[Cite as State v. Goad, 2019-Ohio-3957.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                           STATE OF OHIO,

                                           Plaintiff-Appellee,

                                                   v.

                                           RALPH M. GOAD,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                           Case No. 18 MA 0089


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 16 CR 631

                                          BEFORE:
                   Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.


                                              JUDGMENT:
                                                Affirmed.


 Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Plaintiff-Appellee

 Atty. Rhonda G. Santha, 6401 State Route 534, West Farmington, Ohio 44491, for
 Defendant-Appellant.
                                                                                        –2–


                               Dated: September 18, 2019


 WAITE, P.J.

       {¶1}   Appellant Ralph M. Goad appeals the August 7, 2018, Mahoning County

Common Pleas Court judgment entry sentencing him to a prison term of 15 years on

multiple counts of burglary, breaking and entering, and a single count of attempted

burglary. This appeal stems from Appellant’s resentencing after we issued a limited

remand following Appellant’s original appeal, concluding the trial court had not made

findings required by R.C. 2929.14(C)(4). State v. Goad, 7th Dist. Mahoning No. 17 MA

0051, 2018-Ohio-1338. Based on the following, when resentencing Appellant the trial

court did consider the required statutory factors enumerated in R.C. 2929.14(C)(4) before

imposing consecutive sentences. Appellant’s assignment of error is without merit and is

overruled. The judgment of the trial court is affirmed.

                             Factual and Procedural History

       {¶2}   The record is sparse regarding the underlying facts of the offenses for which

Appellant was convicted. However, at the outset of the resentencing hearing the state

discussed the indictment in this matter:


       Your Honor, this was sent back from the Seventh District for resentencing

       finding that [the trial court] did not make the consecutive sentence findings.

       So I guess they needed some clarity. 2929.14 the State would proffer, Your

       Honor, that consecutive sentences in this case are necessary to protect the

       public, punish the offender, would not be disproportionate.        There are

       multiple crimes involved here.




Case No. 18 MA 0089
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      If I may, in Count One there was a breaking and entering of the Pink

      Elephant May 22 of ’16.


      Count Two, breaking entering on Club Pandora, May 24, 2016.


      Count Three, breaking and entering Sam’s Wedge Inn, May 26, of ’16.


      Count Four, burglary 8726 Youngstown-Salem Road in April.


      Burglary at 3591 Leffingwell in March of ’16.


      Count Six, burglary at 4839 South Raccoon Road in April of ’16.


      Count Seven, 4892 Canfield Road in March of ’16.


      Count Eight was a B&E at the Town and Country, 3/28/16.


      Count Nine, a subsequent Town and Country B&E in May of 2016.


      Count Ten, B&E at Millstone Farm and Garden, May of 2016.


      Count Eleven was the attempted burglary of 1142 Market Street/West

      Middletown Road, May of 2016.


      Count Twelve, 3759 East South Range Road, May of 2016.


      And, lastly, burglary at 5701 South Range Road, May of 2016.


      So there, Your Honor, we have 13 counts. We have 12 sets of victims. One

      victim was actually victimized twice.


Case No. 18 MA 0089
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(8/1/18 Tr., pp. 3-5.)

       {¶3}    The state also reviewed Appellant’s criminal history at the resentencing

hearing:


       Lastly, Your Honor, the defendant’s criminal record, as I am sure the court

       is aware, stems from 1985 to 2010. It all stems from Cuyahoga County,

       and I am just talking felonies here. I am counting 14 separate felony cases

       all of which include victims. We have breaking and enterings, burglaries,

       receiving stolen property and the like. I don’t see one time where he was

       sentenced to more than -- he got four years in 2010.


(8/1/18 Tr., p. 5.)

       {¶4}    On June 9, 2016, Appellant was indicted in this matter. Counts one, two,

and three involved breaking and entering in violation of R.C. 2911.13(A), (C). All are

felonies of the fifth degree. Counts four, five, six, and seven charged burglary in violation

of R.C. 2912(A)(2), (D); felonies of the second degree. Counts eight, nine, and ten

charged breaking and entering in violation of R.C. 2911.13(A), (C); felonies of the fifth

degree. Count eleven was for attempted burglary in violation of R.C. 2911.12(A)(2), (D)

and R.C. 2923.02; a felony of the third degree, and counts twelve and thirteen charged

burglary in violation of R.C. 2911.12(A)(2), (D); felonies of the second degree.

       {¶5}    Appellant entered into a Crim.R. 11 plea agreement with the state.

Pursuant to plea negotiations, the state amended all of the burglary counts (counts 4-7;

12, 13) from second degree felonies to third degree felonies. Appellant agreed to plead

guilty to the charges as amended. The state agreed to recommend a sentence of fifteen




Case No. 18 MA 0089
                                                                                       –5–


years of imprisonment but agreed that Appellant was free to argue for a lesser sentence.

On January 5, 2017, the trial court held a plea hearing. After entering into a Crim.R. 11

colloquy with Appellant, the court accepted his guilty plea. The state recommended a

fifteen-year term of incarceration. Appellant did not object to this recommendation.

       {¶6}   On March 1, 2017, the trial court held the original sentencing hearing. The

state reiterated its recommendation for a prison sentence of fifteen years. Appellant’s

counsel argued for a term of five to seven years. The trial court accepted the state’s

recommendation and sentenced Appellant to thirty months each on counts four, five, six,

seven, twelve, and thirteen, ordering these to be served consecutively to one another.

The court entered a thirty month sentence on count eleven to be served concurrently with

count four; and a sentence of twelve months each on counts one, two, three, eight, nine,

and ten to be served concurrently with count four. The total prison term to which Appellant

was sentenced was fifteen years. The court also imposed a mandatory three-year term

of postrelease control and credited Appellant with 280 days of jail time served.

       {¶7}   On appeal we vacated Appellant’s sentence in part because the record

revealed that the trial court did not make the requisite consecutive sentencing findings

pursuant to R.C. 2929.14(C)(4). The resentencing hearing was held on August 1, 2018.

Appellant was again sentenced to a total prison term of fifteen years. Appellant filed this

timely appeal.

                               ASSIGNMENT OF ERROR

       THE TRIAL COURT FAILED TO MAKE ALL OF THE REQUIRED

       STATUTORY FINDINGS PURSUANT TO ORC 2929.14(C)(4) BEFORE

       IMPOSING CONSECUTIVE SENTENCES.




Case No. 18 MA 0089
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       {¶8}   Appellant asserts the trial court again failed to adequately consider the

requisite factors prior to imposing consecutive sentences.

       {¶9}   Pursuant to the Ohio Supreme Court’s holding in State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, “an appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing evidence

that the record does not support the trial court’s findings under relevant statutes or that

the sentence is otherwise contrary to law.” Id.

       {¶10} 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.” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118

(1954), paragraph three of the syllabus.

       {¶11} A sentence is considered to be clearly and convincingly contrary to law if it

falls outside of the statutory range for the particular degree of offense; if the trial court

failed to properly consider the purposes and principles of felony sentencing as

enumerated in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C.

2929.12; or if the trial court orders consecutive sentences and does not make the

necessary consecutive sentencing findings. See State v. Collins, 7th Dist. Noble No. 15

NO 0429, 2017-Ohio-1264, ¶ 9; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, ¶ 30.

       {¶12} Appellant initially contends the trial court failed to make the necessary

findings required by statute before again imposing consecutive sentences.




Case No. 18 MA 0089
                                                                                      –7–


      {¶13} R.C. 2929.14(C)(4) sets forth the necessary findings required for the

imposition of consecutive sentences:


      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 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.




Case No. 18 MA 0089
                                                                                       –8–


      {¶14} When a trial court imposes consecutive sentences it must make the findings

required by R.C. 2929.14(C)(4) at the sentencing hearing and must also incorporate those

findings into the judgment entry of sentence. Bonnell, 2014-Ohio-3177, at ¶ 29.

      {¶15} At the resentencing hearing the trial court announced:


      So let me begin by stating that considering the factors contained in Section

      2929 of the Revised Code, I am certainly going to find that a non-prison

      sanction would demean the seriousness of these offenses; that it would not

      adequately protect the public or punish you. * * *


      In examining I think most significantly your criminal history, we indeed do

      have some Felony 4s, receiving, criminal tools, grand theft, attempted

      receiving, theft, a Felony 4 burglary, failure to comply, receiving. These are

      dating back to 1985, ’86, ’92, ’98, 2000. Actually, an opportunity in 2000 for

      community control. There was a probation violation in that case. A B&E, a

      tampering with coin machines, a B&E, and trafficking in drugs in ’03, a B&E

      and vandalism in ’09, a Felony 2 burglary in 2010, and, of course, these

      instant offenses.


      Being perfectly candid, I suppose I was expecting something else today

      from you. I wasn’t part of the original sentencing; but had you come in here

      and talked about wanting to change, or talked about the time that you have

      served, or talked about doing something different, or talked about maybe

      meeting somebody while incarcerated that impacted your life, or talked

      about the AA or NA or CA meetings that you participated in while you have



Case No. 18 MA 0089
                                                                                        –9–


       been incarcerated, it might have demonstrated to me some desire to

       change.


       But I am convinced considering the factors contained in Section 2929.14(C)

       of the Ohio Revised Code that consecutive sentences in this case are not

       disproportionate; that specifically your criminal history as the state and now

       the court have outlined show that consecutive terms are needed to protect

       the public and to punish you.


(8/1/18 Tr., pp. 13-16.)

       {¶16} Quoting the language contained within the relevant portions of R.C.

2929.14(C), the sentencing court made it clear at the hearing that it conducted a

meaningful contemplation of the consecutive sentencing statute.            The trial court

concluded that consecutive sentences were necessary to protect the public and punish

the defendant; that they are not disproportionate to the seriousness of the defendant’s

conduct and the danger posed to the public. Further, the court stated at the hearing that

Appellant’s lengthy criminal history necessitated consecutive sentences.         The court

recited an exhaustive list of Appellant’s criminal history and the opportunities for

community control and probation which were given to Appellant, and yet that his criminal

conduct had persisted.      In accordance with R.C. 2929.14(C)(4)(c), the trial court

concluded that in light of Appellant’s criminal history, consecutive sentences were

necessary to protect the public from future harm.

       {¶17} In the written sentencing entry dated August 7, 2018, the trial court

determined:




Case No. 18 MA 0089
                                                                                     – 10 –


       Considering the factors contained in Section 2929 of the Ohio Revised

       Code, this Court finds that a non-prison sanction would demean the

       seriousness of these offenses and would not adequately protect the public

       and punish the Defendant.


       Additionally, the Court finds that consecutive sentences are not

       disproportionate, and that the Defendant’s criminal history shows that

       consecutive terms are needed to protect the public and punish the

       Defendant.


(8/7/18 J.E.)

       {¶18} The trial court properly complied with the mandates of R.C. 2929.14(C)(4)

and Bonnell in its written judgment entry when sentencing Appellant to consecutive

sentences. The entry contains the finding that consecutive sentences were necessary to

protect the public from future crime and to punish Appellant. The entry further delineates

that consecutive sentences were not disproportionate to the seriousness of Appellant’s

conduct and to the danger he posed to the public. The trial court specifically found that

Appellant’s criminal history demonstrated the need for consecutive sentences. This

record shows that the trial court made the required statutory findings for consecutive

sentences in its written judgment entry. State v. Yetts, 7th Dist. Jefferson No. 18 JE 0004,

2019-Ohio-1203, ¶ 36. Based on the above, the trial court demonstrated it conducted a

meaningful consideration of the consecutive sentencing requirements at the sentencing

hearing as well as in its written sentencing entry. Appellant’s sole assignment of error is

without merit and is overruled.




Case No. 18 MA 0089
                                                                                   – 11 –


                                        Conclusion

       {¶19} On resentencing, the trial court made the requisite R.C. 2929.14(C) findings

at the sentencing hearing and in the judgment entry of sentence when it imposed

consecutive sentences. Accordingly, Appellant’s assignment of error is without merit and

is overruled. The judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, J., concurs.




Case No. 18 MA 0089
[Cite as State v. Goad, 2019-Ohio-3957.]




         For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                           NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
