[Cite as State v. Taylor, 2020-Ohio-404.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-19-009

        Appellee                                 Trial Court No. 2018 CR 173

v.

Gregory Taylor                                   DECISION AND JUDGMENT

        Appellant                                Decided: February 7, 2020

                                            *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Gregory Taylor, appeals the judgment of the Wood County Court

of Common Pleas, convicting him of one count of trafficking in cocaine in violation of

R.C. 2925.03(A)(1) and (C)(4)(a), a felony of the fifth degree, and one count of

possessing criminal tools in violation of R.C. 2923.24(A) and (C), a felony of the fifth
degree, and sentencing him to a total prison term of 24 months. For the reasons that

follow, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} On May 3, 2018, the Wood County Grand Jury entered a three-count

indictment against appellant, charging him with one count of trafficking in cocaine in

violation of R.C. 2925.03(A)(1) and (C)(4)(a), a felony of the fifth degree, along with a

forfeiture specification, one count of possessing criminal tools in violation of R.C.

2923.24(A) and (C), a felony of the fifth degree, and one count of possession of cocaine

in violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree.

       {¶ 3} On October 30, 2018, appellant entered into a plea agreement with the state

whereby he agreed to plead guilty to the count of trafficking in cocaine and the count of

possessing criminal tools. In return, the state agreed to drop the forfeiture specification

and dismiss the count of possession of cocaine. After conducting a Crim.R. 11 plea

colloquy, the trial court accepted appellant’s plea and found him guilty. The trial court

continued the matter for preparation of a presentence investigation report.

       {¶ 4} At the sentencing hearing on December 18, 2018, appellant’s trial counsel

advocated for community control sanctions. Counsel noted that appellant has a job in

Monroe, Michigan, and is in an aftercare program through the Lucas County Correctional

Treatment Facility (“CTF”). Counsel stated that appellant has put in a lot of effort

through CTF, has recognized his drug problem, and is a different person because of it.




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       {¶ 5} Pursuant to its plea agreement, the state also recommended community

control sanctions.

       {¶ 6} Appellant then spoke on his own behalf. Appellant admitted that at the time

of the offense he was using cocaine and marijuana, and his mind was not right because of

it. Appellant explained that the CTF program has helped him greatly, and that he is now

working and attending AA meetings. Appellant accepted that he has made bad decisions

in his past, but states that his life is now on the right path, and he just wants the

opportunity to continue on that path.

       {¶ 7} Upon hearing the arguments in mitigation, the trial court recounted the

circumstances of the offense wherein appellant fled from the police and was not

forthright with them when he was apprehended. The trial court then examined

appellant’s lengthy criminal history, which spanned approximately 20 years, beginning

when appellant was a juvenile, and which included several commitments to the

Department of Youth Services, and multiple prison terms for receiving stolen property,

failure to comply, escape, felonious assault, and attempted carrying a concealed weapon.

Ultimately, the court ordered appellant to serve 12 months in prison on each count, and

ordered the sentences to be served consecutively for a total prison term of 24 months.

       {¶ 8} In announcing its sentence, the trial court stated that it considered the

principles and purposes of sentencing, as well as the seriousness and recidivism factors.

The court also made the requisite findings that consecutive sentences were necessary to

protect the public from future crime and to punish appellant, and that consecutive




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sentences were not disproportionate to the seriousness of the crime and to the danger that

appellant poses to the public. Further, the trial court found that appellant’s criminal

history demonstrated that consecutive sentences are necessary to protect the public from

future crime.

       {¶ 9} On December 19, 2018, the trial court journalized the judgment entry

memorializing appellant’s conviction and sentence.

                                 II. Assignment of Error

       {¶ 10} Appellant has timely appealed the trial court’s December 19, 2018

judgment, and now asserts one assignment of error for our review:

                1. The trial court did not comply with R.C. 2929.11 and R.C.

       2929.12 in sentencing appellant to a maximum consecutive term of twenty-

       four months in the Ohio Department of Rehabilitation and Corrections

       instead of ordering community control sanctions.

                                       III. Analysis

       {¶ 11} In his appeal, appellant argues that his total prison term of 24 months is

contrary to the principles and purposes of R.C. 2929.11, and is not supported by the

factors in R.C. 2929.12. Appellant is making the same argument as the defendant in

State v. Gwynne, Slip Opinion No. 2019-Ohio-4761. In that case, the defendant was

convicted of 46 felony counts. The trial court ordered all of the sentences to be served

consecutively for an aggregate sentence of 65 years. Id. at ¶ 5. On appeal, the Fifth

District held that consecutive sentences were warranted pursuant to R.C. 2929.14(C)(4),




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but nonetheless found that under R.C. 2929.11 and 2929.12 the aggregate sentence was

not supported by the record and did not comply with the principles and purposes of

sentencing. The appellate court further found that the aggregate sentence was excessive

and disproportionate to the conduct. Id. at ¶ 6. Thus, the appellate court vacated some of

the consecutive sentences, resulting in a new aggregate sentence of 15 years. Id.

       {¶ 12} On appeal, a plurality of the Ohio Supreme Court reversed the decision of

the Fifth District. The lead opinion in Gwynne recognized that R.C. 2953.08(G)(2)(a) is

the “exclusive means of appellate review of consecutive sentences,” and that R.C.

2929.11 and 2929.12 are not applicable to a review of consecutive sentences. Id. at

¶ 16-18. This view was shared by two other justices in a concurring opinion. See id. at

¶ 22 (Kennedy, J., concurring in judgment only) (“I agree with the lead opinion that * * *

R.C. 2953.08(G)(2) does not authorize a court of appeals to use R.C. 2929.11 and

2929.12 for purposes of reviewing a trial court’s consecutive-sentence findings.”). Thus,

the Ohio Supreme Court held that the Fifth District erred by reviewing the consecutive

sentences under R.C. 2929.11 and 2929.12, and that it should have examined the

consecutive sentences for compliance with R.C. 2929.14(C)(4).

       {¶ 13} The divide between the lead and concurring opinions in Gwynne revolved,

in part, around whether it was ever appropriate for an appellate court to review a trial

court’s application of R.C. 2929.11 and 2929.12. Regarding whether an appellate court

may review a trial court’s application of R.C. 2929.11 and 2929.12, the Ohio Supreme




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Court had unanimously stated in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231, ¶ 23,

             We note that some sentences do not require the findings that R.C.

      2953.08(G) specifically addresses. Nevertheless, it is fully consistent for

      appellate courts to review those sentences that are imposed solely after

      consideration of the factors in R.C. 2929.11 and 2929.12 under a standard

      that is equally deferential to the sentencing court. That is, an appellate

      court may vacate or modify any sentence that is not clearly and

      convincingly contrary to law only if the appellate court finds by clear and

      convincing evidence that the record does not support the sentence.

The lead opinion in Gwynne simply found that the quoted portion of Marcum did not

apply to the case before it because Marcum involved the appeal of a non-maximum

sentence for a single count. Gwynne at ¶ 15. The lead opinion recognized that R.C.

2929.11 and 2929.12 “both clearly apply only to individual sentences.” (Emphasis sic.)

Id. at ¶ 17. The concurring opinion in Gwynne, however, would have gone further and

said that R.C. 2953.08(G)(2) does not permit any review of the application of R.C.

2929.11 and 2929.12, and that paragraph 23 of Marcum was both flawed and dicta, and

should not be followed. Id. at ¶ 43 (Kennedy, J., concurring in judgment only).

      {¶ 14} In light of these decisions, we come to the following conclusions regarding

the standard by which we review felony sentences. Where the appellant challenges the

trial court’s imposition of consecutive sentences, we are bound to review the issue under




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R.C. 2953.08(G)(2)(a), and must affirm the trial court unless we clearly and convincingly

find “[t]hat the record does not support the sentencing court’s findings under division

* * * (C)(4) of section 2929.14.”

       {¶ 15} Where the appellant challenges the length of a particular term, regardless if

that term is ordered to run concurrently or consecutively to other sentences, we must first

determine if the trial court was required to make findings under R.C. 2929.13(B) or (D),

R.C. 2929.14(B)(2)(e), or R.C. 2929.20(I), and if so, whether we clearly and

convincingly determine that the record does not support those findings. R.C.

2953.08(G)(2)(a). If those sections are not relevant, we must then examine whether the

term is clearly and convincingly “otherwise contrary to law.” R.C. 2953.08(G)(2)(b). In

State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15, we

recognized that State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,

abrogated by Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 516, still can

provide guidance for determining whether a sentence is clearly and convincingly contrary

to law. Tammerine at ¶ 15. The Ohio Supreme Court in Kalish held that where the trial

court expressly stated that it considered the purposes and principles of sentencing in R.C.

2929.11 as well as the factors listed in R.C. 2929.12, properly applied postrelease control,

and sentenced the defendant within the statutorily permissible range, the sentence was not

clearly and convincingly contrary to law. Kalish at ¶ 18. Finally, if the term is not

otherwise contrary to law, we may vacate or modify the term only if we find by “clear

and convincing evidence that the record does not support the sentence” upon




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consideration of R.C. 2929.11 and 2929.12. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, at ¶ 23.

       {¶ 16} Applying those guidelines here, we do not clearly and convincingly find

that the record does not support the trial court’s findings relative to its imposition of

consecutive sentences. R.C. 2929.14(C)(4) requires a trial court to find

       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.




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              (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the offender.

Here, appellant’s lengthy and pervasive criminal history supports the trial court’s

conclusion that consecutive sentences are necessary to protect the public from future

crime, and are not disproportionate to the danger that appellant poses to the public.

       {¶ 17} Likewise, we find that the trial court did not err in imposing a 12-month

prison term on each count. In support of his assignment of error, appellant does not argue

that the trial court failed to make required findings, that it did not consider R.C. 2929.11

and 2929.12, that it improperly imposed postrelease control, or that his sentence was

outside of the statutorily permissible range. Thus, appellant has not demonstrated that his

sentence is contrary to law.

       {¶ 18} Further, applying the standard in Marcum, we also find that appellant has

not demonstrated through clear and convincing evidence that the record does not support

the trial court’s imposition of 12-month terms upon consideration of R.C. 2929.11 and

2929.12. Although appellant provided statements in mitigation that he has put in a lot of

effort through CTF, has recognized his drug problem, and has worked hard to overcome

his past and embark upon a new positive journey, the trial court implicitly found that

those factors were outweighed by the risk of recidivism demonstrated by appellant’s

lengthy criminal history. We find that the trial court’s determination is supported by

appellant’s 20-year criminal history, which began when appellant was a teenager.




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       {¶ 19} Accordingly, appellant’s assignment of error is not well-taken.

                                     IV. Conclusion

       {¶ 20} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Wood County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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