[Cite as State v. McCoy, 2013-Ohio-4647.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2013-04-033

                                                  :           OPINION
   - vs -                                                     10/21/2013
                                                  :

SHAWN L. MCCOY,                                   :

        Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 12CR28546



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Thomas W. Kidd, Jr., P.O. Box 231, Harveysburg, Ohio 45032, for defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Shawn L. McCoy, appeals his sentence in the Warren

County Court of Common Pleas for misuse of a credit card and receiving stolen property.

        {¶ 2} On August 20, 2012, appellant was indicted on one count of misuse of a credit

card, one count of receiving stolen property, one count of forgery, and one count of theft.

The charges stemmed from appellant's involvement in a scheme between himself and
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another man, where the two would steal credit card account numbers and then recode

physical credit cards with those numbers. Appellant was caught using these recoded credit

cards at a Warren County Wal-Mart to purchase gift cards that were valued at $1,060. Upon

arrest, 11 recoded credit cards were found on appellant's person and an additional 110 credit

cards where found inside his vehicle.

       {¶ 3} On January 24, 2013, appellant pled guilty to one count of misuse of a credit

card and one count of receiving stolen property. Both charges were fifth-degree felonies.

Subsequently, the trial court sentenced appellant to seven months imprisonment on each of

the counts, with both of the counts to run consecutively for an aggregate 14-month prison

term. In sentencing appellant to a term of imprisonment, the trial court rejected defense

counsel's request for community control as appellant was rejected from two community

based corrections facilities because of his bad conduct in the Warren County Jail.

       {¶ 4} Appellant now appeals from the trial court's sentencing decision, raising two

assignments of error.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT ERRED IN SENTENCING [APPELLANT] TO A TERM OF

PRISON INSTEAD OF PROBATION.

       {¶ 7} Assignment of Error No. 2:

       {¶ 8} THE     TRIAL    COUNSEL       WAS     INEFFECTIVE       IN   REPRESENTING

[APPELLANT] AT SENTENCING.

       {¶ 9} For ease of discussion, we will address appellant's assignments of error

together. In his first assignment of error, appellant challenges the trial court's decision in

sentencing him to a term of imprisonment instead of community control. Specifically,

appellant argues that the version of R.C. 2929.13 in effect at the time of his sentencing

required that appellant be sentenced to community control. Appellant contends that the trial
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court did not comply with R.C. 2929.13(B)(1)(a)(iii) since the court contacted community

based control facilities individually instead of contacting the Department of Rehabilitation and

Corrections (DRC). In his second assignment of error, appellant asserts his counsel was

ineffective because counsel did not object to the imposition of a prison term instead of

community control and thus while the sentence might not be plain error, it at least constitutes

regular error.

       {¶ 10} Initially, appellant acknowledges that he failed to raise this issue at his

sentencing hearing and thus has waived all but plain error. See Crim.R. 52(B); State v.

Snyder, 12th Dist. Butler No. CA2011-02-018, 2011-Ohio-6346, ¶ 8. An alleged error

constitutes plain error only if the error is "obvious" and only if it can be said that "but for the

error, the outcome of the trial clearly would have been otherwise." (Citation omitted.) State

v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 108, quoting State v. Long, 53 Ohio St.2d

91 (1978), paragraph two of the syllabus. "Notice of plain error 'is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.'" Lang at ¶ 108, quoting Long, paragraph three of the syllabus.

       {¶ 11} As we recently noted in State v. Crawford, 12th Dist. Clermont No. CA2012-12-

088, 2013-Ohio-3315, "the standard of review set forth in R.C. 2953.08(G)(2) shall govern all

felony sentences." Id. at ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-

Ohio-2525, ¶ 7; see also State v. Cochran, 10th Dist. Franklin No. 11 AP-408, 2012-Ohio-

5899, ¶ 52. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony

sentencing decision, such as the case here, "[t]he appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing." However, as explicitly

stated in R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not whether the

sentencing court abused its discretion."
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       {¶ 12} Rather, the appellate court may take any action authorized under R.C.

2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "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 (2) "[t]hat the sentence is otherwise contrary to law."

A sentence is not clearly and convincingly contrary to law where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly applies postrelease control, and sentences appellant within the permissible statutory

range. Crawford at ¶ 9; State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-

5926, ¶ 10.

       {¶ 13} In making such a determination, it is "important to understand that the clear and

convincing standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford at ¶ 8,

quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891 at ¶ 21. "It does not

say that the trial judge must have clear and convincing evidence to support its findings." Id.

Quite the contrary, "it is the court of appeals that must clearly and convincingly find that the

record does not support the court's findings." Id. Simply stated, the language in R.C.

2953.08(G)(2) establishes an "extremely deferential standard of review" for "the restriction is

on the appellate court, not the trial judge." Id.

       {¶ 14} Appellant's sole challenge to his sentence is that the trial court did not comply

with the sentencing requirements specified in R.C. 2929.13. The version of R.C. 2929.13

that was in effect at the time of appellant's sentencing states in pertinent 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, the court
              shall sentence the offender to a community control sanction of at
              least one year's duration if all of the following apply:

              (iii) If the court made a request of the [DRC] pursuant to division
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                (B)(1)(c) of this section, the [DRC], 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 of at least one year's duration
                that are available for persons sentenced by the court.

(Emphasis added.)

       {¶ 15} R.C. 2929.13(B)(1)(b)(iv) goes on to state that a court has the discretion to

impose a prison term upon an offender who pleads guilty to a felony of the fifth degree if "the

court made a request of the [DRC] * * * and the [DRC] * * * did not provide the court with the

name of, contract information for, and program details of any community control sanction of

at least one year's duration that is available for persons sentenced by the court."

       {¶ 16} Subsection (B)(1)(c) outlines the procedure that a trial court must undertake

when requesting community control sanctions for an offender. It provides, if a court is

sentencing an offender convicted of a fourth or fifth-degree felony that is not an offense of

violence and believes that no community control sanctions are available to impose on the

offender that will adequately fulfill the overriding principles and purposes of sentencing, the

trial court must contact the DRC and ask it to provide the court "with the names of, contact

information for, and program details of one or more community control sanctions of at least

one year's duration that are available" to be imposed on the offender. R.C. 2929.13(B)(1)(c).

Within 45 days of receiving such a request, the DRC must provide the trial court with the

requested information on community control sanctions, if any, that are available for the

offender. Id.

       {¶ 17} If, within the 45-day period, the DRC provides the trial court with the names of,

contact information for, and program details of one or more community control sanctions of at

least one year's duration that are available for the offender, the trial court must impose upon

the offender a community control sanction under R.C. 2929.13(B)(1)(a), subject to divisions

(B)(1)(b)(i) and (ii) of that section. R.C. 2929.13(B)(1)(c). However, if the DRC does not
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provide the trial court with the names of, contact information for, and program details of one

or more community control sanctions of at least one year's duration that are available for the

offender, the trial court may impose upon the offender a prison term under "division

(B)(1)(b)(iii) [sic]" of R.C. 2929.13.1 Id.

         {¶ 18} We find that the trial court did not err in sentencing appellant to a term of

imprisonment instead of community control. We find no clear and convincing evidence that

the trial court's findings violated R.C. 2929.13(B). Appellant pled guilty to two fifth-degree

felonies. Therefore, if all of the provisions of R.C. 2929.13(B)(1)(a) applied, the trial court

must have sentenced him to a community control sanction of at least one year.

         {¶ 19} During appellant's sentencing hearing, the trial court stated that two community

based corrections facilities evaluated appellant and would not take him as he is "an absolute

security risk." Appellant's presentence investigation report includes a letter from the Talbert

House which refused to admit appellant into its program because of his numerous instances

of bad behavior in the Warren County Jail. Additionally, a Warren County Jail report details

appellant's poor behavior, including throwing his own urine, calling the staff names, and

kicking doors.

         {¶ 20} We are not persuaded with appellant's argument that the trial court did not

comply with the statute because it contacted the community based control facilities directly,

instead of contacting the DRC. This court has previously held that contacting community

based control facilities directly to inquire about the availability of sending an offender into the

program was sufficient to comply with the requirements of R.C. 2929.13(B)(1)(c). State v.

Martin, 12th Dist. Butler No. CA2013-03-055, 2013-Ohio-3676, ¶ 21. Consequently, pursuant




1. As this court has noted in State v. Martin, 12th Dist. Butler No. CA2013-03-055, 2013-Ohio-3676, ¶ 19, "the
last sentence of former R.C. 2929.12(B)(1)(c) contains a scrivener's error in that it refers to 'division (B)(1)(b)(iii)
of this section.' (Emphasis added.) However, when R.C. 2929.12(B)(1) is read in context, it is clear that the
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to R.C. 2929.13(B)(1)(b)(iv), the trial court did not err in sentencing appellant to a term of

imprisonment as the DRC was unable to provide the trial court with available community

control sanctions. We find no error, let alone plain error, in appellant's sentence.

         {¶ 21} We also find that appellant's counsel was not ineffective for failing to object to

appellant's sentence on the basis that the court imposed a term of imprisonment instead of

community control. In determining whether counsel's performance constitutes ineffective

assistance, an appellate court must find that counsel's actions fell below an objective

standard of reasonableness and that appellant was prejudiced as a result. Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). In performing its review, an

appellate court is not required to examine counsel's performance under the first prong of the

Strickland test if an appellant fails to prove the second prong of prejudicial effect. State v.

Clark, 12th Dist. Warren No. CA2008-09-113, 2009-Ohio-2101, ¶ 18. In demonstrating

prejudice, an appellant must show that there is a reasonable probability that, but for counsel's

errors, the result of the trial would have been different. Id., citing Strickland at 694.

         {¶ 22} The trial court did not err, plain or otherwise, in sentencing appellant to a term

of imprisonment instead of community control. Thus, appellant cannot show that, but for trial

counsel's failure to object to his sentence, the result would have been different. Appellant

was therefore, not denied the effective assistance of counsel.

         {¶ 23} While we have found no error in the trial court's imposition of a term of

imprisonment, our independent review of the record revealed that the trial court did not

properly impose consecutive sentences. See State v. Warren, 12th Dist. Clermont No.

CA2012-12-087, 2013-Ohio-3483. After reviewing the record, we clearly and convincingly

find that the consecutive nature of the sentences was improperly imposed because the trial


legislature meant to say 'division (B)(1)(b)(iv).' In fact, this error has been corrected in the current version of R.C.
2929.13(B)(1)(c) that became effective on March 22, 2013."
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court did not make the requisite findings as required by statute.

       {¶ 24} According to 2929.14(C)

              (4) If multiple prison terms are imposed on an offender for
              convictions of multiple offenses, the court may require the
              offender to serve the prison terms consecutively if the court finds
              that the consecutive service is necessary to protect the public
              from future crime or to punish the offender and that consecutive
              sentences are not disproportionate to the 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.

       {¶ 25} This court and others have found that a trial court is not required to state any

talismanic language when imposing a sentence. State v. Kuykendall, 12th Dist. Clermont No.

CA2004-12-111, 2005-Ohio-6872, ¶ 24. "The statutory language itself does not have

magical powers. Instead, it is merely a vehicle to ensure that the trial court engaged in the

required analysis." Id. Even so, there must be some reference in the record that the trial

court considered the statutory requirements and made the requisite findings. Here, there is

no indication that the trial court made consecutive findings after having considered the

requirements, or that it made the requisite findings.

       {¶ 26} The statute requires the court to find that (1) the consecutive sentence is

necessary to protect the public from future crime or to punish the offender, and (2) that
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consecutive sentences are not disproportionate to the seriousness of the offender's conduct

and to the danger the offender poses to the public. In addition to these two findings, the

court must find one of the three factors, as listed in subsections (a) through (c). Here, the

trial court did not make the requisite findings regarding consecutive sentences so that this

case must be remanded to the trial court to make the necessary findings.

      {¶ 27} Having found that the imposition of prison was proper, but that the consecutive

nature of appellant's sentence fails to comport with the statutory requirements, appellant's

assignment of error is overruled in part and sustained in part.

      {¶ 28} Judgment affirmed in part, reversed in part, and remanded for further

proceedings consistent with this Opinion.


      PIPER and M. POWELL, JJ., concur.




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