. No. 9-11-39, 2012-Ohio-1895, ¶ 10, citing State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 36-42; State v.

Elston, 3d Dist. No. 12-11-11, 2012-Ohio-2842, ¶ 10.

     {¶10} R.C. 2929.11(A) provides that:

     [A] court that sentences an offender for a felony shall be guided

     by the overriding purposes of felony sentencing[,] * * * to protect

     the public from future crime by the offender and others and to

     punish the offender. To achieve those purposes, the sentencing

     court shall consider the need for incapacitating the offender,

     deterring   the    offender   and      others   from   future   crime,

     rehabilitating the offender, and making restitution to the victim

     of the offense, the public, or both.
      {¶11} 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.

      {¶12} In both cases, defendant pled guilty to one count of drug

possession, a fifth degree felony, in violation of R.C. 2925.11.           Drug

possession carries a possible prison term of between six months to twelve

months. See R.C. 2929.14(E). Defendant received the maximum term in both

matters.

      {¶13} Further, prior to imposing sentence, the court ordered that

defendant be screened for eligibility for participation in the community- based

correction program.      The court also referred defendant to the court

psychiatric   clinic.    These   assessments   offered   nothing   to   mitigate

punishment in this matter. The court carefully considered the circumstances

of the instant offense, noting that defendant presented a threat to public

safety and had not been amenable to community control sanctions.            The

court also noted defendant’s lengthy criminal record that spanned 20 years,

containing numerous drug offenses as well as assault convictions.

      {¶14} The sentence of 12 months of imprisonment is within the

statutory range for the offense, that is, six months to twelve months of

imprisonment.      R.C. 2925.11(C)(1)(a).   State v. Reynolds, 8th Dist. No.
96412, 2012-Ohio-583, ¶ 11. Moreover, in both matters, the imposition of

this term is supported by the record. The 12-month sentences imposed by

the trial court in CR-558493 and CR-559132 are commensurate with the

offense and defendant’s criminal history and meets all applicable statutes.

In consideration of the foregoing, we find no error.    The first assignment of

error is without merit.

      {¶15} Defendant’s second assignment of error states:

      The trial court erred when it ordered the Appellant to serve his

      term of incarceration consecutive to another term imposed in

      another criminal case.

      {¶16} As to the imposition of consecutive terms, we note that in

accordance with H.B. 86, which became effective on September 30, 2011,

fact-finding is required prior to the imposition of consecutive sentences.

State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28; State v. Bonner, 8th

Dist. No. 97747, 2012-Ohio-2931, ¶ 5.

      {¶17} R.C. 2929.14(C)(4) provides as follows:

      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, 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. (Emphasis added.)

       {¶18} Therefore, as revived, R.C. 2929.14(C)(4) now requires the trial

court to engage in a three-step analysis in order to impose consecutive

sentences.     State v. Lebron, 8th Dist. No. 97773, 2012-Ohio-4156, ¶ 10.

Under R.C. 2929.14(C)(4), in imposing consecutive sentences, the trial court must first find

the sentence is necessary to protect the public from future crime or to punish the offender.

Id.   Next, the trial court must find that consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public. Id.
       {¶19} Finally, the trial court must make at least one of the following findings:    (1) the

offender committed one or more of the multiple offenses while awaiting trial or sentencing,

while under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, or while under

postrelease control for a prior offense; (2) 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 offenses

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; or

(3) the offender’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.                    Id.; R.C.

2929.14(C)(a)-(c).

       {¶20} A trial court is not required to use “talismanic words to comply with the

guidelines and factors for sentencing.” State v. Brewer, 1st Dist. No. C-000148, 2000 Ohio

App. LEXIS 5455 (Nov. 24, 2000).       It must be clear from the record, however, that the trial

court actually made the findings required by statute.         State v. Pierson, 1st Dist. No.

C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998).         A trial court satisfies this statutory

requirement when the record reflects that the court has engaged in the required analysis and

has selected the appropriate statutory criteria. See State v. Edmonson, 86 Ohio St.3d 324,

326, 1999-Ohio-110, 715 N.E.2d 131.
        {¶21} In this matter, the trial court concluded that defendant was not amenable

to community control sanctions and that the sentence is necessary to protect the public from

future crime.     The court also concluded that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the offender

poses to the public because he “commit[ted] offenses, including offenses against his own

mother while high on probably one of the most dangerous drugs that you can be high on,

PCP.”    In addition, the trial court observed that two of the three requirements of

R.C. 2929.14(C)(4)(a),(b), and (c) were met. R.C. 2929.14(C)(4)(a) was met

because defendant committed the offenses while on postrelease control and

committed the January 11, 2012 offense while awaiting trial on the January

3, 2012 offense.        R.C. 2929.14(C)(4)(c) was           met because defendant’s

extensive criminal history demonstrated that consecutive sentences were necessary to

protect the public from future crime by the offender. The court noted that PCP is one

of the “most dangerous drugs that you can be high on.”                   The court also

concluded that the court ordered assessments had not revealed any

mitigatory factors.      Therefore, the trial court articulated the appropriate

findings consistent with the directives of R.C. 2929.14(C) and met the

requirements of the applicable law.

        {¶22} The second assignment of error is without merit.
     {¶23} Judgment affirmed.

     It is ordered that appellee recover from 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. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
