[Cite as State v. Mayweather, 2018-Ohio-1686.]
                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :   JUDGES:
                                                 :   Hon. John W. Wise, P.J.
        Plaintiff - Appellee                     :   Hon. W. Scott Gwin, J.
                                                 :   Hon. Craig R. Baldwin, J.
-vs-                                             :
                                                 :
JEREZ S. MAYWEATHER                              :   Case No. 17-CA-84
                                                 :
        Defendant - Appellant                    :   OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     2017 CR 00134




JUDGMENT:                                            Affirmed in part, Reversed and
                                                     Remanded in part



DATE OF JUDGMENT:                                    April 27, 2018



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL BENOIT                                        JEREZ MAYWEATHER #A739-326, pro se
Assistant Prosecutor                                 Noble Correctional Institution
Licking County Prosecutor's Office                   15708 McConnelsville Road
20 South Second Street                               Caldwell, Ohio 43724
Newark, Ohio 43055

                                                     Anthony W. Stocco
                                                     Morrow, Gordon & Byrd, Ltd.
                                                     33 West Main Street P.O. Box 4190
                                                     Newark, Ohio 43058-4190
Licking County, Case No. 17-CA-84                                                     2

Baldwin, J.

       {¶1}   Defendant-appellant Jerez S. Mayweather appeals his conviction and

sentence from the Licking County Court of Common Pleas on three counts of trafficking

in heroin. Plaintiff-appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On February 23, 2017, the Licking County Grand Jury indicted appellant on

three counts of trafficking in heroin in violation of R.C. 2925.03(A)(1)(C)(6)(a), felonies of

the fifth degree. At his arraignment on May 30, 2017, appellant entered a plea of not

guilty to the charges.

       {¶3}   A jury trial commenced on October 18, 2017. The following testimony was

adduced at trial.

       {¶4}   Deputy Sheriff Greg Collins testified at trial that he was employed through

the Licking County Sheriff’s Office and was assigned to the Central Drug Enforcement

Task Force, which is known as “CODE”. On December 15, 2016, CODE arranged a

controlled drug buy at the Family Dollar on East Main Street in Newark, Ohio. Deputy

Collins testified that the street name of the person who was the target of the drug buy was

“Capo”. A confidential informant (CI) initiated contact with Capo to set up the buy. Deputy

According to Deputy Collins, he went to the location to conduct surveillance and observed

a dark colored Ford Edge pull into the parking lot and pull off to the side. A black male

wearing all black clothing exited the vehicle and met with the CI. Both the CI and the man

then walked back to the vehicle. Deputy Collins observed the CI lean into the vehicle,

back out, and then close the door. After the CI walked away, the male got back into the

vehicle and drove away. Later the same day, the man was a passenger of a vehicle

involved in a traffic stop. Deputy Collins testified that one of the individuals involved in
Licking County, Case No. 17-CA-84                                                      3

the traffic stop was identified as appellant and that appellant’s clothing matching that of

the man who had met with the CI earlier that day. He could not identify appellant as the

individual at the drug buy. According to Deputy Collins, the driver of the car that was

stopped was female. He testified that this was significant because a female had been

driving the vehicle that was driven to the drug buy. On cross-examination, he agreed that

he did not actually see the drug buy take place.

       {¶5}   The next witness to testify was Detective Kris Kimble of the Licking County

Sheriff’s Office who had been working with CODE since 2009. He testified that on

December 21, 2016, he participated in a controlled drug buy using a CI at the Giant Eagle

parking lot in the Southgate Shopping Center. Detective Kimball, who was conducting

surveillance, testified that he observed a red Kia pull up to the CI, the CI enter the vehicle,

the vehicle drive around that parking lot for approximately one minute, and then the CI

exit the vehicle. On cross-examination, Detective Kimble testified that he did not actually

observe a drug transaction and could not tell who the CI bought the drugs from.

       {¶6}   Detective Sergeant Alan Thomas, an employee of the Licking County

Sheriff’s Office who was assigned to CODE, testified that he participated in three

controlled buys involving a target known as Capo and/or Jerez Mayweather. With respect

to the December 15, 2016 incident, he testified that he was the supervisor for the buy and

was assigned to help with surveillance. He further testified that he “ran” the CI with respect

to the December 21, 2016 buy.

       {¶7}   Detective Thomas testified that, with respect to the December 15, 2016 buy,

he observed a dark colored Ford Edge pull into the Family Dollar parking lot and that the

vehicle was driven by a white female. He, however, did not witness the actual buy.

Detective Thomas further testified that he participated in the third buy, which occurred on
Licking County, Case No. 17-CA-84                                                   4

December 27, 2016, and acted as supervisor and helped out with surveillance. While the

initial target location for the third buy was the Subway lot on Mount Vernon Road, the CI

walked from the lot and the drug buy occurred on the sidewalk in the area a few blocks

from the Subway. He testified that he followed the CI as she walked and saw the CI

approached by a black male, although he could not identify the man. Detective Thomas

testified that he lost sight of the CI and the black male.

       {¶8}   At trial, the CI, the CI, testified that she knew appellant as “Capo” and that

she had been introduced to him by a mutual acquaintance in October of 2016. She

testified that she agreed to work with CODE to have charges for possession of heroin

reduced from a felony of the fifth degree to a misdemeanor. According to the CI, she had

purchased drugs from appellant in the past and had his telephone number. When she

dialed his number, the name “Capo” appeared. With respect to the December 15, 2016

buy, the CI testified that she met with Detective Thomas and called Capo to purchase

drugs. The arrangement was for her to purchase $50.00 of heroin. After appellant, who

had been driven to the location by Detective Todd Green, did not show up, the CI called

him again. She, when asked, testified that she had been searched both before and after

being taken to the location of the buy.

       {¶9}   After the second call was placed, appellant came and the two walked over

to appellant’s vehicle, an SUV driven by a woman, where the CI gave appellant money

and he gave her heroin. The CI testified that she had received the money from CODE

and that after the buy, she went around the corner and met with Detective Green and

gave him the drugs. When asked if there was any doubt in her mind that appellant was

the person who she had given her money to and bought drugs from, the CI testified “No.”

Trial Transcript at 207.
Licking County, Case No. 17-CA-84                                                 5

      {¶10} The CI was next questioned about the December 21, 2016 buy. She

testified that she met with Detective Thomas and called Capo, telling him that she wanted

$50.00 worth of heroin. The CI testified that she saw a red car and that appellant was in

the passenger seat. According to the CI, she got into the back seat of the car and gave

appellant the money and he gave her the drugs. After driving around for a few minutes,

the CI exited the vehicle. The CI then walked to where Detective Thomas was located

and handed him the drugs. She testified that she was searched again.

      {¶11} The CI also testified about the buy on December 27, 2016. She testified that

she called appellant and that they were supposed to meet at Subway, but that appellant

did not want to walk down Mount Vernon Road “because he felt he was a hot

commodity…” Trial Transcript at 216. The CI testified that she ended up walking up

Buckingham Street to Central Street and that the transaction occurred on the street.

According to her, she had continuous contact with appellant. After the two parted, the CI

went back to the Detectives, gave them the drugs, was searched again and filled out a

written statement. She testified that she had no doubt that appellant was the person who

she dealt with on December 27, 2016 to complete the drug buy.

      {¶12} Recordings of the phone calls that the CI made to appellant to arrange the

buys were played for the jury. The CI testified that her voice and appellant’s voice were

on the recordings.

      {¶13} On cross-examination, the CI testified that she performed approximately six

drug buys for CODE over a three month period beginning in December of 2016 and that

more than three were from appellant. She admitted to using heroin after she signed her

confidential informant contract on December 9, 2016 which prohibited her from using
Licking County, Case No. 17-CA-84                                                  6

illegal drugs and to using heroin and other drugs the entire time that she was setting up

appellant. On redirect, the CI testified that she had been clean since February of 2017.

      {¶14} Detective Todd Green of the Newark Police Department testified that he

was assigned to CODE and “ran” the first and third buys. He testified that he was in charge

of the CI for the two buys. According to Detective Green, when he met the CI for the first

time, she “threw the name Capo out.” Trial Transcript at 254. He testified that he had been

watching Capo for two to three months and that he recorded a telephone call between

the CI and Capo. Detective Green testified that he searched the CI’s person and her purse

before the buy on December 15, 2106 and gave her the pre-recorded buy money. The

buy money had been pre-recorded to make sure that they knew the serial numbers of the

money provided to the CI.

      {¶15} Detective Green testified that after the CI made the buy on December 15,

2016, he picked her up and went to a secure location where appellant handed him the

heroin. He testified that he requested to have the Ford Edge that appellant was in stopped

because he wanted a positive ID on Capo. He further testified that he placed the

purchased heroin into evidence and requested that it be tested. Detective Green also

testified about the December 27, 2016 buy. He testified that he searched the CI’s person

and purse, provided her with pre-recorded buy money and fit her with a transmitter. He

testified that he was approximately 100 feet away with binoculars when he observed an

exchange between the CI and appellant. He asked Detective Thomas to pick the CI up.

After Detective Thomas obtained the drugs from the CI, he gave Detective Green the

drugs and the CI was searched. Detective Green placed the drugs into evidence.

      {¶16} On cross-examination, Detective Green admitted that he did not actually

see the transaction occur between the CI and appellant on December 15, 2016. With
Licking County, Case No. 17-CA-84                                                    7

respect to the December 27, 2016 buy, he admitted that he lost eye contact with the CI

while following appellant but testified that Detective Thomas did not.

       {¶17} There was testimony at trial regarding the chain of custody with respect to

the heroin. At trial, Jennifer Acurio, a Bureau of Criminal Investigation forensic scientist,

testified that she tested substances purported to be from the three drug buys. She testified

that all contained heroin, a Schedule I drug.

       {¶18} At the conclusion of the evidence and the end of deliberations, the jury, on

October 19, 2017, found appellant guilty of all three charges. As memorialized in a

Judgment Entry filed on October 19, 2017, appellant was sentenced to one year on each

count. The trial court ordered that the sentences run consecutively, for an aggregate

prison sentence of three years.

       {¶19} Appellant filed a timely notice of appeal.

       {¶20} Appellate counsel for appellant has filed a Motion to Withdraw and a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

indicating the within appeal is wholly frivolous. Counsel for appellant has raised the

following potential assignment of error:

       {¶21} THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES

WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW.

       {¶22} Appellant was given an opportunity to file a brief raising additional

assignments of error. Appellant, in his brief, raises the following assignments of error;

       {¶23} I. JEREZ MAYWEATHER’S CONVICTIONS WERE NOT SUPPORTED

BY SUFFICIENT EVIDENCE IN VIOLATION OF MR. MAYWEATHER’S RIGHT TO DUE

PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
Licking County, Case No. 17-CA-84                                                      8

UNITED STATES CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION.

       {¶24} II. JEREZ MAYWEATHER’S CONVICTIONS WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF MR. MAYWEATHER’S

RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION 10,

ARTICLE 1 OF THE OHIO CONSTITUTION.

       {¶25} III.   JEREZ     MAYWEATHER WAS              DENIED     DUE     PROCESS       BY

PROSECUTORIAL MISCONDUCT WHEN THE PROSECUTOR SUPPRESSED

EXCULPATORY IMPEACHING EVIDENCE, FURTHER, JEREZ MAYWEATHER WAS

DENIED THE EFFECTIVE ASSISTANCE OF DEFENSE COUNSEL WHEN HE FAILED

TO REQUEST A RECESS OR CONTINUANCE TO REVIEW THE SUPPRESSED

EVIDECE (SIC).

       {¶26} IV. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

SENTENCES.

       {¶27} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant's counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with

a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise

any matters that the client chooses. Id. Once the defendant's counsel satisfies these

requirements, the appellate court must fully examine the proceedings below to determine

if any arguably meritorious issues exist. If the appellate court also determines that the
Licking County, Case No. 17-CA-84                                                    9

appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the

appeal without violating constitutional requirements, or may proceed to a decision on the

merits if state law so requires. Id.

       {¶28} Counsel in this matter has followed the procedure in Anders, supra.

       {¶29} We now will address the merits of the potential assignments of error.

                      APPELLANT’S PRO SE ASSIGNMENTS OF ERROR

                                                I, II

       {¶30} Appellant, in his first two potential assignments of error, argues that his

convictions for trafficking in heroin were against the manifest weight and sufficiency of the

evidence.

       {¶31} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held as follows:

              An appellate court's function when reviewing the sufficiency of the

       evidence to support a criminal conviction is to examine the evidence

       admitted at trial to determine whether such evidence, if believed, would

       convince the average mind of the defendant's guilt beyond a reasonable

       doubt. The relevant inquiry is whether, after viewing the evidence in a light

       most favorable to the prosecution, any rational trier of fact could have found

       the essential elements of the crime proven beyond a reasonable doubt.
Licking County, Case No. 17-CA-84                                                          10

       {¶32} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶33} Appellant, in the case sub judice, was convicted of three counts of trafficking

in heroin in violation of R.C. 2925.03(A)(1)(C)(6)(a). Such section states as follows:

       {¶34} (A) No person shall knowingly do any of the following:

       {¶35} (1) Sell or offer to sell a controlled substance or a controlled substance

analog;…

       {¶36} (C) Whoever violates division (A) of this section is guilty of one of the

following:…

       {¶37} (6) If the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A) of this section

is guilty of trafficking in heroin. The penalty for the offense shall be determined as follows:

       {¶38} (a) Except as otherwise provided in division (C)(6)(b), (c), (d), (e), (f), or (g)

of this section, trafficking in heroin is a felony of the fifth degree, and division (B) of section

2929.13 of the Revised Code applies in determining whether to impose a prison term on

the offender.
Licking County, Case No. 17-CA-84                                                     11

       {¶39} We find that, viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

of trafficking in heroin proven beyond a reasonable doubt with respect to the three counts.

There was testimony that the CI provided the Detectives with appellant’s telephone

number and called appellant to arrange to purchase heroin from appellant on the three

dates. Before the CI was sent out to meet with appellant, she was searched and provided

with pre-recorded money.       She was searched again after each controlled buy. With

respect to the December 27, 2016 incident, Detective Green testified that he observed an

exchange between The CI and appellant. In all of the cases, the CI identified appellant

as the one who she bought drugs from and she provided the drugs that she had

purchased from appellant to one of the officers. There was testimony as to the chain of

custody and that all of the substances purchased testified positive for heroin.

       {¶40} We further find that the jury did not lose its way in convicting appellant. While

there may have been inconsistencies in the testimony of the CI, the jury, as trier of fact,

was in the best position to assess her credibility. As noted by appellee during closing

arguments, “as much inconsistences as the confidential informant had, there’s also

significant amount of consistencies throughout the entirety of the testimony and the

evidence.” Trial Transcript at 349.

       {¶41} Appellant’s first and second assignments of error are, therefore, overruled.

                                                 III

       {¶42} Appellant, in his third potential assignment of error, contends that he was

denied due process of law “by prosecutorial misconduct when the prosecutor suppressed

exculpatory impeaching evidence.” He further argues that he was denied the effective
Licking County, Case No. 17-CA-84                                                      12

assistance of trial counsel when his counsel failed to request a recess or continuance to

review such evidence.

       {¶43} Appellant, in his brief, notes that the CI testified that she made more than

the three controlled buys from appellant and that she was told by a woman at the

Prosecutor’s Office that “something happened with the – with the testing of the dope, the

drugs.” Trial Transcript at 240. Appellant argues that this was exculpatory impeaching

evidence that should have been disclosed by appellee and that his trial counsel was

ineffective in failing to seek a recess or continuance to review such evidence.

       {¶44} In Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

the United States Supreme Court established that the prosecution's failure to disclose

evidence favorable to the accused upon request constitutes a violation of the Fourteenth

Amendment's due process guarantee of a fair trial when “the evidence is material either

to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.

at 87. See also, State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988). In addition

to the Brady standard set forth by the United States Supreme Court, Crim.R. 16 governs

the discovery process. Crim.R. 16(B)(5) requires that a prosecuting attorney disclose

“[a]ny evidence favorable to the defendant and material to guilt or punishment.” Brady,

supra, requires the disclosure only of “material” evidence, and evidence is “material” only

if there is “a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different. Johnston, supra, at paragraph five

of the syllabus, following United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87

L.Ed.2d 481 (1985).

       {¶45} In the case sub judice, we fail to find that the CI’s vague statements as to

other controlled drug buys from appellant were exculpatory or material with respect to the
Licking County, Case No. 17-CA-84                                                       13

three controlled buys that were at issue in this case. We cannot say that the Prosecutor

committed any misconduct or that trial counsel was ineffective.

       {¶46} Appellant’s third potential assignment of error is, therefore, overruled.



                              IV, Counsel’s sole assignment of error

       {¶47} Appellant, in his fourth potential assignment of error, maintains that the trial

court erred in imposing consecutive sentences pursuant to R.C. 2929.14(C)(4). We note

that appellant’s counsel, in his brief, also raises as a potential assignment of error the trial

court’s imposition of consecutive sentences.

       {¶48} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences.

Appellant was sentenced to one year on each count. The trial court ordered that the

sentences run consecutively, for an aggregate prison sentence of three years.

       {¶49} 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.

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

       {¶51} 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
Licking County, Case No. 17-CA-84                                                      14

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:

       {¶52} (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.

       {¶53} (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.

       {¶54} (c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

       {¶55} Thus, in order for a trial court to impose consecutive sentences the court

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

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender's conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

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

while 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 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 would adequately reflect the
Licking County, Case No. 17-CA-84                                                    15

seriousness of the offender's conduct; or (c) the offender's criminal history demonstrates

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

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, 2013

WL 2152488, ¶ 36.

        {¶56} Recently, in Bonnell, supra, 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. 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.

        {¶57} 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. 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.

        {¶58} The trial court, in the case sub judice, stated on the record in sentencing

appellant to consecutive sentences:

        {¶59} Well, Mr. Mayweather, the Court’s considered the purposes and principles

of sentencing set out under Section 2929.11, as well as the seriousness and recidivism
Licking County, Case No. 17-CA-84                                                    16

factors set out under Section 2929.12. The purposes and principles of sentencing require

the Court to consider punishment, deterrence, rehabilitation, and as the prosecutor set

out, you come here from the State of Illinois to sell Heroin in some town in Ohio that can’t

even matter to you, and you’ve been involved in an organized criminal enterprise to do

this. You’re not that old. You’re 33. You’ve been to prison before. I don’t see any

redeeming quality here whatsoever.

        On that basis, I’ll impose terms of one year in the state penitentiary on each of the

three counts and I’ll order they run consecutively with each other for a three-year prison

term.

        {¶60} Transcript at 390-391.

        {¶61} In its October 19, 2017 Judgment Entry, the trial court stated, in relevant

part, as follows:

        {¶62} It is, therefore, ordered that the Defendant serve a stated prison term of one

(1) year on Count 1, one (1) year on Count 2, and one (1) year on Count 3 at the Orient

Reception Center. Counts 1, 2 and 3 are ordered to run consecutively.

        {¶63} The Court has decided that the offender shall serve the prison terms

consecutively, pursuant to R.C. 2929.14(C)(4), because the Court finds that the

consecutive sentences are 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 the Court

also finds the following.

        {¶64} The offender committed one or more of the multiple offenses as part

organized criminal activity; and the offender’s history of criminal conduct demonstrates
Licking County, Case No. 17-CA-84                                                  17

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

offender.

      {¶65} While the trial court made the necessary findings in its Judgment Entry, we

find that the trial court did not make the findings required by R.C. 2929.14(C)(4) at the

sentencing hearing.

      {¶66} Appellant’s fourth potential assignment of error is, therefore, sustained.

      {¶67} For the above reason, after independently reviewing the record, we reverse

the judgment of the Licking County Court of Common Pleas in part and remand this

matter to the trial court for the limited purpose of resentencing. The request to withdraw

as counsel for appellant is DENIED.

By: Baldwin, J.

John Wise, P.J. and

Gwin, J. concur.
