[Cite as State v. Hayes, 2019-Ohio-1609.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 18 CA 11
ROSE HAYES

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 17 CR 11 0274


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 29, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHARLES T. McCONVILLE                          KEVIN J. GALL
PROSECUTING ATTORNEY                           33 West Main Street
117 East High Street, Suite 234                Suite 109
Mount Vernon, Ohio 43050                       Newark, Ohio 43055
Knox County, Case No. 18 CA 11                                                           2

Wise, J.

      {¶1}    Defendant-Appellant Rose M. Hayes appeals her sentence entered in the

Knox County Common Pleas Court following a guilty plea to one count of Aggravated

Possession of Drugs and one count of Possessing Drug Abuse Instruments.

      {¶2}    Appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶3}    The relevant procedural facts leading to this appeal are as follows.

      {¶4}    On November 7, 2017, the Knox County Grand Jury indicted Rose Hayes

on one count of Aggravated Possession of Drugs, a felony of the fifth degree, in violation

of R.C. §2925.11(A), and one count of Possessing Drug Abuse Instruments, a

misdemeanor of the second degree, in violation of R.C. §2925.12(A).

      {¶5}    The Indictment alleged that the conduct occurred October 4, 2017. At the

time she committed the offense in this case, Appellant was under indictment in Knox

County Court of Common Pleas Case 17CR08-0172 for Permitting Drug Abuse, a felony

of the fifth degree. (Docket, Case No. 17CR08-0172).

      {¶6}    On April 27, 2018, Appellant entered a plea of guilty to both counts of the

Indictment in 17CR11-0274. Having previously been found guilty following a jury trial in

Case No. 17CR08~0172, the Knox County Court of Common Pleas sentenced her on

both cases.

      {¶7}    At the sentencing hearing, the trial court sentenced Appellant to eleven (11)

months imprisonment in Case No. 17CR08-0172. (Sent. Entry, Apr. 27, 2018). In Case

No.17CR11-0274, the trial court sentenced Appellant to nine (9) months imprisonment on

Count One; and two (2) months of imprisonment on Count Two. The sentences on the
Knox County, Case No. 18 CA 11                                                          3


two counts were ordered to be served concurrently to each other, and consecutively to

the sentence in Case No. 17CR08-0172. (Sent. Entry, Apr. 27, 2018).

      {¶8}   During the sentencing hearing, the trial court stated that Appellant had

allowed a known drug dealer to move into her house and had created a risk to the

neighborhood and to law enforcement in apprehending him. (Sent. T. at 15). The trial

court also noted that Appellant committed the offense in Case No. 17CR11-0274 while

awaiting trial on Case No. 17CR08-0172. (Sent. T. at 17). Additionally, the court noted

that Appellant was not amenable to community control and provided reasons for such

finding. (Sent. T. at 16:1-18). Appellant had been screened for treatment at the West

Central Community Based Correctional Facility, but was combative with the screener and

stated that she did not need the help the CBCF could provide. Id.

      {¶9}   In imposing a prison sentence the trial court explained "I just don't know

what else to do with you." Id. The court also stated that law enforcement had to put extra

effort into abating the nuisance that was created by the drug dealing at Appellant's

residence. (Sent T. 18:1-4). This information was before the court from Det. DeChant's

testimony in Case No. 17CR08-0172. (Trial T. at 84-85). Det. DeChant had testified that

he was the primary affiant in a civil nuisance case involving 807 N. Mulberry Street, that

he was familiar with the undercover drug buys conducted there, and that the house had

been boarded up. (Id).

      {¶10} Appellant now appeals, raising the following Assignment of Error:

                                  ASSIGNMENT OF ERROR

      {¶11} “I. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A

PRISON SENTENCE IN VIOLATION OF THE SENTENCING STATUTES.”
Knox County, Case No. 18 CA 11                                                         4


                                              I.

      {¶12} In her sole Assignment of Error, Appellant argues the trial court erred in

imposing a prison sentence in this matter. We disagree.

      {¶13} R.C. §2953.08(G)(2), “Appeals based on felony sentencing guidelines”

provides:

             The court hearing an appeal under division (A), (B), or (C) of this

      section shall review the record, including the findings underlying the

      sentence * * *. The 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.

      The appellate court's standard for review is not whether the sentencing

      court abused its discretion. The appellate court may take any action

      authorized by this division if it clearly and convincingly finds 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 2929.13(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;

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

      2953.08(G)(2).

      {¶14} “[A]ppellate courts must adhere to the plain language of R.C.

2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231,

¶7. An appellate court may only modify or vacate a sentence if it finds by clear and
Knox County, Case No. 18 CA 11                                                            5

convincing evidence that the record does not support the sentencing court's decision. Id.

at ¶23. Clear and convincing evidence is that “ ‘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.

Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7 quoting, Marcum, supra,

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

the syllabus. Clear and convincing evidence is that measure or degree of proof which is

more than a mere “preponderance of the evidence,” but does not require the certainty of

“beyond a reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.

       {¶15} R.C. §2929.14(C)(4) governs consecutive sentences and states the

following:

              (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
Knox County, Case No. 18 CA 11                                                           6


      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.

      {¶16} “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.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,

2014-Ohio-3177, syllabus.

      {¶17} Initially, we note that Appellant does not argue that the trial court failed to

make the appropriate sentencing findings. Instead, Appellant, in part, disagrees with the

trial court's seriousness findings under R.C. §2929.12, as well as the trial court's

imposition of a prison sentence rather than community control.

      {¶18} Upon review of the record before us, as set forth above, the trial court made

the following sentencing findings on the record: Appellant had allowed a known drug

dealer to move into her house and had created a risk to the neighborhood and to law

enforcement in apprehending him (Sent. T. at 15); Appellant committed the offense in

Case No. 17CR11-0274 while awaiting trial on Case No. 17CR08-0172 (Sent. T. at 17);

Appellant was not amenable to community control having been screened for treatment at

the West Central Community Based Correctional Facility, became combative with the

screener and stated that she did not need the help the CBCF could provide (Sent. T. at
Knox County, Case No. 18 CA 11                                                                7


16:1-18). The trial court, in imposing a prison sentence, explained "I just don't know what

else to do with you." Id. The court also stated that law enforcement had to put extra effort

into abating the nuisance that was created by the drug dealing at Appellant's residence.

(Sent T. 18:1-4).

       {¶19} We further find that the trial court, in its Sentencing Entry, stated that it found

Appellant committed one or more offenses while she awaited trial or sentencing (R.C.

§2929.14(C)(4)(a)), and that Appellant’s history of criminal conduct demonstrates that

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

Appellant (R.C. §2929.14(C)(4)(c)). (See (May 1, 2018, Sentencing Entry at 2).

Additionally, the trial court stated:

               The Court noted on the record that the circumstances of the

       defendant’s conduct in connection with the crime created a serious threat

       to the safety of the community in which the Defendant lives, and a threat to

       the safety of the law enforcement officers who were involved in her arrest.

       (May 1, 2018, Sentencing Entry at 2).

       {¶20} Based on our review, we find that the record demonstrates that the trial

court made the seriousness findings pursuant to R.C. 2929.12(B) & (C). Here, the trial

court's sentence was within the statutory range. Moreover, the record reveals that the trial

court properly considered the statutory purposes and factors of felony sentencing

       {¶21} Accordingly, we find that the trial court did not err in the imposition of

Appellant's prison sentence and did not fail to consider the statutory factors required when

imposing a prison sentence.

       {¶22} Appellant’s assignment of error is overruled.
Knox County, Case No. 18 CA 11                                                         8


      {¶23} For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Knox County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.




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