[Cite as State v. Coffman, 2016-Ohio-4781.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :     JUDGES:
                                              :     Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :     Hon. John W. Wise, J.
                                              :     Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
ERIC D. COFFMAN                               :     Case No. 15-COA-042
                                              :
        Defendant-Appellant                   :     OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 15-CRI-126




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   June 30, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

CHRISTOPHER R. TUNNELL                              ERIN N. POPLAR
110 Cottage Street                                  DANIEL D. MASON
3rd Floor                                           103 Milan Avenue
Ashland, OH 44805                                   Suite 6
                                                    Amherst, OH 44001
Ashland County, Case No. 15-COA-042                                                     2

Farmer, P.J.

       {¶1}    On September 16, 2015, appellant, Eric Coffman, pled guilty pursuant to a

bill of information to one count of domestic violence in violation of R.C. 2919.25 and one

count of tampering with evidence in violation of R.C. 2921.12. By judgment entry filed

October 30, 2015, the trial court sentenced appellant to thirty-six months on the domestic

violence count and thirty months on the tampering count, to be served consecutively for

a total aggregate term of sixty-six months in prison.

       {¶2}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶3}    "THE TRIAL COURT ERRED WHEN IT IMPOSED THE MAXIMUM

PRISON TERM FOR THE OFFENSE OF THE HIGHEST DEGREE OF OFFENSE AND

APPELLANT'S OFFENSES AROSE OUT OF A SINGLE INCIDENT."

                                             II

       {¶4}    "THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

SENTENCES FOR TWO THIRD DEGREE FELONIES SUCH THAT THE AGGREGATE

SENTENCE EXCEEDED THE MAXIMUM PRISON TERM ALLOWED BY OHIO

REVISED CODE 2929.14(A) FOR THE MOST SERIOUS OFFENSE OF WHICH THE

APPELLANT WAS CONVICTED."

                                            III

       {¶5}    "THE TRIAL COURT ERRED IN ORDERING CONSECUTIVE PRISON

SENTENCES        AS THE      IMPOSITION OF SUCH SENTENCES                  PLACES     AN

UNNECESSARY BURDEN ON STATE RESOURCES."
Ashland County, Case No. 15-COA-042                                                          3


                                           I, II, III

      {¶6}   Appellant claims the trial court erred in sentencing him.            Specifically,

appellant claims the trial court erred in imposing a maximum prison term on the domestic

violence count, the aggregate term exceeded the maximum prison term as permitted

under R.C. 2929.14(A), and the consecutive service places an unnecessary burden on

state resources. We disagree.

      {¶7}   Pursuant to the Supreme Court of Ohio's recent holding in State v. Marcum,

___ Ohio St.3d ___, 2016-Ohio-1002, ¶ 7, this court will review a felony sentence using

the standard set forth in R.C. 2953.08, and will no longer apply the abuse of discretion

standard under State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. R.C. 2953.08

governs appeals based on felony sentencing guidelines. Subsection (G)(2) sets forth this

court's standard of review as follows:



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

      section shall review the record, including the findings underlying the

      sentence or modification given by the sentencing court.

             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:
Ashland County, Case No. 15-COA-042                                                      4


                (a) That the record does not support the sentencing court's findings

       under division (B) or (D) of section 2929.13, division (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.



       {¶8}     "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." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶9}     Subsections (A)(1) and (C)(1) of R.C. 2953.08 provide the following,

respectively:



                (A) In addition to any other right to appeal and except as provided in

       division (D) of this section, a defendant who is convicted of or pleads guilty

       to a felony may appeal as a matter of right the sentence imposed upon the

       defendant on one of the following grounds:

                (1) The sentence consisted of or included the maximum prison term

       allowed for the offense by division (A) of section 2929.14 or section

       2929.142 of the Revised Code, the maximum prison term was not required

       for the offense pursuant to Chapter 2925. or any other provision of the
Ashland County, Case No. 15-COA-042                                                       5


       Revised Code, and the court imposed the sentence under one of the

       following circumstances:

                 (a) The sentence was imposed for only one offense.

                 (b) The sentence was imposed for two or more offenses arising out

       of a single incident, and the court imposed the maximum prison term for the

       offense of the highest degree.

                 (C)(1) In addition to the right to appeal a sentence granted under

       division (A) or (B) of this section, a defendant who is convicted of or pleads

       guilty to a felony may seek leave to appeal a sentence imposed upon the

       defendant on the basis that the sentencing judge has imposed consecutive

       sentences under division (C)(3) of section 2929.14 of the Revised Code and

       that the consecutive sentences exceed the maximum prison term allowed

       by division (A) of that section for the most serious offense of which the

       defendant was convicted. Upon the filing of a motion under this division,

       the court of appeals may grant leave to appeal the sentence if the court

       determines that the allegation included as the basis of the motion is true.



       {¶10} R.C. 2929.11 governs overriding purposes of felony sentences and states

the following:



                 (A) A court that sentences an offender for a felony shall be guided by

       the overriding purposes of felony sentencing. The overriding purposes of

       felony sentencing are to protect the public from future crime by the offender
Ashland County, Case No. 15-COA-042                                                      6


       and others and to punish the offender using the minimum sanctions that the

       court determines accomplish those purposes without imposing an

       unnecessary burden on state or local government resources. To achieve

       those purposes, the sentencing court shall consider the need for

       incapacitating the offender, deterring the offender and others from future

       crime, rehabilitating the offender, and making restitution to the victim of the

       offense, the public, or both.

              (B) A sentence imposed for a felony shall be reasonably calculated

       to achieve the two overriding purposes of felony sentencing set forth in

       division (A) of this section, commensurate with and not demeaning to the

       seriousness of the offender's conduct and its impact upon the victim, and

       consistent with sentences imposed for similar crimes committed by similar

       offenders.

              (C) A court that imposes a sentence upon an offender for a felony

       shall not base the sentence upon the race, ethnic background, gender, or

       religion of the offender.



       {¶11} 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
Ashland County, Case No. 15-COA-042                                                        7


       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.



       {¶12} Appellant pled guilty to two counts, both felonies in the third degree.

Pursuant to R.C. 2929.14(A)(3)(b), felonies of the third degree are punishable by "nine,

twelve, eighteen, twenty-four, thirty, or thirty-six months." By judgment entry filed October

30, 2015, the trial court sentenced appellant to thirty-six months on the domestic violence

count, the maximum, and thirty months on the tampering count, less than the maximum,

to be served consecutively, for an aggregate term of sixty-six months in prison.
Ashland County, Case No. 15-COA-042                                                    8


       {¶13} Appellant first argues he should not have been sentenced to the maximum

sentence of thirty-six months on the domestic violence count because the facts do not

warrant such a sentence. The bill of information filed on September 15, 2015 indicates

appellant had two previous convictions for domestic violence, both in 2011. During the

sentencing hearing on October 26, 2015, the trial court noted it received and reviewed a

presentence investigation report. October 26, 2015 T. at 3. The prosecutor summarized

the report as follows (Id. at 5-7):



              Your Honor, this Defendant's record is atrocious by anyone's

       standards. Seven convictions as a Juvenile between '93 and '95. As an

       adult, he has a significant history in the State of Ohio per the PSI and also

       indicates that he went to Missouri which results in the gap of '98 to '02,

       otherwise, he has steady convictions from '96 on. It's a significant history

       when one looks at the number of assaults and aggravated menacing in

       there and the domestic violence begins in June of 2011, although there is

       one that was pled down from a DV to disorderly earlier.

              And then he picks up the felony domestic in October of 2011, just

       months after the misdemeanor. Interestingly enough, and eerily similar to

       this case, that 2011 felony case included attempted tampering with

       evidence. Which shouldn't escape anyone's notice here in 2014, if you want

       any idea what he thinks of Court's Orders, he was convicted of violating a

       Temporary Protection Order.
Ashland County, Case No. 15-COA-042                                                       9


              The Defendant's most recent probation stent in Muni Court resulted

       in a 2015 violation for drugs, positive drug tests.

              This is a Defendant who is absolutely dangerous, especially to

       women, he's a violent offender, and in the current case, absolutely attacked

       this woman. As far as the record in a domestic violence type scenario goes,

       the State's opinion that would constitute the worst form of that offense and

       honestly if there is a worst form of a tampering, he qualifies for that as well.

              Going so far as to orchestrate the cleaning of blood in the residence

       in multiple rooms, and then spiriting away various items of evidence, towels,

       sheets, and I guess a sexual apparatus, I would say, that is alleged to have

       been used to sexually assault the victim as part of this.

              Which all of which hampers the ability of law enforcement to

       investigate what truly happened in that apartment.

              This Defendant's serious factors, he did cause serious physical harm

       to the victim and the relationship did facilitate the offense.



       {¶14} Our review of the lengthy presentence investigation report filed under seal

substantiates appellant's violent acts inflicted upon the victim, causing her serious

physical harm, his lengthy criminal record including previous convictions for violent acts,

and his propensity to violate court orders e.g., violating temporary protection order and

probations violations.

       {¶15} Following the prosecutor's summary, the trial court explained the factors set

forth in R.C. 2929.11, and noted the following (Id. at 8-9):
Ashland County, Case No. 15-COA-042                                                      10




                 The Court has considered and weighed the various factors that must

          be considered and weighed, and those delineated in the Pre-Sentence

          Investigation Report, and you have an extremely poor history of supervision,

          this was an offense in Count 1, I think it was significant violence.

                 The Court clearly finds that you are not amenable to Community

          Control Sanctions based on your history, and the fact that you have

          received consecutive sentencings back in 2011 on the 11-CRI-120 case,

          they were not necessarily as severe as what your potential is in this case,

          but similar charges, and the Court imposed consecutive sentencings at that

          time, and here we are almost exactly four years later since that offense.



          {¶16} Given appellant's violent acts he inflicted upon the victim causing her

serious physical harm and his lengthy criminal record which includes previous acts of

violence, we do not find clear and convincing evidence that the maximum sentence on

the domestic relations count imposed by the trial court falls under R.C. 2953.08(G)(2)(a)

or (b).

          {¶17} Appellant next argues the aggregate sentence of sixty-six months exceeded

the maximum for the highest offense charged, thirty-six months. In sentencing appellant

to consecutive sentences, the trial court stated the following (October 26, 2015 T. at 10-

11):
Ashland County, Case No. 15-COA-042                                                    11


              ***I am finding that consecutive service of these two sentencings are

       necessary to both protect the public from future crimes and to impose

       punishment.

              I am finding that consecutive sentencings are not disproportionate to

       the seriousness of your conduct in this case, Mr. Coffman, and the danger

       that you pose to the public, not only based on your history, but your lack of

       compliance while subject to supervision and the violent nature of the

       offenses themselves, and I am finding that you committed the offense while

       subject to supervision or under Community Control, and I am finding that

       your history of criminal conduct demonstrates that consecutive sentences

       are necessary to protect the public from future crime.



       {¶18} The trial court echoed these findings in its judgment entry filed October 30,

2015, thereby complying with State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

syllabus.   The trial court complied with R.C. 2929.14(C)(4) in ordering consecutive

service.

       {¶19} As for appellant's R.C. 2953.08(C)(1) argument that the aggregate term

exceeds the maximum for the highest offense charged, we concur with our brethren from

the Tenth District in State v. Haines, 10th Dist. Franklin No. 98AP195, 1998 WL 767438

(Oct. 29, 1998), *6-7:



              Additionally, the right to appeal a sentence under R.C. 2953.08(C)

       does not mean that consecutive sentences for multiple convictions may not
Ashland County, Case No. 15-COA-042                                                      12


       exceed the maximum sentence allowed for the most serious conviction. To

       so construe the statute would demean the sentencing process to the point

       that it would permit one person to receive a maximum sentence for

       committing one felony while allowing another person to receive only the

       same maximum sentence for committing one hundred similar felonies.

       While the right to appeal may be granted if the conditions of R.C.

       2953.08(C) are met, such right to appeal does not limit the court's ability to

       impose consecutive sentences.

              R.C. 2929.14(E)(5) states that when "consecutive prison terms are

       imposed pursuant to division (E)(1), (2), (3), or (4) of this section, the term

       to be served is the aggregate of all of the terms so imposed." The statutory

       authority to impose consecutive sentences "does not in any way restrict or

       limit the aggregate term of incarceration that a trial court can impose". R.C.

       2953.08(C) provides "no basis to limit the aggregate term of consecutively-

       imposed criminal sentences." State v. Albert (Nov. 13, 1997), Cuyahoga

       App. No. 72677, unreported.



       {¶20} We do not find clear and convincing evidence that the aggregate sentence

imposed by the trial court falls under R.C. 2953.08(G)(2)(a) or (b).

       {¶21} Lastly, appellant argues the consecutive service places an unnecessary

burden on state resources. The record indicates appellant has a lengthy criminal record

including convictions involving violent acts, and a propensity to violate court orders.

Appellant has committed probation violations necessitating hearings, resentencing, and
Ashland County, Case No. 15-COA-042                                                  13


prison time, which has placed a burden on local government resources. This supports

the argument in favor of a prison sentence. Based upon the facts in this case, we find

the least impact on local and state government resources would be imprisonment. We

find no evidence to indicate the sentence in this case is an unnecessary burden on state

resources.

       {¶22} Upon review, we do not find clear and convincing evidence under R.C.

2953.08(G)(2)(a) or (b) that the trial court erred in sentencing appellant.

       {¶23} Assignments of Error I, II, and III are denied.
Ashland County, Case No. 15-COA-042                                          14


      {¶24} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.




SGF/sg 613
