[Cite as State v. Vanwinkle, 2020-Ohio-2783.]




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




STATE OF OHIO,
                                                         CASE NO. 17-19-20
       PLAINTIFF-APPELLEE,

       v.

DONALD P. VANWINKLE,                                     OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 17CR000025

                                     Judgment Affirmed

                               Date of Decision: May 4, 2020



APPEARANCES:

        Laura E. Waymire for Appellant

        Timothy S. Sell for Appellee
Case No. 17-19-20


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Donald P. Vanwinkle (“Vanwinkle”) appeals the

judgment of the Shelby County Court of Common Pleas, alleging that the trial

court’s imposition of consecutive sentences was not supported by the record. For

the reasons set forth below, the judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} On May 11, 2017, Vanwinkle was indicted on one count of aggravated

possession of drugs in violation of R.C. 2925.11(A); one count of possession of

drugs in violation of R.C. 2925.11(A); and one count of possessing criminal tools

in violation of R.C. 2923.24. Doc. 13. On June 8, 2017, Vanwinkle appeared for

his arraignment and entered a plea of not guilty. Doc. 32. He was released on bond.

Doc. 59. On September 1, 2017, Vanwinkle failed to appear for a pretrial hearing.

Doc. 59. On September 8, 2017, the trial court declared Vanwinkle’s bond forfeited

and ordered a warrant be issued for his arrest. Doc. 59.

       {¶3} In 2019, the Kentucky Department of Corrections notified the State that

Vanwinkle was in their custody. Doc. 75. Vanwinkle had been convicted for

several offenses in Kentucky. Tr. 15. For these crimes, he received three ten-year

prison sentences.     Tr. 15.    One of these ten-year sentences was imposed

consecutively to the other two prison terms, giving Vanwinkle an aggregate

sentence of twenty years in prison. Tr. 15.



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       {¶4} On August 27, 2019, Vanwinkle entered a plea agreement with the State

under which he pled guilty to one count of aggravated possession of drugs in

violation of R.C. 2925.11(A). Doc. 94. The remaining counts in the indictment

were dismissed.     Doc. 106.    On August 26, 2019, the trial court sentenced

Vanwinkle to a prison sentence of two years. Doc. 106. The trial court ordered the

sentence in this case to be run consecutively to the sentences Vanwinkle had to serve

in Kentucky. Doc. 106.

                                Assignment of Error

       {¶5} The appellant filed his notice of appeal on October 7, 2019. Doc. 117.

On appeal, Vanwinkle raises the following assignment of error:

       The trial court’s imposition of consecutive sentences was not
       supported by the record

He argues on appeal that the facts in the record do not support the trial court’s

findings that his actions constituted a course of conduct under R.C.

2929.14(C)(4)(b) or that the harm from his offense was so great that a single prison

term would not reflect the seriousness of that offense under R.C. 2929.14(C)(4)(c).

                                  Legal Standard

       {¶6} R.C. 2929.14(C)(4) requires the trial court to make statutory findings

prior to imposing consecutive sentences * * *.” State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. R.C. 2929.14(C)(4) reads, in its

relevant part, as follows:


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       (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.

(Emphasis added.) R.C. 2929.14(C)(4). “[T]he record must contain a basis upon

which a reviewing court can determine that the trial court made the findings required

by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell at ¶ 28.

However, “no statute directs a sentencing court to give or state reasons supporting

imposition of consecutive sentences.” Id. at ¶ 27.

       {¶7} “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

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otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam No. 12-16-15 and

12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

       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. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 12, quoting Cross

v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus

(1954).

                                    Legal Analysis

       {¶8} We begin our analysis by noting that Vanwinkle was informed in his

plea agreement that the maximum potential sentence that he faced was eight years

in prison and that the trial court only imposed a sentence of two years. Doc. 94. At

the sentencing hearing in this case, the trial court stated that

       based upon a review of [Vanwinkle’s] entire history that
       consecutive sentencing is necessary to protect the public from you
       and to punish you and that consecutive sentencing is not
       disproportionate to the seriousness of your conduct and to the
       danger you pose to the public. Quite frankly, if I didn’t give you
       consecutive sentencing, you’d get no penalty at all for the crimes
       that * * * you committed in this county.

       The Court is also gonna find 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 offenses were
       so great or so unusual that no single prison term reflects the * * *

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Case No. 17-19-20


       seriousness of your conduct, and that your * * * history of
       criminal conduct demonstrates that consecutive sentencing is
       necessary to protect the public from future crime from you.

Tr. 16-17. Thus, the trial court found (1) that the offense was part of one or more

courses of criminal conduct and that the harm of the offense was so great that a

single prison term would not reflect the seriousness of the offense under R.C.

2929.14(C)(4)(b) and (2) found that consecutive sentencing was necessary to protect

the public from future crime under R.C. 2929.14(C)(4)(c). R.C. 2929.14(C)(4)(b-

c).

       {¶9} Vanwinkle argues that the record does not support the trial court’s

finding under R.C. 2929.14(C)(4)(b) because the offense he committed in Shelby

County and the offenses that he committed in Kentucky were not part of one course

of criminal conduct. However, “R.C. 2929.14(C)(4)(b) applies to cases in which

two or more offenses ‘were committed as part of one or more courses of conduct,’

meaning that the offenses in this case need not have been connected.” (Emphasis

sic.) State v. McGinnis, 2d Dist. Greene No. 2018-CA-35, 2019-Ohio-3803, ¶ 26.

The record indicates that Vanwinkle committed the offense of aggravated

possession of drugs in Shelby County and then committed multiple offenses in

Kentucky, at the very least, several months later. Thus, these multiple offenses were

committed in separate courses of conduct.

       {¶10} However, the trial court did not impose consecutive sentences because

it failed to understand that his offense in Shelby County was committed in a different

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course of conduct from the multiple offenses committed in Kentucky. Rather, the

trial court imposed consecutive sentences precisely because it recognized that these

were separate courses of conduct. The trial court stated, “[q]uite frankly, if I didn’t

give you consecutive sentencing, you’d get no penalty at all for – for the crimes that

–that you committed in this county.” Tr. 16.

         {¶11} For this reason, the trial court stated that, if it ran his sentence

concurrently to those sentences imposed in Kentucky, Vanwinkle would only be

punished for one of these courses of conduct and would, in effect, not be punished

for his criminal conduct in Shelby County. The trial court determined that these

multiple offenses were committed in separate courses of conduct and that

Vanwinkle should receive some punishment for the course of conduct in which he

committed the offense of drug trafficking in Shelby County. The wording of R.C.

2929.14(C)(4)(c) allows the trial court to order consecutive sentences in this exact

type of situation.      Thus, the trial court did not err in finding that R.C.

2929.14(C)(4)(c) was applicable in this case. Vanwinkle’s argument is without

merit.

         {¶12} Vanwinkle also argues that the record does not support the trial court’s

finding under R.C. 2929.14(C)(4)(c) because he did not have a criminal history

before the age of forty. However, the record indicates that Vanwinkle was found to

be in possession of 1,044 tablets of oxycodone, forty-six tablets of alprazolam, and

eleven half pieces of alprazolam. Doc. 1, 13. A police report indicated that

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Vanwinkle was in possession of 69.4 times the bulk amount of oxycodone. Doc. 1.

At the sentencing hearing, Vanwinkle explained that he had an accident and took

opiates for pain management. Tr. 10, 11. He then encountered a number of setbacks

in his personal life and became an addict. Tr. 12.

       {¶13} At the sentencing hearing, the trial court acknowledged that

Vanwinkle’s “record is – is somewhat remarkable,” saying that he

       went 40 some years without – without any record at all of – of any
       consequence. I don’t – I don’t think we found anything at all, not
       even a traffic offense. But when you decided to go off the deep
       end, you went off the deep end * * * in a * * * big way with the
       number of – of offenses that you are sentenced for in – in
       Kentucky. So the Court certainly takes in – into consideration
       your – your lack of a previous record, criminal record.

       On the other hand, the Court has to take into consideration the
       huge quantity of drugs that you – you brought in – into this
       county. As – as you probably are well aware, the opiate crises is
       just – is just ongoing and it’s persons bringing drugs into this
       community that continues to create that problem in – in this
       county.

Tr. 16. Thus, the trial court noted the existing opioid crisis in considering the need

to prevent Vanwinkle from visiting future harm on the public. After reviewing the

evidence in the record, we conclude, there is some evidence in the record to support

the trial court’s finding.

                                     Conclusion

       {¶14} In the end, Vanwinkle has not shown by clear and convincing evidence

that the imposition of consecutive sentences is unsupported by the record.


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Vanwinkle’s sole assignment of error is overruled.        Having found no error

prejudicial to the appellant in the particulars assigned and argued, the judgment of

the Shelby County Court of Common Pleas is affirmed.

                                                               Judgment Affirmed

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

/hls




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