[Cite as State v. Eaddie, 2018-Ohio-961.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 106019



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                     THOMAS EADDIE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-16-605555-A and CR-16-607340-A

        BEFORE:          Blackmon, P.J., Laster Mays, J., and Jones, J.

        RELEASED AND JOURNALIZED:                     March 15, 2018
ATTORNEY FOR APPELLANT

Michael Goldberg
The Goldberg Law Firm
323 Lakeside Avenue, West, Suite 450
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:

       {¶1} Defendant-appellant Thomas Eaddie (“Eaddie”) appeals from the

consecutive sentences imposed following his convictions in Case Nos. CR-16-605555-A

and CR-16-607340-A. Eaddie assigns the following error for our review:

       The sentence imposed by the trial court was unreasonable and contrary to

       law.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

sentence.     The apposite facts follow.

       {¶3}      On May 9, 2016, Eaddie was indicted in CR-16-605555-A.            He was

charged with having a weapon while under disability, improperly handling firearms in a

motor vehicle, carrying a concealed weapon, two counts of drug trafficking, two counts of

drug possession, and possessing criminal tools. The counts also contained various

forfeiture specifications and the drug charges contained one-year firearm specifications.

       {¶4} On June 29, 2016, Eaddie was indicted in CR-16-607340-A.               He was

charged with aggravated burglary, misdemeanor assault, domestic violence, criminal

damaging, burglary, three counts of menacing by stalking, and possessing criminal tools.

       {¶5} Eaddie pled not guilty in both cases, and the trial court ordered Eaddie to

undergo inpatient competency and sanity evaluations.        The court also appointed an

expert for an independent psychological evaluation.

       {¶6} Eaddie subsequently reached plea agreements with the state in both matters.

In CR-16-605555-A, Eaddie pled guilty to having a weapon while under disability, and to
one amended count of drug trafficking following the deletion of the firearm specification.

 The remaining counts were nolled.           In    CR-16-607340-A, Eaddie pled guilty to

domestic violence, burglary, and menacing by stalking, and the remaining counts were

nolled.

          {¶7} On June 21, 2017, Eaddie was sentenced to thirty months in

CR-16-605555-A,        to   run    consecutive    with   a   seven-year   term   sentence   in

CR-16-607340-A.

                                    Consecutive Sentences

          {¶8} In his sole assigned error, Eaddie argues that the trial court erred in

imposing consecutive sentences because the record does not support the court’s findings

under R.C. 2929.14(C), and because the court expressed hostility and bias against Eaddie

during sentencing.

          {¶9} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under

R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it

may vacate the sentence and remand for resentencing, only if it clearly and convincingly

finds either (1) the record does not support certain specified findings, or (2) the sentence

imposed is contrary to law.       An appellate court does not review a trial court’s sentence

for an abuse of discretion. Marcum at ¶ 10.         Rather, an appellate court may vacate or

modify any sentence that is not clearly and convincingly contrary to law only if the
appellate court finds by clear and convincing evidence that the record does not support

the sentence.   Id. at ¶ 23.   In accordance with R.C. 2953.08(A)(1), Eaddie may appeal

as of right the imposition of consecutive sentences.

       {¶10} Before a trial court may impose consecutive sentences, the court must first

make specific findings mandated by R.C. 2929.14(C)(4) and incorporate those findings in

the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 37. Under R.C. 2929.14(C)(4), the court must find that consecutive sentences

are: (1) necessary to protect the public from future crime or to punish the offender; and

(2) are not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender posses to the public. R.C. 2929.14(C)(4). In addition to making those

findings, the court must also find one 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 postrelease 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.

Id.
       {¶11}    Although the requisite findings must be made, the trial court “has no

obligation to state reasons to support its findings,” so long as “the necessary findings can

be found in the record and are incorporated into the sentencing entry.” Bonnell at ¶ 37.

       {¶12} At the sentencing hearing in this matter, the trial court stated as follows:

       You have a terrible record, okay? Which began as far back as 2003 with
       aggravated rioting as a juvenile, failure to comply with a signal or order of a
       police officer as an adult. Obviously open container, driving under the
       influence, drug trafficking * * * Anyway, you have had drug trafficking
       cases previously, aggravated menacing [in 2011 and 2016]. It’s obvious
       from your record and the answers to my questions that it is necessary to run
       them consecutive to protect the public from future crime from you, and I
       don’t believe it’s disproportionate to the seriousness of your conduct and
       the danger to the public. You are a drug dealer. You continue to sell
       drugs. You continue to carry weapons. You continue to act in a manner
       close to menacing, your third time, and at least your history of criminal
       conduct demonstrates that consecutive sentences are necessary to protect
       the public from future crime by you.
       {¶13} These statements demonstrate that the trial court considered Eaddie’s

extensive criminal history and the nature of his conduct in the instant matters.   The court

found that the consecutive sentences are necessary to protect the public from future crime

in light of Eaddie’s criminal history, and that the court determined that consecutive

sentences were necessary to punish him due to his continued involvement in criminal

activity.   Additionally, based upon Eaddie’s record and conduct, the court clearly found

that consecutive sentences are not disproportionate to the seriousness of           Eaddie’s

conduct and to the danger he presents to the public. Additionally, the court found and

the record shows, that Eaddie’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime.     Further, the sentencing

journal entries set forth all of the findings required under R.C. 2929.14(C)(4).
Therefore, we conclude that the trial court made all of the required R.C. 2929.14(C)(4)

findings before imposing consecutive sentences in this matter.

       {¶14}    Having determined that the trial court made the required findings under

R.C. 2929.14(C)(4), we next consider whether the record supported those findings. State

v. Moore, 2014-Ohio-5135, 24 N.E.3d 1197 (8th Dist.). Here, Eaddie’s record contains

other drug offenses, aggravated vehicular assault, failure to comply, and menacing.    His

record, and the circumstances of the instant offenses, support the trial court’s conclusion

that consecutive sentences are necessary to protect the public from future crime or to

punish the offender, and are not disproportionate to the seriousness of his conduct and to

the danger he presents to the public.   Additionally, the record demonstrates that Eaddie’s

history of criminal conduct demonstrates that consecutive sentences are necessary to

protect the public from future crime.

                                        Judicial Bias

       {¶15} Eaddie next argues that during sentencing, the trial court exhibited bias and

hostility against him because it “badgered,” “mocked,” and demeaned him while

“feigning concern” about his medical condition prior to his plea and during sentencing.

       {¶16}   R.C. 2701.03 provides the exclusive means by which a litigant may claim

that a common pleas court judge is biased and prejudiced. State v. Bacon, 8th Dist.

Cuyahoga No. 85475, 2005-Ohio-6238, ¶ 66; State v. Casada, 8th Dist. Cuyahoga No.

103362, 2016-Ohio-2633, ¶ 25, citing State ex rel. Pratt v. Weygandt, 164 Ohio St. 463,

132 N.E.2d 191 (1956), paragraph three of the syllabus; Jones v. Billingham, 105 Ohio
App.3d 8, 663 N.E.2d 657 (2d Dist.1995). A court of appeals has “no authority to

determine a claim that a trial judge is biased or prejudiced against a defendant and no

authority to void a trial court’s judgment based on a claim that the trial judge is biased or

prejudiced.”    State v. Frazier, 8th Dist. Cuyahoga No. 104264, 2017-Ohio-8307, ¶ 16,

citing State v. Williamson, 8th Dist. Cuyahoga No. 104294, 2016-Ohio-7053, ¶ 27. A

litigant who believes that the trial judge should be disqualified must file an affidavit of

bias or prejudice with the clerk of the supreme court pursuant to R.C. 2701.03. Id.

       {¶17} However, in       State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937

N.E.2d 97, the court recognized that “trial before a biased judge is fundamentally unfair

and denies a defendant due process of law.” Id. at ¶ 48, quoting State v. LaMar,

95   Ohio      St.3d   181,   2002 -Ohio -2128,      767    N.E.2d 166, ¶ 34. However,

“opinions formed by the judge on the basis of facts introduced or events occurring in the

course of the current proceedings, or of prior proceedings, do not constitute a basis for a

bias or partiality motion unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible.” Dean at ¶ 49, quoting Liteky v. United States,

510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).

       {¶18}       This court applied the foregoing principles to sentencing challenges in

Frazier, and in State v. Filous, 8th Dist. Cuyahoga No. 104287, 2016-Ohio-8312, to

determine whether purported judicial bias rendered the sentence unlawful.        The Filous

court explained:
       [t]he law presumes that a judge is unbiased and unprejudiced in the matters

       over which he or she presides, and the appearance of bias or prejudice must

       be compelling in order to overcome the presumption. State v. Power, 7th

       Dist. Columbiana No. 12 CO 14, 2013-Ohio-4254, ¶ 23, citing In re

       Disqualification of Olivito, 74 Ohio St.3d 1261, 1262, 657 N.E.2d 1361

       (1994).

Filous at ¶ 14.

       {¶19}      In this matter, the record demonstrates that when the competency and

sanity reports were stipulated into evidence, the trial court made the following remark:

       And the [competency and sanity report] findings are that he does not have a
       present mental condition that is within reasonable medical certainty, and
       that he is presently malingering his psychiatric symptoms and cognitive
       deficits.

       {¶20}      We have reviewed the record and conclude that the trial court was

restating the conclusions reached in the sanity and competency report.       The statement

contained a term of art used in the report that was a fair comment upon facts introduced

or events occurring in the course of the current proceedings.      The statement does not

constitute a basis for a bias or partiality.

       {¶21} Additionally, the court stated during pretrial proceedings:

       So I’m asking you, do you want me to order that they stabilize your head so

       it doesn’t move?      They can do that.   People who are in accidents that

       have those problems, they screw a frame like onto your head — it’s call a

       halo — into your shoulders and into your head. And then your head will
       never move, you just — your body can move, but your head is immobilized.

        Is that what you need? And you thinking about that bullet in your head can

       make your day bad. So try to think about other things. Try to think about

       good things. * * *

       I guess I would look at it this way. You were lucky that you got shot in the
       head and you didn’t die, you know? So every day that that bullet doesn’t
       shift is a day that you might not have had; do you know what I mean? * *
       *
       Well, I said I’m going to get your medical records, I’ll give them to my
       experts, and they’ll tell me if you’re getting the right treatment or not, okay?

       {¶22} We have reviewed the comments and find absolutely no evidence to

overcome the presumption that the trial court was not biased or prejudiced against Eaddie.

 The comments were part of repeated inquiries to determine whether Eaddie needed

additional medical treatment to stabilize his head and prevent movement of the bullet.

The comments were neither demeaning nor mocking.               To the contrary, the record

indicates that the court shared one of its own experiences with Eaddie and offered

strategies to him.   The court expressed empathy for Eaddie and stated that it would make

further inquiries about his condition and medical needs. In no way do the comments

display a deep-seated favoritism or antagonism and they do not undermine the lawful

sentence that the court imposed.

       {¶23}    The assigned error is without merit.

       {¶24}    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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR
