[Cite as State v. Waxler, 2017-Ohio-7536.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                          Court of Appeals No. L-16-1269

        Appellee                                       Trial Court No. CR0201002858

v.

David Waxler                                           DECISION AND JUDGMENT

        Appellant                                      Decided: September 8, 2017

                                                *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        John F. Potts, for appellant.

                                                *****

        JENSEN, P.J.

                                             I. Introduction

        {¶ 1} Appellant, David Waxler, appeals the judgment of the Lucas County Court

of Common Pleas, sentencing him to a total of 13 years in prison after we remanded the

matter to the trial court for resentencing.
                          A. Facts and Procedural Background

       {¶ 2} In State v. Waxler, 2016-Ohio-5435, 69 N.E.3d 1132, ¶ 2-5 (6th Dist.), we

outlined the facts relevant to this appeal as follows:

              On October 15, 2010, David Waxler was indicted on five counts of

       possession of cocaine, five counts of trafficking in crack cocaine, and two

       counts of disposing of stolen property, after selling crack cocaine and stolen

       firearms to an undercover agent of the Bureau of Alcohol, Tobacco, and

       Firearms. He entered a no contest plea to Count 1 of the indictment

       (trafficking in cocaine, a violation of R.C. 2925.03(A)(2) and (C)(4)(c), a

       third-degree felony); Count 4 (possession of cocaine, a violation of R.C.

       2925.11(A) and (C)(4)(c), a third-degree felony); Count 5 (trafficking in

       cocaine, a violation of R.C. 2925.03(A)(2) and (C)(4)(e), a second-degree

       felony); Count 7 (receiving stolen property, a violation of R.C. 2913.51, a

       fourth-degree felony); and Count 11 (possession of cocaine, a violation of

       R.C. 2925.11(A) and (C)(4)(d), a second-degree felony).

              Following its review of a presentence investigation report, the trial

       court sentenced Waxler to a prison term of three years on Count 1, three

       years on Count 4, five years on Count 5, 15 months on Count 7, and five

       years on Count 11. It ordered that Counts 1, 4, and 7 be served concurrently

       with each other, but consecutively with Counts 5 and 11. Additionally, it

       ordered that Counts 5 and 11 be served consecutively to each other. This




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     resulted in an aggregate prison term of 13 years. The court imposed a

     $25,000 fine and a period of postrelease control. Waxler’s sentence was

     memorialized in an order journalized on April 11, 2011.

             Waxler appealed the April 11, 2011 judgment. He argued that the

     trial court abused its discretion in imposing consecutive sentences and in

     finding that he “caused or threatened physical harm to a person.” In a

     decision dated August 10, 2012, we rejected Waxler’s argument that the

     trial court abused its discretion in imposing consecutive sentences,

     however, we agreed that there was no support for the trial court’s finding

     that defendant caused or threatened physical harm. State v. Waxler, 6th

     Dist. Lucas No. L-11-1101, 2012-Ohio-3619, ¶ 5. We determined that this

     erroneous finding was a substantive legal decision not amenable to

     correction through a nunc pro tunc entry, and that the sentencing entry

     must, therefore, be vacated and the matter remanded for resentencing. Id.

     at ¶ 16. We also observed that the trial court inaccurately characterized

     appellant’s plea as “a plea of guilty pursuant to North Carolina v. Alford.”

     Id. at ¶ 5.

             Waxler was resentenced on October 4, 2012. The court corrected

     the plea designation, omitted the reference to physical harm, and waived the

     previously-imposed $25,000 fine due to Waxler’s filing of an affidavit of

     indigence, but it reimposed the 13-year aggregate prison sentence. The new




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       sentencing entry was journalized on October 10, 2012. On August 13,

       2015, Waxler sought leave to file a delayed appeal, which we granted in an

       order dated November 5, 2015.

       {¶ 3} In his delayed appeal before this court, Waxler argued that his sentence was

contrary to law because the trial court failed to make the requisite findings under R.C.

2929.14(C)(4) to justify the imposition of consecutive sentences. Id. at ¶ 5. At the

outset, we noted that it was undisputed that the trial court failed to make the findings

required under R.C. 2929.14(C)(4). Accordingly, we remanded the matter to the trial

court for resentencing, with instructions to the trial court that it “must determine solely

whether the R.C. 2929.14(C)(4) factors support the imposition of consecutive sentences.”

Id. at ¶ 29.

       {¶ 4} Waxler was resentenced on October 12, 2016. At the hearing held on that

date, Waxler’s counsel argued that consecutive sentences were not appropriate under

R.C. 2929.14(C)(4). Counsel asserted that Waxler did not commit the offenses for which

he was found guilty while awaiting trial or sentencing. Thus, he argued that Waxler

could not be ordered to serve consecutive sentences under R.C. 2929.14(C)(4)(a).

Further, counsel argued that Waxler’s criminal history, which consists of one

misdemeanor and one juvenile delinquency finding, did not justify consecutive sentences

under R.C. 2929.14(C)(4)(c). Finally, counsel urged that the harm caused by Waxler’s

offenses was not so great or unusual that concurrent sentences would demean the

seriousness of Waxler’s conduct, as required under R.C. 2929.14(C)(4)(b). Rather,




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counsel contended that there was no harm in this case because Waxler sold drugs to

confidential informants who were working with law enforcement at the time of the

transactions.

       {¶ 5} Upon consideration, the trial court rejected Waxler’s arguments and ordered

him to serve three years in prison for trafficking in cocaine in Count 1, three years for

possession of cocaine in Count 4, five years for trafficking in cocaine in Count 5, 15

months for receiving stolen property in Count 7, and five years for possession of cocaine

in Count 11. The court ordered that Counts 1, 4, and 7 be served concurrently with each

other, but consecutively with Counts 5 and 11. Additionally, it ordered that Counts 5 and

11 be served consecutively to each other, for a total prison sentence of 13 years.

       {¶ 6} Regarding its imposition of consecutive sentences, the court explained that

“at least two of the multiple offenses were committed as part of one or more courses of

conduct and the harm caused was so great or unusual that no single prison term for any of

these offenses * * * adequately reflects the seriousness of the offender’s conduct.”

                                  B. Assignment of Error

       {¶ 7} Following the trial court’s imposition of consecutive sentences, Waxler filed

a timely notice of appeal, and now assigns the following error for our review:

                It constituted error to impose consecutive sentences because the

       record does not support the finding required under R.C. 2929.14(C)(4)(b)

       that the harm caused was so great or unusual that no single prison term for




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      any of the offenses committed adequately reflects the seriousness of the

      offender’s conduct.

                                      II. Analysis

      {¶ 8} In his sole assignment of error, Waxler argues that the trial court improperly

imposed consecutive sentences based upon its erroneous finding that the harm he caused

was so great or unusual that no single prison term for any of the offenses he committed

would adequately reflect the seriousness of his conduct under R.C. 2929.14(C)(4)(b).

      {¶ 9} We review consecutive sentences using the standard of review set forth in

R.C. 2953.08. State v. Jude, 6th Dist. Lucas No. L-13-1185, 2014-Ohio-3441. R.C.

2953.08(G)(2) provides two grounds for a reviewing court to overturn the imposition of

consecutive sentences: the sentence is “otherwise contrary to law,” or the reviewing

court clearly and convincingly finds that “the record does not support the sentencing

court’s findings” under R.C. 2929.14(C)(4).

      {¶ 10} R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences as

follows:

             (4) 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




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       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.

       {¶ 11} Construing the foregoing statute, we have stated that the trial court must

perform a three-part analysis before imposing consecutive sentences. State v. R.S., 6th

Dist. Erie No. E-14-099, 2015-Ohio-3194, ¶ 27. First, the court must find that

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

the offender.” Second, the 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.” Third, the trial court must find that at least one of the




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factors listed in R.C. 2929.14(C)(4)(a)-(c) applies. State v. Banks, 6th Dist. Lucas No.

L-13-1095, 2014-Ohio-1000, ¶ 11.

       {¶ 12} When imposing consecutive sentences, the trial court is not required to

recite any “magic” or “talismanic” words provided it is “‘clear from the record that the

trial court engaged in the appropriate analysis.’” State v. Wright, 6th Dist. Lucas Nos.

L-13-1056, L-13-1057, L-13-1058, 2013-Ohio-5903, ¶ 33, quoting State v. Murrin, 8th

Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12. “‘While the trial court need not quote

the statute verbatim, the findings must be made in the sentencing entry.’” State v.

Trevino, 6th Dist. Erie No. E-13-022, 2014-Ohio-3363, ¶ 26, quoting State v. Jude, 6th

Dist. Wood No. WD-13-055, 2014-Ohio-2437, ¶ 10. Moreover, the findings set forth in

the sentencing entry “must be supported by the record from the sentencing hearing.”

Jude at ¶ 10, citing R.C. 2953.08(G)(2)(a).

       {¶ 13} The sentencing entry in this case contains the following findings

concerning the decision to impose consecutive sentences:

              Being necessary to fulfill the purposes of R.C. 2929.11 and

       2929.14(C)(4), consecutive sentences are necessary to protect the [public]

       from future crime or to punish the defendant, and not disproportionate to

       the seriousness of the defendant’s conduct or the danger the defendant

       poses, the Court further finds that 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




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       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.

       {¶ 14} It is clear from the foregoing language that the trial court complied with the

three-part analysis that is applicable under R.C. 2929.14(C)(4). Indeed, Waxler does not

dispute that the court made all of the requisite findings. Nonetheless, Waxler argues that

the trial court’s findings under R.C. 2929.14(C)(4)(b) are not supported by the record in

this case. More specifically, Waxler contends that the harm caused by his criminal

conduct was “neither great nor unusual.” Waxler cites three decisions from the Second

Appellate District in support of his argument. See State v. Overholster, 2d Dist. Clark

No. 2014-CA-42, 2015-Ohio-1980, ¶ 32 (reversing trial court’s imposition of consecutive

sentences where the record was devoid of any evidence to support the court’s finding that

the harm caused by the defendant’s criminal sexual acts with an eleven-year-old was

greater than the harm generally associated with such conduct); State v. Nichols, 2d Dist.

Clark No. 2012 CA 38, 2013-Ohio-3285, ¶ 16 (finding that the trial court had no

authority to order the defendant to serve consecutive sentences under R.C.

2929.14(C)(4)(b) because touching a first or second grade girl on her butt or pubic area

while working as a janitor at an elementary school did not constitute the most serious

form of the offense of gross sexual imposition); State v. Adams, 2d Dist. Clark No. 2014-

CA-13, 2015-Ohio-1160, ¶ 30 (stating that consecutive sentences totaling 20 years for

three counts of burglary and one count of heroin possession were not supported by the




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record where the burglaries involved theft offenses and were not violent, and the

defendant was a “22-year-old non-psychopathic [heroin] addict, with only a previous

juvenile suspended DYS commitment and no adult felony record”).

      {¶ 15} At resentencing in this case, the trial court considered the following factual

background relating to Waxler’s convictions:

             In count one, an ATF agent and a [confidential informant] arranged

      to purchase one-eighth ounce of crack cocaine from you and you advised

      the agent that you had a bag of crack packaged with $20 rocks ready for

      sale for $300. * * * On [April 10, 2010,] an agent and a [confidential

      informant] arranged to purchase an eighth of an ounce of crack cocaine and

      you met with them again at the corner of Crittenden and Maumee within

      1,000 feet of an elementary school and sold 6.49 grams of crack cocaine for

      $300. On [April 22, 2010], after arranging to sell a half an ounce of crack

      cocaine to the agent and the [confidential informant] for $600 you sold

      12.04 grams of crack cocaine. * * * On [May 4, 2010], the agent and the

      [confidential informant] attempted to arrange – arranged to purchase a half

      an ounce of crack and a firearm from you. You told them that you could

      only get a firearm and would sell it for $450. You met with the agent * * *

      and sold the agent a Smith & Wesson .357 revolver. The weapon had been

      reported stolen. On [May 20, 2010], you sold the agent 27.39 grams of

      crack cocaine and a .22 caliber Derringer handgun on Miller and Curtis,




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       within 1,000 feet of Libbey High School. On [May 27, 2010], you met the

       agent at the Park Terrace apartments on Hidden Valley Drive and sold

       13.73 grams of crack cocaine and an AK47 for $1,700. That weapon had

       been reported stolen, and that also took place within 1,000 feet of Rogers

       High School.

Based upon the foregoing facts, the trial court found that Waxler was involved in a course

of conduct concerning the sale of guns and drugs to an undercover agent. The court

rejected Waxler’s attempt to downplay the harm caused by his conduct based upon the

fact that the crimes involved sales to law enforcement, finding that Waxler’s intention

was to provide guns and drugs to people in the community.

       {¶ 16} Upon review, we find that this case is distinguishable from those cited by

Waxler. Initially, we note the fact-specific nature inherent in a trial court’s consideration

of whether the harm caused by two or more of the multiple offenses committed by the

defendant was so great or unusual that no single prison term for any of the offenses

adequately reflects the seriousness of the offender’s conduct. Moreover, we agree with

the trial court that the harm stemming from Waxler’s conduct centers on his intention to

distribute drugs and firearms to his community. That his customer turned out to be a

confidential information is irrelevant in this regard. Further, appellant’s conduct was

made more egregious when one considers the proximity of the transactions to area

schools. In sum, we find that the record supports the trial court’s findings under R.C.

2929.14(C)(4).




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       {¶ 17} Accordingly, appellant’s sole assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 18} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Waxler is ordered to pay the costs of this appeal pursuant to

App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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