[Cite as State v. Hicks, 2016-Ohio-1420.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 2015-CA-20
                                                  :
 v.                                               :   T.C. NO. 14CR552
                                                  :
 CHARLENE HICKS                                   :   (Criminal appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                  Rendered on the ___1st___ day of _____April_____, 2016.

                                             ...........

ANU SHARMA, Atty. Reg. No. 0081773, Assistant Prosecutor, 61 Greene Street, Xenia,
Ohio 45385
      Attorney for Plaintiff-Appellee

DANIEL E. BRINKMAN, Atty. Reg. No. 0025365, Suite 2000 Liberty Tower, 120 West
Second Street, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

                                            .............

DONOVAN, P.J.

        {¶ 1} Defendant-appellant Charlene Hicks appeals her conviction and sentence for

four counts of theft from a disabled adult, in violation of R.C. 2913.02(A)(1), all felonies of

the fourth degree, and one count of theft from a disabled adult, in violation of R.C.

2913.02(A)(1), a felony of the third degree. Hicks filed a timely notice of appeal with this
                                                                                           -2-


Court on April 3, 2015.

       {¶ 2}   At the time that the instant offenses were committed, Hicks had been

employed at Hope Homes in various capacities for approximately twenty years. Hope

Homes is an organization which provides housing assistance and other services to

disabled adults.

       {¶ 3} In December of 2013, Hicks was employed as a supervisor for Hope Homes

in Fairborn, Ohio.    Hicks’ duties included scheduling support staff to handle client

finances, scheduling medical appointments for clients, and otherwise addressing general

issues with respect to client care. After an internal financial audit, representatives for

Hope Homes became aware that Hicks had made several purchases using client

accounts for her own personal use. The audit revealed that Hicks had been unlawfully

taking money from clients’ accounts over the course of approximately three years.

Based on the results of the audit, administrators for Hope Homes confronted Hicks and

contacted the Fairborn Police Department.

       {¶ 4} On October 6, 2014, Hicks was indicted for the following offenses: Counts I-

V, theft from a disabled adult, in violation of R.C. 2913.02(A)(1), all felonies of the fourth

degree; Counts VI-VIII, theft from a disabled adult, in violation of R.C. 2913.02(A)(1), all

felonies of the third degree; and Count IX, theft from a disabled adult, in violation of R.C.

2913.02(A)(1), a felony of the fifth degree. At her arraignment on October 24, 2014,

Hicks pled not guilty to all of the counts in the indictment.

       {¶ 5} On January 22, 2015, Hicks pled guilty to Counts I-IV, theft from a disabled

adult, all felonies of the fourth degree; and Count VI, theft from a disabled adult, a felony

of the third degree. In exchange for Hicks’ guilty plea, the State agreed to dismiss the
                                                                                              -3-


remaining counts.       The State also agreed to recommend community control at

sentencing. The trial court accepted Hicks’ plea and found her guilty.

       {¶ 6} At the sentencing hearing on March 11, 2015, the trial court sentenced Hicks

to eighteen months in prison for each of Counts I-IV and thirty-six months in prison for

Count VI. The trial court ordered that Hicks’ sentences were to run consecutively for an

aggregate sentence of 108 months (nine years) in prison. Restitution was ordered in the

amount of $75,142.77.

       {¶ 7} It is from this judgment that Hicks now appeals.

       {¶ 8} Hicks’ sole assignment of error on appeal is as follows:

       {¶ 9} “THE TRIAL COURT IMPOSED MAXIMUM CONSECUTIVE SENTENCES

THAT WAS [sic] NOT SUPPORTED BY EVIDENCE ON THE RECORD AND

CONTRARY TO LAW.”

       {¶ 10} In her sole assignment, Hicks contends that the trial court’s decision to

impose maximum consecutive sentences was not supported by evidence in the record,

and is therefore contrary to law.

       {¶ 11} Initially, we note that Hicks was convicted and sentenced for four fourth

degree felonies and one third degree felony. Pursuant to R.C. 2929.14(A)(3)(b), the

basic prison term for a felony of the third degree shall be nine, twelve, eighteen, twenty-

four, thirty, or thirty-six months (three years). For a felony of the fourth degree, the prison

term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,

seventeen, or eighteen months. R.C. 2929.14(A)(4).

       {¶ 12} “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others and to punish the offender.” R.C. 2929.11(A).
                                                                                       -4-


       {¶ 13} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.’ State v. Nelson, 2d

Dist. Montgomery No. 25026, 2012–Ohio–5797, ¶ 62. ‘However, the trial court must

comply with all applicable rules and statutes, including R.C. 2929.11 and R.C.

2929.12.’ Id.” State v. Eicholtz, 2d Dist. Clark No. 2012 CA 7, 2013–Ohio–302, ¶ 53.

       {¶ 14} Before imposing a consecutive sentence, a trial court is required to find

that: (1) “consecutive service is necessary to protect the public from future crime or to

punish the offender”; (2) “consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public”;

and (3) 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
                                                                                          -5-


        future crime by the offender.

R.C. 2929.14(C).

     {¶ 15} As this Court recently noted in State v. McGlothan, 2d Dist. Clark Nos.

2014–CA–120, 2014–CA–121, 2014–CA–122, 2015–Ohio–2713, ¶ 12–13:

            “On appeals involving the imposition of consecutive sentences, R.C.

     2953.08(G)(2)(a) directs the appellate court ‘to review the record, including

     the findings underlying the sentence’ and to modify or vacate the sentence

     ‘if it clearly and convincingly finds * * * [t]hat the record does not support the

     sentencing court's findings under division * * * (C)(4) of section 2929.14 * *

     * of the Revised Code.’ ” State v. Bonnell, 140 Ohio St.3d 209, 2014–

     Ohio–3177, 16 N.E.3d 659, ¶ 28. In State v. Rodeffer, 2013–Ohio–5759, 5

     N.E.3d 1069 (2d Dist.), we held that we would no longer use an abuse of

     discretion standard in reviewing a felony sentence, but would apply the

     standard of review set forth in R.C. 2953.08(G)(2).

            Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,

     or modify a sentence, or it may vacate the sentence and remand for

     resentencing, only if it “clearly and convincingly” finds either (1) that the

     record does not support certain specified findings or (2) that the sentence

     imposed is contrary to law. Rodeffer stated that “[a]lthough [State v.

     Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124] no longer

     provides the framework for reviewing felony sentences, it does provide * * *

     adequate guidance for determining whether a sentence is clearly and

     convincingly contrary to law. * * * According to Kalish, a sentence is not
                                                                                          -6-


       contrary to law when the trial court imposes a sentence within the statutory

       range, after expressly stating that it had considered the purposes and

       principles of sentencing set forth in R.C. 2929.11, as well as the factors

       in R.C. 2929.12.” (Citations omitted.) Rodeffer at ¶ 32.

       {¶ 16} Hicks does not claim that the trial court failed to make the statutory findings

under R.C. 2929.14(C)(4); rather, she asserts that the record does not support the trial

court's findings. Additionally, she points out that she had no criminal convictions prior to

the instant case, other than minor misdemeanor traffic offenses.

       {¶ 17} We begin our analysis by emphasizing that we in no way condone or wish

to minimize the seriousness of Hicks’ conduct in this case. To be sure, Hicks’ financial

misconduct occurred over a three-year period and encompassed some $75,000.00 of

clients’ funds. As a supervisor for Hope Homes, Hicks held a position of trust and

authority over the mentally and physically disabled adults under her fiscal supervision,

and she misused that position of trust and authority to gain access to their financial

resources.

       {¶ 18} Upon review, we conclude that while the trial court made all of the requisite

findings pursuant to R.C. 2929.14(C)(4), we clearly and convincingly find that the record

does not support the imposition of consecutive sentences in the instant case. When

imposing maximum consecutive sentences, the trial court stated the following which was

directly incorporated into Hicks’ judgment entry of conviction:

              The Court: The Court has decided that [Hicks] shall serve the prison

       terms consecutively, pursuant to O.R.C. 2929.14(C)(4), because the Court

       finds that consecutive service is necessary to protect the public from future
                                                                                       -7-


      crime or to punish the Defendant and that consecutive sentences are not

      disproportionate to the seriousness of the Defendant’s conduct and to the

      danger the Defendant poses to the public, and the Court also finds the

      following:

             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 Defendant’s conduct.

             Further, the Court finds that the Defendant, Charlene Hicks, while in

      a position of trust specifically engaged in a continuing course of conduct

      over a significant period of time, wherein she took advantage of and

      committed theft offenses upon the most vulnerable in our society, the

      disabled, on multiple occasions causing substantial hardship to multiple

      victims emotionally and financially.

      {¶ 19} While Hicks received the maximum penalty for each count to which she pled

guilty, her sentence was within the statutory range and thus, not contrary to law.      In

determining Hicks’ sentence, the trial court indicated in the judgment entry of conviction

that it considered the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. We have held,

however, that “[a] trial court is not required to state that it considered R.C.

2929.11 and R.C. 2929.12.      Unless the sentence is contrary to law, a trial court is

presumed to have considered them.” State v. Neff, 2d Dist. Clark No. 2012–CA–31,
                                                                                         -8-


2012–Ohio–6047.

       {¶ 20} The trial court, indeed, articulated the findings required by R.C.

2929.14(C)(4) to impose consecutive sentences, namely that consecutive sentences are

necessary to protect the public and punish Hicks, that consecutive sentences are not

disproportionate to the seriousness of Hicks’ conduct, and that she engaged in a course

of conduct over a significant period of time that caused great or unusual harm. As this

Court recently noted however, in State v. Adams, 2d Dist. Clark No. 2014–CA–13, 2015–

Ohio–1160, ¶ 18, in which this Court determined that the record did not support the trial

court's consecutive-sentence findings, while the sentencing court is not required to

provide reasons to support its findings, “ * * * an explanation of the rationale (both case-

specific and statutory) for a sentence can only increase the public understanding of a

particular sanction and thus the perceived legitimacy of the criminal justice system. See,

e.g., O'Hear, Explaining Sentences, 36 Fla.St.U.L.Rev. 459 (2009) * * *.” This Court

further cautioned in Adams as follows:

              “Formalism” has been described as scrupulous or excessive

       adherence to outward form at the expense of inner reality or content. We

       are concerned that our sentencing jurisprudence has become a rubber

       stamp for rhetorical formalism. It appears that consecutive sentences will

       be upheld on appellate review as long as the aggregate sentence is within

       the arithmetic long-addition established by the statutes and the trial judge

       and the entry state that this calculation is necessary to protect the public

       from future crime or to punish the offender, (2) not disproportionate to the

       seriousness of the offender's conduct and to the danger the offender poses
                                                                                         -9-


       to the public, and (3) one or more of the offenses was committed while

       awaiting trial or sentencing. Here, the minimally-required statutory phrases

       were uttered, and a 22–year–old non-psychopathic addict, with only a

       previous juvenile suspended DYS commitment and no adult felony record,

       will spend the next twenty years in prison at the expense of the taxpayers,

       not to mention the damage to him and to the community where he will be

       released.

Adams, ¶ 30.

       {¶ 21} On the record before us, we clearly and convincingly find a lack of support

for the trial court's consecutive-sentencing findings. As noted above, Hicks was fifty-two

years old at the time of the offenses. By all accounts, Hicks led a lawful life prior to the

offenses, having not been adjudicated a delinquent child and with no adult criminal

history. See R.C 2929.12(E)(1)-(3). While Hicks only attended high school through the

tenth grade, her PSI indicated that she had received her GED. We note that in Hicks’

PSI, the probation department recommended that she serve an aggregate sentence of

three years, with all prison terms to run concurrent to one another.

       {¶ 22} Additionally, Hicks’ PSI does not indicate that she has any problems with

drugs, alcohol, or any other compulsive, vice-like behavior. Rather, Hicks stated that her

husband became sick and passed away during the time in which she committed the

instant offenses, and that she used the money that she stole from her clients’ accounts

to pay for medications for her husband and for funeral expenses after he died. Hicks

also stated that she used the stolen money to pay bills, to keep her car operational, and

to keep her home in repair. We note that the State did not allege any alternative theories
                                                                                         -10-


regarding how Hicks spent the money she stole. While this is no excuse or justification

for what she did, these facts are not conducive to recidivism given her age, lack of prior

incarceration, and otherwise decades of law-abiding life. This conclusion is supported

by Hicks’ PSI, which indicates that there were no statutory or non-statutory factors tending

to show that Hicks is likely to commit future crimes. See State v. Nichols, 195 Ohio

App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082 (2d Dist.)

       {¶ 23} Regarding the trial court's determination that at least two offenses were

committed as part of one course of conduct, and that the harm caused by two or more of

the offenses was so great or unusual that no single prison term adequately reflects the

seriousness of the defendant's conduct, we note that there is no evidence that Hicks

caused physical harm to any of the residents subject to her fiscal supervision, hence the

conduct does not fit into the category of “the harm is so great or unusual that no single

prison term adequately reflects the seriousness” thereof.

       {¶ 24} We recognize that the record reveals that one victim authored a letter to the

trial court in which he stated that because Hicks stole money from him, he was not able

to take a trip to the Smokey Mountains which he stated had been a “dream of [his].” The

same victim also stated that he was deeply hurt by Hicks’ conduct and had a difficult time

trusting any new care providers.     A representative for Torg Independence, the new

company that took over for Hope Homes, stated that she had to purchase cat litter for

one of the victims because his apartment smelled bad. The Torg representative also

indicated that all of the victim’s utility bills were in arrears and that he had received

disconnect notices because none of his bills had been paid as a result of Hicks’ theft.

However, none of his utilities had been disconnected. The Torg representative also
                                                                                         -11-


noted that the same victim only had one pair of pants and one pair of underwear to wear

when she contacted him, but several shirts. The representative blamed this on Hicks’

decision to steal the victim’s money rather than purchase clothes for him. Lastly, a

mother and guardian of the one of the victims stated that her son, who is completely

physically disabled and non-verbal, is now very distrustful and suspicious of his care

providers because Hicks stole from him.          We recognize that this is an emotional

cost/harm for which Hicks is deserving of punishment.

       {¶ 25} Certainly, Hicks’ conduct reasonably supports imposition of a sentence

within the upper ranges of R.C. 2929.14(A)(3)(b), which authorizes sentences of nine,

twelve, eighteen, twenty-four, thirty, or thirty-six months (three years) for third-degree

felony offenses, and note the range for fourth degree felonies. However, and with that

said, the principles and purposes of felony sentencing in R.C. 2929.11 nevertheless

require the trial court in imposing its sentence to also consider, among other things,

rehabilitating the offender. In our view, by sentencing this fifty-two year–old, first-time,

non-violent offender to nine years in prison, the trial court failed to reasonably consider

the concept of rehabilitation, as well as recidivism.

       {¶ 26} In recent cases, we have reversed sentences imposed by trial courts when

the record fails to support conclusions required to impose consecutive sentences.

In State v. Overholser, 2d Dist. Clark No. 2014–CA–42, 2015–Ohio–1980, we reversed a

judgment imposing consecutive sentences for five counts of gross sexual imposition

because    the    record   did   not   support    the   statutory   factors   required   for

imposing consecutive sentences, when the defendant was remorseful, his risk of

recidivism was low, he had no criminal history, and the offenses were not more egregious
                                                                                       -12-

than similar offenses. Id. at ¶ 29–32. We noted that the excessive sentence “may in fact

demean the seriousness of other more violent crimes and harm to other victims” and that

the record “did not demonstrate that consecutive service is the minimum sanction to

accomplish the purposes and principles of sentencing without imposing an unnecessary

burden on the State.” Id. at ¶ 32–33. Similarly, in State v. Adams, 2d Dist. Clark No.

2014–CA–13, 2015–Ohio–1160, we reversed a judgment imposing consecutive

sentences for three counts of burglary and one count of heroin possession, because the

record did not support the statutory factors required for imposing consecutive sentences,

when the defendant was remorseful, he was seeking drug treatment, he had no criminal

convictions as an adult, none of the offenses involved violence, the harm to the victims

was minimal, and the offenses were not more egregious than similar offenses. Id. at ¶

20–29.

       {¶ 27} We also reiterate here that as part of the plea agreement, the State agreed

to recommend probation as an inducement for Hicks to plead guilty and forego a trial.

This particular issue was analyzed in a concurring opinion by Judge William Wolff in State

v. Lewis, 2d Dist. Greene No. 2004-CA-101, 2005-Ohio-3736, wherein he stated the

following:

              A sentencing recommendation is an inducement to forego the right

       to trial and is only a proper inducement if it is a realistic recommendation.

              This is not to say that an unrealistic sentencing recommendation is

       necessarily a basis for reversal.           Assuming arguendo that the

       recommendation here was unrealistic, the trial court made it abundantly

       clear to Lewis that the court was not bound by the State’s recommendation.
                                                                                         -13-


              That having been said, the integrity of the practice of plea negotiation

       – which is essential to the efficient administration of the criminal justice

       system – is better served by realistic sentencing recommendations.

       ***

              Realistic sentencing recommendations can only serve the objective

       of well considered, well counseled pleas of guilty and no contest.

       {¶ 28} Based on our review of the record, we clearly and convincingly find that the

record fails to support the findings necessary for the imposition of consecutive sentences.

       {¶ 29} Hicks’ sole assignment of error is sustained.

       {¶ 30} Hicks’ sole assignment of error having been sustained, the judgment of the

trial court is reversed, and this matter is remanded for the imposition of concurrent terms.

                                        ..........

FROELICH, J., concurs.

WELBAUM, J., dissenting.

       {¶ 31} I very respectfully disagree with the majority’s conclusion that the trial

court’s decision to impose consecutive sentences should be reversed. Rather, I find this

to be an extremely close case in which the outcome differs based upon how the standard

of review in R.C. 2953.08(G)(2) is applied to the facts of this case.

       {¶ 32} Appellate judges sometimes disagree with sentences, yet affirm based

upon the applicable standard of review set forth in R.C. 2953.08(G)(2). This statute

provides that where the trial court properly makes the findings mandated by R.C.

2929.14(C)(4), an appellate court may not reverse the trial court’s imposition of

consecutive sentences unless it first clearly and convincingly finds that the record does
                                                                                            -14-


not support the trial court’s findings. The restriction is on the appellate court, not the trial

judge. It is a very deferential standard of review which prohibits appellate courts from

substituting their judgment for that of trial judges. State v. Rodeffer, 2013-Ohio-5759, 5

N.E.3d 1069, ¶ 31 (2d Dist.), citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶

21 (8th Dist.).   Therefore, the question is not whether the trial court had clear and

convincing evidence to support its findings, but rather, whether we clearly and

convincingly find that the record does not support the trial court’s findings. Id. I believe

the dissenting opinion in State v. Kay, 2d Dist. Montgomery No. 26344, 2015-Ohio-4403

is correct in that the consecutive nature of the trial court’s sentencing should stand unless

the record overwhelmingly supports a contrary result. Id. at ¶ 26 (Hall, J., dissenting).

       {¶ 33} In this case, I do not believe the record overwhelmingly supports a contrary

result. Hicks methodically committed multiple thefts totaling $75,000 over a three-year

period. Her thefts involved numerous disabled victims who were vulnerable and who

trusted her. Hicks had a duty to protect and care for these victims and yet she stole from

them over and over again despite their needs being unmet as a result. For instance, as

noted by the majority, one of the victim’s utility bills went unpaid and one of the victims

was left with only one pair of pants and underwear due to Hicks’s thefts. Another one of

the victims suffered emotional harm and remains distrustful and suspicious of his

caretakers.

       {¶ 34} Based on these facts, it is difficult to clearly and convincingly find that that

the record does not support the trial court’s consecutive sentence findings. “[E]ven a

record that is largely silent is not clearly and convincingly contrary to a trial court's

consecutive-sentencing determination unless there is substantial affirmative factual
                                                                                         -15-


information in support of the defendant to conclude that the trial court is clearly wrong.”

Kay at ¶ 27 (Hall, J., dissenting).   Here, the factual information in the record indicates

the trial court’s findings are debatable, but not clearly wrong.

       {¶ 35} In my opinion, the consecutive sentence finding that is debatable is whether

“consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public.” Admittedly, there are

aspects of the record that are troubling with regards to this finding, such as the fact that

Hicks is a 53-year-old first time offender, her low risk assessment in the PSI, and the

sentencing recommendations provided by the probation department and the State.

       {¶ 36} However, the risk assessment and recommendation of the probation

department are not controlling, nor is the State’s recommendation. The fact that the

prosecutor, probation department, and trial court arrived at different conclusions about

the appropriate sentence is of slight consequence regarding the question posed by the

standard of review in R.C. 2953.08(G)(2).          Moreover, although the imposition of

consecutive sentences must not be disproportionate to the seriousness of the harm, it

need not be physical harm.

       {¶ 37} While Hicks’s lack of a criminal record tends to indicate that she poses a

minimal danger to the public, there are other parts of the record which support the trial

court’s finding that consecutive sentences are not disproportionate to the danger she

poses. Specifically, the trial court highlighted the fact that Hicks engaged in a course of

criminal conduct over a significant period of time. The fact that Hicks’s theft was not a

one-time incident, but an ongoing criminal endeavor against multiple victims, indicates

that she has the ability to continue down a criminal path, thereby exhibiting a sustained
                                                                                             -16-


danger to members of the public, particularly those who are disabled and vulnerable.

The large amount of money stolen and the impact it had on the victims also indicates that

Hicks is capable of committing serious harm.

       {¶ 38} It is inapposite that this court may disagree with the sufficiency or weight of

these facts, as it only matters that there are facts in the record that arguably support the

trial court’s finding. This alone should prevent us from concluding that the finding is

clearly and convincingly unsupported by the record. Also, like the dissenting opinion in

Kay, I “reject the idea that when analyzing consecutive-sentence determinations under

R.C. 2929.14(C)(4) either the trial court or this court is limited to the specific factors listed

in R.C. 2929.12.” Kay, 2d Dist. Montgomery No. 26344, 2015-Ohio-4403 at ¶ 28 (Hall,

J. dissenting).

       {¶ 39} For the reasons stated above, I cannot clearly and convincingly find that the

record does not support the trial court’s consecutive sentence findings. Therefore, I very

respectfully dissent from the majority and would affirm the trial court’s decision to impose

consecutive sentences in this matter.

                                         ..........
Copies mailed to:

Anu Sharma
Daniel E. Brinkman
Hon. Michael A. Buckwalter
