[Cite as State v. Carnes, 2015-Ohio-4429.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2014-T-0120
        - vs -                                  :

MARK E. CARNES,                                 :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2014 CR 00395.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Mark E. Carnes, appeals the sentence of the Trumbull County

Court of Common Pleas following his guilty plea to 21 felony sex offenses. At issue is

whether the trial court committed plain error in imposing consecutive sentences. For

the reasons that follow, we affirm the trial court’s decision.

        {¶2}     On May 16, 2014, appellant was indicted by appellee, the state of Ohio,

on five counts of rape, felonies of the first degree, in violation of R.C. 2907.02(A)(2) and
(B); five counts of unlawful sexual conduct with a minor, felonies of the third degree, in

violation of R.C. 2907.04(A) and (B)(3); five counts of compelling prostitution, felonies of

the third degree, in violation of R.C. 2907.21(A)(2)(a) and (C); and eleven counts of

illegal use of a minor in nudity-oriented material or performance, felonies of the second

degree, in violation of R.C. 2907.323(A)(1) and (B). Specifically, the indictments stated

that appellant had engaged in this conduct with two female minors from 2009 through

2014. In 2009, the victims were 11 and 13 years old. Appellant entered a plea of not

guilty to all charges in the indictment.

       {¶3}   A change of plea hearing was held on October 2, 2014. At the hearing,

the trial court advised appellant of the following:

              Mr. Carnes, you understand also that all of the counts that you’ve
              been charged with, they can be ordered, at sentencing, to be
              served concurrently, which means you serve them all at one time,
              or they could be ordered to be served consecutively, some of them,
              whatever the Court would deem appropriate, could stack them on
              top of each other, which could result in a rather lengthy sentence. *
              * * The potential for you, if the court were to add all the charges on
              top of each other that you pled to, could result in a 128-year
              sentence; do you understand that?

       {¶4}   Appellant affirmed he understood, and no objection was raised at that

time. He then signed a written plea of guilty to five counts of unlawful sexual conduct

with a minor, five counts of compelling prostitution, and eleven counts of illegal use of a

minor in nudity-oriented material or performance.        The written plea contained the

following language: “The underlying agreement upon which this plea is based is as

follows: * * * The State will recommend a prison term that will include consecutive

sentence time.” The trial court accepted the plea on October 3, 2014, and a nolle




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prosequi was entered on the remaining five counts of rape. The trial court deferred

sentencing and ordered a presentence investigation report.

       {¶5}   Appellee filed a “sentencing memorandum: motion for consecutive

sentences” on October 18, 2014, to which appellant did not file a response.         On

November 13, 2014, the trial court held a sentencing hearing.         Pursuant to the

November 20, 2014 sentencing entry, the trial court found the five counts of unlawful

sexual conduct with a minor were subject to merge with the five counts of compelling

prostitution, respectively, as they were allied offenses of similar import.   Appellee

elected to sentence on the five counts of unlawful sexual conduct with a minor.

Appellant was sentenced to 60 months imprisonment for each count of unlawful sexual

conduct with a minor, to be served consecutively to each other. Appellant was also

sentenced to eight years imprisonment for each of the eleven counts of illegal use of a

minor in nudity-oriented material or performance, to be served concurrently with each

other but consecutively to the sentences for unlawful sexual conduct with a minor. This

resulted in an aggregate prison term of 33 years. Appellant was also fined $10,000 and

classified as a Tier II Sex Offender.

       {¶6}   Appellant filed a timely notice of appeal from this sentencing entry and

assigns one assignment of error for our review:

       {¶7}   “The trial court’s imposition of consecutive sentences upon the appellant

was both contrary to law and not supported by the evidence.”

       {¶8}   Appellant did not raise an objection to the imposition of consecutive

sentences at his sentencing hearing nor did he file a response in opposition to

appellee’s motion for consecutive sentences. Therefore, under the circumstances of




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this case, appellant has forfeited all but plain error on review. State v. Rogers, Slip

Opn. 2015-Ohio-2459, ¶21.

      {¶9}   “Crim.R. 52(B) affords appellate courts discretion to correct ‘[p]lain errors

or defects affecting substantial rights’ notwithstanding the accused’s failure to meet his

obligation to bring those errors to the attention of the trial court.”    Id. at ¶22.   To

constitute plain error, an error must be an obvious deviation from a legal rule that

affected the outcome.    Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002).

Further, the defendant has the burden of demonstrating plain error by proving the

outcome would have been different absent the error. State v. Payne, 114 Ohio St.3d

502, 2007-Ohio-4642, ¶17.

      {¶10} Appellate review of non-forfeited alleged error in felony sentences is

governed by R.C. 2953.08(G), which provides in pertinent part:

             (2) 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 * * * (C)(4) of section 2929.14 * * *;

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

We note, therefore, that even if appellant had not forfeited his argument regarding

consecutive sentences, the result would be the same on appeal. For if the trial court

made such an obvious error in sentencing appellant that it amounted to plain error, it

would be contrary to law under R.C. 2953.08(G)(2).




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       {¶11} Judicial fact-finding under R.C. 2929.14(C)(4) is “required to overcome the

statutory presumption in favor of concurrent sentences” found in R.C. 2929.41(A). State

v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶23. Appellant essentially argues that

the trial court did not overcome this presumption.

       {¶12} Pursuant to R.C. 2929.14(C)(4), consecutive sentences may be imposed if

the court finds “[1.] the consecutive service is necessary to protect the public from future

crime or to punish the offender and that [2.] consecutive sentences are not

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

offender poses to the public.” In addition, the trial court must also find [3.] that any of

the following apply to the offender being sentenced:

              (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.

       {¶13} The Ohio Supreme Court has stated that “[i]n order to impose consecutive

terms of imprisonment, a trial court is required to make the findings mandated by R.C.

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.” Bonnell, supra,

¶37.   The Supreme Court also held that the trial court’s imposition of consecutive



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sentences will be upheld even if it does not use the exact “words of the statute, provided

that the necessary findings can be found in the record and are incorporated into the

sentencing entry.” Id.

       {¶14} Here, the findings mandated by R.C. 2929.14(C)(4) are present in both the

sentencing transcript and sentencing entry. In one statement at the sentencing hearing,

the trial court efficiently satisfied each of the three requirements of R.C. 2929.14(C)(4):

              The Court finds that pursuant to Ohio Revised Code, Section
              2929.14, that the harm caused to the victim in this matter is so
              great that a single prison term would not adequately reflect the
              seriousness of the conduct of the defendant, and that the criminal
              behavior of the defendant over a long period of time with the victim
              shows consecutive sentences are needed to protect the public.

The sentencing entry incorporates these exact factual findings in writing.

       {¶15} Appellant’s specific contention is that the trial court made no finding as to

the “proportionality analysis whatsoever.” Although it would have been ideal for the trial

court to have explicitly stated the sentence was “proportionate” or “not disproportionate,”

as we noted, use of the exact words contained in the statute is not required. Bonnell,

supra, ¶37.     It is clear that, although the trial court did not explicitly mention

“proportionality,” it considered the imposition of sentence in relation to the seriousness

of appellant’s conduct and the danger posed to the public. At the sentencing hearing

the trial court outlined the facts that informed its finding of great harm suffered by the

victims, to wit: appellant is the uncle of the two victims; appellant acted as loco parentis

to the victims on many occasions; appellant used food and other necessities to

manipulate the victims; the older victim has suffered great mental injury; and appellant

has shown no genuine remorse for his conduct.




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       {¶16} Appellant has not demonstrated that the trial court’s imposition of

consecutive sentences constitutes plain error. In fact, appellant has not demonstrated

that the trial court committed any error. The trial court satisfied the requirements of R.C.

2929.14(C)(4) by finding that consecutive sentences were necessary to protect the

public, proportionate to the seriousness of appellant’s conduct, and that one single

prison term would not adequately reflect the seriousness of appellant’s multiple

offenses.

       {¶17} For all of the foregoing reasons, appellant’s assignment of error is without

merit. The judgment of the Trumbull County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                ____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶18} I disagree with the majority that the trial court properly imposed

consecutive sentences upon appellant based on my dissenting opinion in a similar

matter involving R.C. 2929.14(C)(4). State v. Koeser, 11th Dist. Portage No. 2013-P-

0041, 2013-Ohio-5838, ¶35-44 (O’Toole, J., dissenting with a Dissenting Opinion).

Finding merit in appellant’s assignment of error, I would reverse and remand for

resentencing.

       {¶19} I respectfully dissent.




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