[Cite as State v. Mason, 2020-Ohio-3505.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-19-74

        v.

JONATHAN MASON,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR2019 0203

                                     Judgment Affirmed

                             Date of Decision: June 29, 2020




APPEARANCES:

        Thomas J. Lucente, Jr. for Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-74



ZIMMERMAN, J.

      {¶1} Defendant-appellant,    Jonathan Mason (“Mason”), appeals the

November 15, 2019 judgment entry of sentence of the Allen County Court of

Common Pleas. We affirm.

      {¶2} On May 16, 2019, the Allen County Grand Jury indicted Mason on five

counts: Count One of trafficking in cocaine in violation of R.C. 2925.03(A)(1),

(C)(4)(d), a second-degree felony; Counts Two, Three, and Four, trafficking in

cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(f), first-degree felonies; and

Count Five of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a

fifth-degree felony. (Doc. No. 1). The indictment also included a forfeiture

specification under R.C. 2941.1417(A) as to Counts Four and Five. (Id.). Mason

appeared for arraignment on May 24, 2019 and entered pleas of not guilty. (Doc.

No. 10).

      {¶3} On June 13, 2019, Mason filed a motion to suppress the evidence

discovered as the result of a search warrant and a motion to suppress the evidence

obtained from a “warrantless recording of video by the confidential informant.”

(Doc. Nos. 24, 25). The State filed memoranda in opposition to Mason’s motions

to suppress evidence on August 6 and 7, 2019, respectively. (Doc. Nos. 29, 31). On




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September 23, 2019, the trial court denied Mason’s motion to suppress the evidence

discovered as a result of the search warrant.1 (Doc. No. 34).

         {¶4} On September 30, 2019, Mason withdrew his pleas of not guilty and

entered guilty pleas, under a negotiated-plea agreement, to Counts One and Two, as

amended, Counts Three and Four, and to the forfeiture specification as to Count

Four of the indictment. (Doc. Nos. 36, 37). In exchange for his change of pleas,

the State agreed to amend Counts One and Two to trafficking in cocaine in violation

of R.C. 2925.03(A)(1), (C)(4)(d), third-degree felonies, and to dismiss Count Five.

(Id.); (Id.). The trial court accepted Mason’s guilty pleas, found him guilty,

amended Counts One and Two, dismissed Count Five, and ordered a presentence

investigation (“PSI”). (Doc. No. 37).

         {¶5} On November 15, 2019, the trial court sentenced Mason to 24 months

in prison on Counts One and Two, respectively, and 6 years in prison on Counts

Three and Four, respectively. (Doc. No. 41). The trial court further ordered Mason

to serve the sentences consecutively for an aggregate term of 16 years in prison.

(Id.).

         {¶6} On December 2, 2019, Mason filed a notice of appeal, and raises one

assignment of error for our review. (Doc. No. 44).




1
  The trial court did not dispose of Mason’s motion to suppress evidence obtained from the confidential
informant’s video recording.

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                                 Assignment of Error

       The trial court erred when it sentenced defendant to prison and
       ran the terms consecutive to each other.

       {¶7} In his assignment of error, Mason argues that the record does not

support the trial court’s imposition of consecutive sentences. Specifically, Mason

argues that the record does not support the trial court’s findings that consecutive

sentences are necessary to protect the public or to punish him or that his conduct

resulted in great or unusual harm are not supported by the record.

                                  Standard of Review

       {¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. 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.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

                                        Analysis

       {¶9} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

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this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)

provides:

       (4) * * * [T]he 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.

       {¶10} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-

24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the




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sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

       {¶11} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and is not

“required to give a talismanic incantation of the words of the statute, provided that

the necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

       {¶12} Mason concedes that the trial court made the three statutorily required

findings before imposing the consecutive sentences and incorporated those findings

into its sentencing entry. Specifically, at the sentencing hearing, the trial court said:

            The court’s decided that [Mason] shall serve the prison terms
       consecutively, pursuant to 2929.14(C)(4), because the court finds that
       consecutive service [sic] is necessary to protect the public from future
       crime, as well as to punish the defendant and that consecutive
       sentences are not disproportionate to the seriousness of his conduct
       and to the danger he poses to the public.

             The court also finds that 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 the courses of conduct adequately
       reflects the seriousness of his conduct, again, because of the shear
       amount of drugs that were placed into this community by him.

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(Nov. 14, 2019 Tr. at 21-22). The trial court incorporated its findings into its

sentencing entry. (Doc. No. 41). Accordingly, the trial court made the appropriate

R.C. 2929.14(C)(4) findings before imposing consecutive sentences.

       {¶13} However, Mason argues that the record does not support the findings

that the trial court used to justify the imposition of consecutive sentences—that is,

Mason argues that the trial court’s imposition of consecutive sentences was

improper because there is no evidence in the record that that consecutive sentences

are necessary to protect the public or to punish him or that his conduct resulted in

great or unusual harm. While a trial court is not required to state reasons in support

of its R.C. 2929.14(C)(4) findings, an appellate court may take action if the record

clearly and convincingly does not support the trial court’s findings under R.C.

2929.14(C)(4). See Bonnell at ¶ 37. See also R.C 2953.08(G)(2)(a).

       {¶14} With regard to his argument that the trial court’s finding that

consecutive sentences are necessary to protect the public or to punish him, Mason

“erroneously contends that our review of the trial court’s consecutive-sentence

findings is guided by the R.C. 2929.12 sentencing factors.” State v. Nienberg, 3d

Dist. Putnam No. 12-16-15, 2017-Ohio-2920, ¶ 19, citing State v. Jones, 8th Dist.

Cuyahoga No. 104152, 2016-Ohio-8145, ¶ 9 (“The crux of his argument rests with

the misplaced belief that appellate review of consecutive sentence findings is guided

by the R.C. 2929.12(B)-(E) sentencing factors and that appellate courts must

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consider the weight given to any one sentencing factor in reviewing whether the

record supports the findings.”). “Instead, ‘our consecutive-sentencing review is

limited to determining whether the record supports the findings actually made; it is

not an invitation to determine or criticize how well the record supports the

findings.’” Id., quoting Jones at ¶ 16, citing State v. Withrow, 2d Dist. Clark No.

2015-CA-24, 2016-Ohio-2884, ¶ 37.

       {¶15} Here, the record supports the trial court’s finding that consecutive

sentences are necessary to protect the public or to punish Mason. Compare State v.

Ray, 8th Dist. Cuyahoga No. 107450, 2019-Ohio-1346, ¶ 37 (concluding that “[t]he

trial court specifically found that consecutive sentences were necessary to protect

the public from further drug dealing by Ray” following Ray’s conviction for

multiple drug-trafficking offenses). Specifically, the record reflects that Mason

engaged in conduct involving four sales of cocaine (some of which conducted

within the vicinity of an elementary school) in progressively larger amounts—

namely, 11.17, 23.97, 33.73, and 37.33 grams of cocaine, respectively. (Nov. 14,

2019 Tr. at 3-4); (PSI). See Nienberg at ¶ 22, citing State v. Ferguson, 7th Dist.

Jefferson No. 15 JE 0008, 2016-Ohio-8414, ¶ 25 (“Of greatest concern, the crimes,

as described by the trial court and state, reveal an incalculable and escalating degree

of danger to the general public.”).




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       {¶16} Moreover, the record reflects that a “Cocaine press”—a tool “that

people in the drug business use to compress their drugs”—was discovered in in

Mason’s residence (“in a room only accessible” to Mason) subsequent to the Allen

County Sheriff Office SWAT team’s execution of a search warrant at that location.

(Nov. 14, 2019 Tr. at 5-6); (PSI). Mason “admitted to using the press to press out

Cocaine for sale after cutting it, specifically telling investigators that he placed the

Cocaine in plastic bags so there would not be Cocaine all over after he was done

pressing it.” (PSI). Accordingly, we conclude that the trial court’s finding that

consecutive sentences are necessary to protect the public or to punish Mason for

selling cocaine to the community is supported by the record. See State v. Williams,

8th Dist. Cuyahoga No. 98934, 2013-Ohio-2201, ¶ 22 (concluding that the trial

court’s finding that consecutive sentences were necessary to protect the public or

punish the offender was supported by the record because, in part, “[t]he offenses to

which Williams pled guilty were part of a series of transactions in which Williams

purchased, and/or facilitated others’ purchases of, crack cocaine from another,

higher level drug dealer”).

       {¶17} Next, Mason argues that the trial court erred in imposing consecutive

sentences because the record does not support the trial court’s conclusion under R.C.

2929.14(C)(4)(b) that the harm caused by two or more of the multiple offenses was

so great and unusual that no single prison term adequately reflects the seriousness


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of Mason’s conduct. Specifically, Mason avers that the trial court’s “fixat[ion] on

the amount of cocaine sold—“the equivalent of a half-cup of sugar”—does not

support a finding that his conduct resulted in great or unusual harm. (Appellant’s

Brief at 12). Rather, he contends that the record merely reflects that he, “in an effort

to make some extra money, made four separate drugs sales on four separate dates,

all to a confidential informant.” (Id.). We disagree.

       {¶18} Here, the harm from Mason’s conduct stems from his intention to

distribute drugs—namely, a significant amount of cocaine—to his community. See

State v. Waxler, 6th Dist. Lucas No. L-16-1269, 2017-Ohio-7536, ¶ 16 (concluding

that “that the harm stemming from Waxler’s conduct centers on his intention to

distribute drugs and firearms to his community”); State v. Johnson, 10th Dist.

Franklin No. 16AP-860, 2017-Ohio-9286, ¶ 28 (concluding that the trial court’s

finding under R.C. 2929.14(C)(4)(b) was “based on the amount of heroin involved”

from multiple transactions).       Importantly, Mason’s conduct was made more

egregious since (as we noted above) some of the four sales were conducted in the

proximity of an elementary school. See Waxler at ¶ 16 (“Further, appellant’s

conduct was made more egregious when one considers the proximity of the

transactions to area schools.”).

       {¶19} Likewise, in addition to the “shear” amount of cocaine that Mason sold

in the four transactions that are the subject of this case, the record reflects that those


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four transactions were not isolated incidents. (See Nov. 14, 2019 Tr. at 22). Instead,

the evidence in the record reveals that Mason was engaging in a sophisticated-drug

operation. As we noted above, law enforcement discovered a cocaine press in a

room that was accessible by only Mason subsequent to the SWAT team’s execution

of a search warrant at Mason’s residence. Mason admitted to law enforcement that

he used the cocaine press to re-package cocaine after “adding cut to the cocaine * *

* to double whatever it was that he got” “and then distribute such to members of the

community.” (Nov. 14, 2019 Tr. at 6). Moreover, even though Mason’s customers

in the four transactions involved in this case turned out to be confidential

informants, such does not diminish the great or unusual harm of Mason’s conduct.

See Waxler at ¶ 16 (“That his customer turned out to be a confidential information

is irrelevant in this regard.”).     Thus, the trial court’s finding under R.C.

2929.14(C)(4)(b) is supported by the record.

       {¶20} For these reasons, we conclude that Mason’s sentence is not

unsupported by the record or contrary to law. Accordingly, his assignment of error

is overruled.

       {¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.
/jlr

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