[Cite as State v. Boswell, 2019-Ohio-2949.]




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


State of Ohio                                           Court of Appeals No. E-18-053

        Appellee                                        Trial Court No. 2017-CR-037

v.

William Boswell                                         DECISION AND JUDGMENT

        Appellant                                       Decided: July 19, 2019

                                                 *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Danielle C. Kulik and Kenneth R. Bailey, for appellant.

                                                 *****

        ZMUDA, J.
                                              I. Introduction

        {¶ 1} Appellant, William Boswell, appeals the judgment of the Erie County Court

of Common Pleas, sentencing him to 34 months in prison after he entered a guilty plea to

two counts of theft from a person in a protected class. Finding no error in the

proceedings below, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} On January 10, 2017, a 23-count indictment was filed with the trial court,

charging appellant with eight counts of theft from a person in a protected class in

violation of R.C. 2913.02(A)(3) and (B)(3), felonies of the fourth degree, five counts of

theft from a person in a protected class in violation of R.C. 2913.02(A)(3) and (B)(3),

felonies of the third degree, two counts of attempted theft from a person in a protected

class in violation of R.C. 2923.02 and 2913.02(A)(3) and (B)(3), felonies of the fifth

degree, five counts of theft from a person in a protected class in violation of R.C.

2913.02(A)(2) and (B)(3), felonies of the third degree, two counts of theft from a person

in a protected class in violation of R.C. 2913.02(A)(2) and (B)(3), felonies of the fourth

degree, and one count of engaging in a pattern of corrupt activity in violation of R.C.

2923.32(A)(1) and (B)(1), a felony of the first degree.

       {¶ 3} The foregoing indictment related to a scheme carried out by appellant from

July 2016 through September 2016, in which appellant defrauded 13 elderly victims of

over $60,000 by offering to provide asphalt at a reduced price, performing the work in a

substandard manner, and then dramatically increasing the price at the time of completion.

       {¶ 4} On July 31, 2017, appellant appeared before the trial court for arraignment.

Appellant entered a plea of not guilty, and the matter proceeded through pretrial

discovery and plea negotiations. As a result of successful plea negotiations, appellant

agreed to plead guilty to two counts of theft from a person in a protected class in

violation of R.C. 2913.02(A)(3) and (B)(3), felonies of the fourth degree. In exchange




2.
for his guilty plea, and in an effort to facilitate appellant’s payment of restitution to the

victims in this case, the state agreed to dismiss the remaining charges and recommend

five years of community control, with a 36-month prison sentence to be reserved and

applied in the event that appellant violated the terms of his community control. At a

subsequent plea hearing held on May 18, 2018, the foregoing plea agreement was

discussed and the trial court accepted appellant’s guilty plea following a Crim.R. 11

colloquy. The matter was continued for sentencing and the trial court ordered a

presentence investigation report.

       {¶ 5} Appellant’s sentencing hearing was held on August 23, 2018. At the start of

the hearing, the trial court reiterated the terms of appellant’s plea agreement. The court

then indicated its consideration of the purpose and principles of sentencing, as well as its

examination of the impact statements provided by the victims, and informed appellant of

his rights to appeal under Crim.R. 32. Thereafter, the trial court explained appellant’s

postrelease control obligations, and turned to the issue of mitigation.

       {¶ 6} Both appellant and his counsel addressed the trial court in mitigation.

Appellant’s counsel focused his statement on the fact that appellant had been compliant

with the court’s orders and had demonstrated good faith by bringing a $22,000 check to

sentencing to begin making restitution to the victims. Appellant addressed the court

personally and explained that he was intent upon paying back the victims. Appellant

stressed that he meant to do the victims no harm, and stated that he “didn’t think [he] was

doing [anything] wrong.” For its part, the state asked the trial court to follow the




3.
recommended sentence of community control in an effort to achieve the “primary goal”

of making the elderly victims financially whole.

       {¶ 7} After receiving statements in mitigation, the trial court again referenced the

principles and purposes of sentencing under R.C. 2929.11, as well as the seriousness and

recidivism factors under R.C. 2929.12. The court informed appellant that it had

“thoroughly” considered the presentence investigation report. According to the report,

appellant was previously convicted of a number of offenses, including home

improvement fraud in 2003. As to this offense, the court noted that the victims in this

case were particularly vulnerable as a product of their advanced age and health

conditions.

       {¶ 8} According to the trial court, the victims reported in their impact statements

that they were coerced, targeted, intimidated, and harassed by appellant. One such victim

reported that although she was quoted a fee of $400 to perform certain services, appellant

demanded that she pay $7,000 for the work once it was completed. Because appellant

had frightened her, the victim wrote him a postdated check, which she later cancelled.

When appellant was notified of the cancelled check, he returned to the victim’s home

“with a look of utter rage on his face.” According to the trial court, the victim reported

that she was so frightened by appellant’s actions that she has not been able to get a full

night of sleep.

       {¶ 9} Based upon the conduct detailed in the presentence investigation report, the

trial court found no credibility in defense counsel’s statement that appellant was “just




4.
trying to provide for [his] family” or appellant’s statement that he did not think he was

doing anything wrong. Addressing appellant, the trial court stated: “You knew what you

were doing. You’re saying you’re remorseful. Those actions don’t show it.”

       {¶ 10} Thereafter, the trial court noted that appellant had two bond violations

during the pendency of this matter, a failure to check-in on March 20, 2018, and a late

check-in on May 15, 2018. The court also found that appellant had committed the

offenses in this case as part of an organized criminal activity based upon the fact that the

criminal activity took place over a two-month period, involved multiple victims, and was

perpetrated by appellant and two co-defendants. Because of the bond violations and the

organized criminal activity, the trial court found that it had the discretion to impose a

prison term under R.C. 2929.13(B)(1)(b)(iii) and (ix).

       {¶ 11} In applying the seriousness and recidivism factors under R.C. 2929.12, the

trial court found three factors under R.C. 2929.12(B) applicable and demonstrative of the

fact that appellant’s conduct was more serious than conduct normally constituting the

offense. First, the court stated that the injuries suffered by the victims were exacerbated

because of the physical and mental condition of the victims as well as their ages. Second,

the trial court found that the victims suffered serious physical, psychological, and

economic harm as a result of appellant’s conduct. Third, the court reiterated its

determination that appellant committed the offense as a part of an organized criminal

activity.




5.
       {¶ 12} Moving forward with its analysis of the seriousness and recidivism factors,

the trial court found the factors under R.C. 2929.12(C), indicating that the offender’s

conduct is less serious than conduct normally constituting the offense, to be inapplicable

in this case. The court then looked to appellant’s prior criminal record and concluded

that “some factors for recidivism” were applicable under R.C. 2929.12(D) and (E).

       {¶ 13} As a result of its R.C. 2929.12 analysis, the trial court determined that a

prison sentence was necessary to accomplish the principles and purposes of sentencing.

Addressing appellant, the court stated:

              You agreed to the maximum sentence, 18 months on each count to

       run consecutive. And that’s consecutive under 2929.14(C)(4), Necessary to

       protect the public from future crimes by you and punish you, not

       disproportionate to the seriousness of the count of the count (sic) of the

       danger you pose. And that, the harm caused by two or more multiple

       offenses committed was so great or unusual that no single prison term for

       any of those offense[s] adequately reflects the seriousness of [the] conduct.

       And also you have a history of criminal conduct. * * * The Court is going

       to go along with the 18 and 18 consecutive for 36 months.

       {¶ 14} Thereafter, appellant’s counsel reminded the court that the parties were

recommending a reserved 36-month prison sentence, to be applicable only in the event of

a community control violation. In response, the trial court revised appellant’s prison

sentence, ordering appellant to serve 17 months as to each offense, to be served




6.
consecutively for a total of 34 months. In addition, the trial court ordered appellant to

make restitution in the agreed amount of $61,660. Appellant timely appealed.

                                B. Assignments of Error

       {¶ 15} On appeal, appellant alleges six errors for our review:

              1. The trial court erred in not ordering community control pursuant

       to R.C. 2929.13(B).

              2. There is a denial of due process when the court considers

       [victims’] impact statements from acquitted charges, ignores the revised

       views of the victims and uses old [victims’] impact statements to form the

       court’s opinion as to sentencing against recommendation of the state, the

       victims, adult probation and the police.

              3. The court erred in using its own factors of recidivism and

       ignoring the statutory factors.

              4. The court erred in sentencing defendant to incarceration when the

       sentence was not reasonably calculated to serve any of the purposes and

       factors of felony sentencing.

              5. The court erred in sentencing defendant to consecutive sentences

       when the sentence is disproportionate to the crime, there is no need to

       protect the public, and the harm caused was purely financial and the victims

       did not feel prison was necessary.




7.
              6. The court erred in having blanket pleading procedures which

       curtail a defendant’s right to plead at any stage of the proceedings.

                                        II. Analysis

       {¶ 16} In his assignments of error, appellant challenges the propriety of the

sentence imposed by the trial court.

       {¶ 17} The review of felony sentences is governed under R.C. 2953.08(G)(2).

Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate

and remand a sentence only if the record demonstrates, clearly and convincingly, 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; or

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

“Clear and convincing evidence is that measure or degree of proof which is more than a

mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is

required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.




8.
      {¶ 18} In his first assignment of error, appellant argues that the trial court erred in

failing to impose community control in lieu of a prison sanction. Specifically, appellant

asserts that a community control sanction was required in this case under R.C.

2929.13(B), which provides, in relevant part:

             (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if

      an offender is convicted of or pleads guilty to a felony of the fourth or fifth

      degree that is not an offense of violence or that is a qualifying assault

      offense, the court shall sentence the offender to a community control

      sanction or combination of community control sanctions if all of the

      following apply:

             (i) The offender previously has not been convicted of or pleaded

      guilty to a felony offense.

             (ii) The most serious charge against the offender at the time of

      sentencing is a felony of the fourth or fifth degree.

             (iii) If the court made a request of the department of rehabilitation

      and correction pursuant to division (B)(1)(c) of this section, the department,

      within the forty-five-day period specified in that division, provided the

      court with the names of, contact information for, and program details of one

      or more community control sanctions that are available for persons

      sentenced by the court.




9.
              (iv) The offender previously has not been convicted of or pleaded

       guilty to a misdemeanor offense of violence that the offender committed

       within two years prior to the offense for which sentence is being imposed.

              (b) The court has discretion to impose a prison term upon an

       offender who is convicted of or pleads guilty to a felony of the fourth or

       fifth degree that is not an offense of violence or that is a qualifying assault

       offense if any of the following apply:

              ***

              (iii) The offender violated a term of the conditions of bond as set by

       the court.

              ***

              (ix) The offender committed the offense for hire or as part of an

       organized criminal activity.

       {¶ 19} According to appellant, he is entitled to the presumption of community

control under R.C. 2929.13(B)(1)(a) because he has no felony criminal record, the most

serious charge against him at the time of sentencing was a felony of the fourth degree,

there is no indication in the record of a lack of community control availability, and he has

not been previously convicted of or pleaded guilty to a misdemeanor of violence. The

state does not challenge the applicability of the community control presumption under

R.C. 2929.13(B)(1)(a). Rather, the state argues that the presumption does not apply here

because the court determined under R.C. 2929.13(B)(1)(b) that appellant violated the




10.
conditions of his bond and committed the offenses for which he was sentenced as part of

an organized criminal activity. While we agree with the state that the presumption of

community control under R.C. 2929.13(B)(1)(a) does not apply here, we reach our

conclusion for a different, and more fundamental, reason.

       {¶ 20} In State v. Bentley, 11th Dist. Ashtabula No. 2017-A-0017, 2017-Ohio-

8943, the Eleventh District examined the language of R.C. 2929.13(B)(1)(a) and

determined that the community control presumption “only applies upon a court’s

sentencing an offender for a single fourth-or fifth-degree felony, not multiple ones.” Id.

at ¶ 19, citing State v. Parrado, 11th Dist. Trumbull No. 2015-T-0069, 2016-Ohio-1313,

¶ 23 and State v. Jones, 11th Dist. Ashtabula No. 2016-A-0017, 2017-Ohio-251, ¶ 55.

Because the defendant in Bentley pleaded guilty to grand theft, a fourth-degree felony, on

the same day as she pled guilty to breaking and entering, a fifth-degree felony, the court

held that R.C. 2929.13(B)(1)(a) was inapplicable. Id. at ¶ 20; see also Jones at ¶ 57

(finding that the community control presumption under R.C. 2929.13(B)(1)(a) is

inapplicable where the defendant pleaded guilty to two felonies of the fourth degree);

State v. Durant, 2016-Ohio-8173, 76 N.E.3d 750, ¶ 9 (7th Dist.) (agreeing with the

Eleventh District’s conclusion that the community control presumption found in R.C.

2929.13 does not apply if the defendant pleaded guilty to or was convicted of multiple

felonies of the fourth or fifth degree).

       {¶ 21} Similarly, in Parrado, the Eleventh District found that R.C.

2929.13(B)(1)(a) was inapplicable where the defendant pleaded guilty to 12 nonviolent




11.
felonies of the fifth degree. Parrado at ¶ 23. In its analysis of the statute in that case, the

court reasoned:

              If the legislature intended the presumption pertaining to community

       control to apply to situations in which an offender was convicted of or

       pleaded guilty to multiple felonies of the fourth or fifth degree, it could

       have pluralized these terms. It did not do so. As such, we construe the

       statute to envelop only those situations in which a qualifying offender has

       been convicted of or pleaded guilty to a singular, nonviolent felony of the

       fourth or fifth degree.

Id.

       {¶ 22} Based on our review of the plain language of R.C. 2929.13(B)(1)(a), we

agree with the Eleventh District that the community control presumption contained

therein applies only where the defendant pleads guilty to a singular nonviolent felony of

the fourth or fifth degree. Because appellant pleaded guilty to two felonies of the fourth

degree in this case, he was not entitled to the presumption of community control. See

State v. Wallace, 11th Dist. Ashtabula No. 2016-A-0008, 2016-Ohio-8515 (finding that

defendant was not entitled to presumption of community control where he was convicted

of three counts of theft from an elderly person, two of which were felonies of the fourth

degree and one of which was a felony of the fifth degree).

       {¶ 23} Even assuming, arguendo, that the presumption of community control

applied in this case, the trial court was permitted to impose a prison sanction after it




12.
found, under R.C. 2929.13(B)(1)(b)(iii) and (ix), that appellant had violated the terms of

his bond and engaged in criminal conduct as part of an organized criminal activity.

       {¶ 24} The term “organized criminal activity” is not defined in R.C. Chapter 2929,

and therefore courts must decide whether an offense is part of an organized criminal

activity on a case-by-case basis. State v. Obregon, 6th Dist. Sandusky No. S-99-042,

2000 Ohio App. LEXIS 3820, *9 (Aug. 25, 2000), citing State v. Shryock, 1st Dist.

Hamilton No. C-961111, 1997 Ohio App. LEXIS 3494 (Aug. 1, 1997) (the offender was

not part of an organized criminal activity when he merely acted as a “look-out” for his

criminal colleague). In examining this term, courts have “generally considered the scope

and length of the criminal activity, whether the offense was committed

spontaneously/impulsively or with extensive planning, the number of people involved,

and the nature of the charges * * *.” State v. Atchison, 2d Dist. Clark No. 2017-CA-76,

2018-Ohio-2419, ¶ 24, citing State v. Orms, 10th Dist. Franklin No. 14-AP-750, 2015-

Ohio-2870; State v. Coran, 2d Dist. Clark No. 2003-CA-80, 2004-Ohio-6874; State v.

Miller, 4th Dist. Washington No. 07CA1, 2008-Ohio-1059; State v. Radcliff, 10th Dist.

Franklin Nos. 97APA08-1054 and 97APA08-1056, 1998 Ohio App. LEXIS 1012

(Mar. 17, 1998).

       {¶ 25} Here, the trial court’s findings under R.C. 2929.13(B)(1)(b) are supported

by the record. As to the court’s bond violation finding under R.C. 2929.13(B)(1)(b)(iii),

the record reveals that appellant violated the terms of bond by failing to report on

March 20, 2018, and reporting late on May 15, 2018.




13.
       {¶ 26} As to the court’s finding that appellant engaged in organized criminal

activity under R.C. 2929.13(B)(1)(b)(ix), the record demonstrates that appellant did not

act alone in committing the theft offenses to which he pled guilty. Rather, appellant

acted in concert with two co-defendants. Further, appellant’s criminal activity was

preplanned, not spontaneous or impulsive. Finally, appellant’s illegal scheme affected

multiple elderly victims who were scammed out of thousands of dollars over a two-

month period. These facts support the trial court’s determination that appellant engaged

in organized criminal activity. See State v. Goldsmith, 6th Dist. Lucas No. L-16-1126,

2017-Ohio-484, ¶ 14 (upholding trial court’s finding that the defendant was participating

in organized criminal activity based upon his “coordinated calculated theft ring”).

       {¶ 27} In light of the foregoing, we find that the trial court did not violate R.C.

2929.13 in imposing a prison sanction in this case. Accordingly, appellant’s first

assignment of error is not well-taken.

       {¶ 28} In appellant’s second assignment of error, he argues that the trial court

erred in considering victim impact statements from victims of the theft offenses that were

dismissed pursuant to the plea agreement he entered into with the state. Further,

appellant asserts that the trial court erred in imposing a prison sanction contrary to the

wishes expressed by the victims in the impact statements.

       {¶ 29} Regarding the trial court’s consideration of the victim impact statements

that were prepared in this case, some of which pertained to victims from offenses that

were dismissed prior to sentencing, Ohio law directs that a sentencing court “is not




14.
confined to [considering] the evidence that strictly relates to the conviction offense

because the court is no longer concerned * * * with the narrow issue of guilt.” State v.

Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.). Indeed,

we have recognized that sentencing courts may consider a broad range of otherwise

inadmissible evidence, including “charges that were reduced or dismissed under a plea

agreement.” State v. Thompson, 6th Dist. Sandusky No. S-11-052, 2013-Ohio-1594,

¶ 42, citing State v. Degens, 6th Dist. Lucas No. L-11-1112, 2012-Ohio-2421, ¶ 19; State

v. Robbins, 6th Dist. Williams No. WM-10-018, 2011-Ohio-4141, ¶ 9; State v. Banks,

10th Dist. Franklin Nos. AP-1065, 10AP-1066, and 10AP-1067, 2011-Ohio-2749, ¶ 24;

State v. Johnson, 7th Dist. Mahoning No. 10 MA 32, 2010-Ohio-6387, ¶ 26. Therefore,

the trial court’s consideration of facts pertaining to the dismissed charges was

permissible.

       {¶ 30} Nonetheless, appellant argues that case law supports his claim that the trial

court’s consideration of the victim impact statements in this case constitutes reversible

error. Appellant cites one case, State v. Patterson, 110 Ohio App.3d 264, 673 N.E.2d

1001 (10th Dist.1996), to support his argument. However, Patterson is no longer good

law in the Tenth District. See State v. Daniel, 10th Dist. Franklin Nos. 05AP-564 and

05AP-683, 2006-Ohio-4627, ¶ 40 (recognizing that Patterson was not consistent with

precedent from the Supreme Court of Ohio and declining to follow its holding).

Moreover, Patterson is distinguishable insofar as it involved a sentencing court’s




15.
consideration of victim impact statements for acquitted charges, not charges that were

dismissed via plea bargain.

       {¶ 31} As to appellant’s contention that the trial court erroneously failed to abide

by the sentencing recommendations of the victims in this case, we note that although the

trial court was required to consider the impact of appellant’s crimes on the victims, the

court was not required to consider or adopt the victims’ sentencing recommendations.

State v. Carter, 8th Dist. Cuyahoga Nos. 98579 and 98580, 2013-Ohio-375, ¶ 18 (“the

governing statute does not make any provision for consideration of the victim’s

sentencing recommendation to the court”). Additionally, the trial court advised appellant

that it was not bound by any sentencing recommendations prior to accepting appellant’s

plea. Appellant had the option to insist upon an agreed-upon sentence if that was his sole

motivation for entering into his plea agreement with the state. In that case, the trial court

would have been bound by the sentence because “once the trial court enters into the plea

agreement by making a promise [to impose a specific sentence], it becomes a party to the

agreement and is bound thereby.” State v. Vari, 7th Dist. Mahoning No. 07-MA-142,

2010-Ohio-1300, ¶ 24.

       {¶ 32} Because the plea agreement in this case included a recommended sentence,

and not an agreed-upon sentence, the trial court was not bound by the terms of the

agreement, and we therefore find no merit to appellant’s argument.

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




16.
       {¶ 34} In his third and fourth assignments of error, appellant challenges the trial

court’s application of the seriousness and recidivism factors under R.C. 2929.12, and the

principles and purposes of sentencing under R.C. 2929.11, respectively, to the facts of

this case.

       {¶ 35} A trial court that sentences a defendant for a felony offense, “shall be

guided by the overriding purposes of felony sentencing: * * * to protect the public from

future crime by the offender and others, to punish the offender, and to promote the

effective rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). When considering the appropriate

sentence, the trial 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.” Id. The sentence must be

reasonably calculated to achieve those purposes “commensurate with and not demeaning

to the seriousness of the offender’s conduct and its impact upon the victim, and consistent

with sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

       {¶ 36} To comply with the principles and purposes of sentencing set forth in R.C.

2929.11, the trial court must consider the seriousness and recidivism factors contained in

R.C. 2929.12. To that end, we have previously explained,

              R.C. 2929.12 is a guidance statute. It sets forth the seriousness and

       recidivism criteria that a trial court “shall consider” in fashioning a felony




17.
       sentence. Subsections (B) and (C) establish the factors indicating whether

       the offender’s conduct is more serious or less serious than conduct

       normally constituting the offense. Subsections (D) and (E) contain the

       factors bearing on whether the offender is likely or not likely to commit

       future crimes. While the phrase “shall consider” is used throughout R.C.

       2929.12, the sentencing court is not obligated to give a detailed explanation

       of how it algebraically applied each seriousness and recidivism factor to the

       offender. Indeed, no specific recitation is required. Merely stating that the

       court considered the statutory factors is enough.

State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11

(6th Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38

and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

       {¶ 37} Here, appellant argues that the trial court erroneously applied R.C. 2929.12

by creating its own factors for recidivism and ignoring the statutory factors.

Additionally, appellant urges that the sentence imposed by the trial court demeaned the

victims by ignoring their sentencing recommendation of restitution and community

control, and was not calculated to achieve the purposes of felony sentencing under R.C.

2929.11 because “financial sanctions would have been the minimum penalty to effectuate

those purposes.”

       {¶ 38} At sentencing, the trial court clearly articulated that it was mindful of the

principle and purposes of sentencing under R.C. 2929.11, and that it had considered the




18.
statutory factors in R.C. 2929.12. Based upon its consideration of the facts in this case,

the court ultimately concluded that “some factors for recidivism” were applicable under

R.C. 2929.12(D) and (E).

       {¶ 39} In its brief to this court, the state notes that R.C. 2929.12 permits the trial

court to consider its own factors for recidivism. Indeed, the statute directs courts to

consider all of the statutory factors as well as “any other relevant factors” that would

indicate that the offender is likely or not likely to commit future crimes. R.C. 2929.12(D)

and (E). While it is not clear from the record that the trial court did, in fact, create its

own recidivism factors as appellant suggests, doing so would not constitute reversible

error in light of the plain language of R.C. 2929.12. Moreover, appellant’s contention

that the trial court ignored the statutory factors under R.C. 2929.12 is simply not

supported by the record, which includes the trial court’s detailed application of the

relevant factors to the facts of this case.

       {¶ 40} As noted above, the trial court’s statement that it considered the sentencing

statutes is sufficient to pass muster under Ohio law. Brimacombe at ¶ 11. Moreover, we

find no merit to appellant’s contention that the victims in this case were demeaned by the

trial court’s sentence. The trial court was not bound by the sentence recommended by the

victims, and the imposition of a harsher sentence than the one recommended can hardly

be described as demeaning. Accordingly, appellant’s third and fourth assignments of

error are not well-taken.




19.
       {¶ 41} In his fifth assignment of error, appellant argues that the trial court erred in

imposing consecutive sentences under R.C. 2929.14(C)(4).

       {¶ 42} Under R.C. 2929.14(C)(4), a trial court is required to make three findings

before imposing consecutive sentences: (1) consecutive sentences are “necessary to

protect the public from future crime or to punish the offender”; (2) imposition of

consecutive sentences is not “disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public”; and (3) one of the factors in

R.C. 2929.14(C)(4)(a)-(c) applies. Relevant here, R.C. 2929.14(C)(4)(b) allows the trial

court to impose consecutive sentences if “[a]t 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.” Further, R.C.

2929.14(C)(4)(c) permits the imposition of consecutive sentences when “[t]he offender’s

history of criminal conduct demonstrates that consecutive sentences are necessary to

protect the public from future crime by the offender.”

       {¶ 43} A sentencing court must make its findings under R.C. 2929.14(C)(4) at the

sentencing hearing and incorporate them into the sentencing entry. State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The trial court is not required

to state the reasons behind its findings related to consecutive sentences, however. Id.

Thus, the trial court’s “mere regurgitation” of the statute is sufficient to support the




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imposition of consecutive sentences. State v. Braswell, 6th Dist. Lucas No. L-16-1197,

2018-Ohio-3208, ¶ 40, citing State v. Ault, 6th Dist. Ottawa No. OT-13-037, 2015-Ohio-

556, ¶ 12.

       {¶ 44} At the sentencing hearing, the trial court ordered appellant’s sentences

served consecutively, and then made the necessary findings to support the consecutive

sentences under R.C. 2929.14(C)(4)(b) and (c). Specifically, the trial court found that

consecutive sentences were

       [n]ecessary to protect the public from future crimes by you and punish you,

       not disproportionate to the seriousness of the count of the count (sic) of the

       danger you pose. * * * [T]he harm caused by two or more multiple offenses

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

       those offense[s] adequately reflects the seriousness of [the] conduct. And

       also you have a history of criminal conduct.

       {¶ 45} In its sentencing entry, the trial court indicated that it “considered, weighed

and made findings for sentencing of either a Concurrent and/or Consecutive sentence

* * *.” Further, the entry contains the trial court’s finding that consecutive sentences “are

applicable based on the factors in O.R.C. 2929.14(C)(4)(a)-(c) * * *.”

       {¶ 46} In his brief, appellant argues that the record does not support the trial

court’s findings. Appellant reasserts his prior argument challenging the trial court’s

finding that he carried out his offenses as part of an organized criminal activity. Having




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already rejected this argument based upon our review of the facts contained in the record,

we find no merit to appellant’s argument here.

        {¶ 47} Additionally, appellant contends that the trial court, in imposing

consecutive sentences, “overtly ignore[d]” the sentencing recommendations from the

victims and other interested parties. We fail to see how the trial court’s departure from

the sentencing recommendations, which are not binding on the court, impacts our

consecutive sentence analysis in this case.

        {¶ 48} Finally, appellant argues that his clean criminal record does not support the

trial court’s finding under R.C. 2929.14(C)(4)(c). Notably, appellant’s argument ignores

his 2003 conviction for home improvement fraud, which is relevant in this case given its

similarity to the present convictions, which involved further efforts to defraud elderly

victims by promising to perform home improvement services. Further, “[o]nly one [of

the R.C. 2929.14(C)(4)(a)-(c) factors] need to be supported by the record in order to

affirm.” State v. Jones, 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145, ¶ 8.

Therefore, “the findings under R.C. 2929.14(C)(4)(b), alone, support imposition of

consecutive sentences.” State v. Bray, 2d Dist. Clark No. 2016-CA-22, 2017-Ohio-118,

¶ 31.

        {¶ 49} In light of the foregoing, it is clear that the trial court made the requisite

findings to support the imposition of consecutive sentences under R.C. 2929.14(C)(4).

Accordingly, appellant’s fifth assignment of error is not well-taken.




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       {¶ 50} In his sixth and final assignment of error, appellant contends that the trial

court abused its discretion by enforcing its blanket policy of accepting pleas “no later

than 3:00 p.m. on the Friday that precedes the jury trial date.”

       {¶ 51} Relevant to appellant’s argument, several Ohio courts have determined that

a trial court abuses its discretion when it rejects a plea agreement by relying on a blanket

policy rather than considering the facts and circumstances of the particular case. State v.

Switzer, 8th Dist. Cuyahoga No. 93533, 2010-Ohio-2473, ¶ 15 (reversing trial court’s

refusal to accept a plea agreement based on its “unvaried policy of not accepting plea

agreements on the day of trial”); State v. Raymond, 10th Dist. Franklin No. 05AP-1043,

2006-Ohio-3259, ¶ 15; State v. Graves, 10th Dist. Franklin No. 98AP-272, 1998 Ohio

App. LEXIS 5608 (Nov. 19, 1998) (finding an abuse of discretion after trial court refused

the defendant’s plea based upon its blanket policy of not accepting no contest pleas);

State v. Hunt, 4th Dist. Scioto No. 1536, 1985 Ohio App. LEXIS 8937 (Oct. 22, 1985)

(finding abuse of discretion when the trial court refused to accept a plea agreement

because it had a policy of rejecting agreements after jury cards were mailed to

prospective jurors in a case).

       {¶ 52} In this case, the trial court did not reject appellant’s plea agreement.

Moreover, appellant did not object to the trial court’s plea policy. The failure to raise this

issue waives all but plain error on appeal. Crim.R. 52(B). An alleged error does not

constitute plain error unless it is obvious and, but for such error, the outcome of the




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proceeding clearly would have been different. State v. Murphy, 91 Ohio St.3d 516, 532,

747 N.E.2d 765 (2001).

       {¶ 53} At a pretrial held on January 22, 2018, an exchange between the state,

defense counsel, and the trial court took place with respect to scheduling a trial date.

Defense counsel informed the court that appellant was striving for a resolution of the case

short of a trial, to which the court eventually responded:

              Okay. Well, I’ll get a report. As far as the jury trial goes, Court is

       going to find that, today that no plea was entered in this case today. This is

       January 22, 2018. The final plea date of February 12, 2018 at 11:00 a.m.

       shall remain. The jury trial date of February 27, 2018 at 10:00 shall

       remain. All parties shall be ready to proceed on those dates unless

       otherwise ordered by this Court pursuant to a judgment entry.

              Should the Defendant choose to enter a plea in this case prior to the

       jury trial date, the defense attorney shall immediately notify this Court and

       present the Defendant before this Court for that plea. In such situations the

       plea must be entered no later than 3:00 p.m. on the Friday that precedes the

       jury trial date.

              If it does, after 3:00, the Court calls in the jury, and therefore,

       wouldn’t entertain anything but a plea to the indictment.




24.
       {¶ 54} At a pretrial held on February 12, 2018, the trial court echoed its policy of

accepting a plea only up to the Friday that precedes the jury trial date. The court went on

to explain:

              Mr. Boswell, although this is your last hearing before we have the

       jury called and then try the case, the Court allows up until that Friday that

       precedes the trial date in order to enter a plea. So we won’t set nothing.

       But if things are worked out, your counsel knows how to get ahold of the

       Court as well as the State does and then we can have – we won’t set

       nothing, but you can be presented and take care of the plea. I’m not saying

       you have to plea. That’s just to let you know how we handle this.

       {¶ 55} Two days after the pretrial, appellant filed a motion to continue the trial

date based, in part, on “active pre-trial negotiations towards a plea resolution.” The court

granted appellant’s motion, and rescheduled the trial date for May 22, 2018, a Tuesday.

Appellant entered his guilty plea on May 18, 2018, the Friday preceding the trial date.

       {¶ 56} In his brief, appellant fails to identify what impact, if any, the trial court’s

plea policy had on this case. Rather, appellant simply states that the trial court abused its

discretion by enforcing its plea policy. The transcript from the May 18, 2018 plea

hearing reveals no indication that appellant wished to have more time for plea

negotiations or was in any way rushed into entering his plea. Appellant did not seek

more time to conduct plea negotiations following the three-month continuance granted by

the court upon appellant’s request.




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       {¶ 57} Having failed to demonstrate that the trial court’s plea policy affected the

outcome of these proceedings, appellant has not established plain error. Accordingly,

appellant’s sixth assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 58} In light of the foregoing, the judgment of the Erie County Court of

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

to App.R. 24. Appellant’s motion for bond pending appeal is denied as moot.


                                                                        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.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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