[Cite as State v. Rose, 2018-Ohio-4469.]




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




STATE OF OHIO,
                                                          CASE NO. 6-18-08
       PLAINTIFF-APPELLEE,

       v.

JOSHUA ALAN ROSE,                                         OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Hardin County Common Pleas Court
                            Trial Court No. 20162168CRI

                                      Judgment Affirmed

                           Date of Decision: November 5, 2018



APPEARANCES:

        Michael B. Kelley for Appellant

        Jason M. Miller for Appellee
Case No. 6-18-08


WILLAMOWSKI, P.J.

         {¶1} Defendant-appellant Joshua A. Rose (“Rose”) brings this appeal from

the judgment of the Hardin County Court of Common Pleas sentencing him to

consecutive sentences. Rose claims on appeal that the record does not support the

imposition of consecutive sentences. For the reasons set forth below, the judgment

is affirmed.

         {¶2} On May 4, 2017, Rose and the State reached a negotiated plea

agreement in which Rose agreed to enter guilty pleas to one count of Grand Theft

and two counts of Burglary. Doc. 37. The agreement also had a joint sentencing

recommendation of consecutive sentences for an aggregate sentence of seven years

in prison. Id. Instead of imposing the agreed sentence, the trial court imposed an

aggregate sentence of 8 ½ years in prison. Id. However, the trial court failed to

make the statutorily required findings to impose consecutive sentences. Rose

appealed from the sentence and this court reversed the sentence and remanded it for

resentencing. State v. Rose, 3d Dist. Hardin No. 6-17-08, 2017-Ohio-8435.

         {¶3} On May 24, 2018, the trial court held a new sentencing hearing. Doc.

67 At the hearing, the trial court imposed the same sentence.1 Id. However, this

time, the trial court made the following statements.



1
  This Court notes that although the trial court states that it is accepting the jointly recommended sentence, it
did not do so. By accepting the recommendation but having “modified it slightly”, the trial court is actually
rejecting the recommended sentence and imposing its own sentence. Tr. 28. The trial court has every right
to impose its own sentence, thus the incorrect statement would not be grounds for reversal.

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Case No. 6-18-08


       Concerning the consecutive nature of sentencing, the Court does
       find that consecutive sentencing is necessary to protect the public
       from future crime and to punish the offender, and that
       consecutive sentences are not disproportionate to the seriousness
       of the Defendant’s conduct, and the danger that the offender
       poses to the public. The Court further finds very specifically that
       two or more of the multiple offenses before the Court were
       committed as the [sic] part of one or more courses of conduct, and
       that the harm caused by the two or more multiple offenses is so
       great or so unusual that no single prison term for any of the
       offenses would adequately protect the public, and reflect the
       seriousness of the offender’s conduct. The Court further finds
       that the offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary. The Defendant has been, as
       an adult, convicted of a felony of the fourth degree, trespass in a
       habitation when a person is present or likely to be present.
       Further, the Court finds that as an adult the Defendant has been
       convicted of a theft offense, being receiving stolen property as a
       misdemeanor. So the Court finds that both of those lead the
       Court to believe that your history of criminal conduct does
       provide that consecutive sentencing is necessary to protect the
       public from future crime by you.

Tr. 30-31. The trial court also ordered that this sentence be served consecutive to a

sentence in a separate case. Doc. 67. Rose appeals from this sentence and raises

the following assignment of error.

       [Rose’s] sentence is both contrary to law and an abuse of
       discretion as the trial court sentenced [Rose] to consecutive
       sentences having stated that it considered all of the required
       factors, but having a complete lack of facts to support the claimed
       findings under [R.C. 2929.11 and 2929.12], and the appeals court
       can clearly and convincingly find that the record does not support
       the sentencing court’s findings under [R.C. 2929.13(B), (D)],
       [R.C. 2929.14(B)(2)(e), (C)(4)], or [R.C. 2929.20(I)], whichever, if
       any, is relevant, and should reduce [Rose’s] sentence accordingly
       pursuant to [R.C. 2953.08(G)(2)].



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Case No. 6-18-08


       {¶4} The sole issue on appeal is whether the trial court properly imposed

consecutive sentences. This court has previously held that trial courts have full

discretion to impose any prison sentence within the statutory range as long as they

consider the purposes and principles of felony sentencing and the seriousness and

recidivism factors. State v. Golden, 3d Dist. Logan No. 8-17-41, 2018-Ohio-1253,

¶ 3. Rose challenges the trial court’s use of the sentencing factors set forth in R.C.

2929.11 and 2929.12. “Although the trial court is required to consider the factors

set forth in [R.C. 2929.11 and 2929 .12], the trial court is not required to either

discuss the factors on the record or even to state that the factors were considered on

the record as long as the record is sufficient for a court to determine that the

consideration occurred.” State v. Hall, 3d Dist. Auglaize No. 2-10-37, 2011-Ohio-

2609, ¶ 5.

       R.C. 2929.11 provides that sentences for a felony shall be guided
       by the overriding purposes of felony sentencing: “to protect the
       public from future crime by the offender and others and to punish
       the offender.” R.C. 2929.11(A). In order to comply with those
       purposes and principles, R.C. 2929.12 instructs a trial court to
       consider various factors set forth in the statute relating to the
       seriousness of the conduct and to the likelihood of the offender's
       recidivism. R.C. 2929.12(A) through (D). In addition, a trial court
       may consider any other factors that are relevant to achieving the
       purposes and principles of sentencing. R.C. 2929.12(E).

State v. Alselami, 3d Dist. Hancock No. 5-11-31, 2012-Ohio-987, ¶ 22.

       {¶5} Here, Rose was convicted of one third degree felony and two second

degree felonies. All of the sentences imposed were within the statutory range. See


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Case No. 6-18-08


R.C. 2929.14. The next question then is whether the trial court considered the

statutory factors. The trial court specifically indicated that it had considered the

purposes and principles of sentencing, which are set forth in R.C. 2929.11. Tr. 24.

The trial court noted that there were multiple victims and that the victims were all

elderly. Tr. 25. The trial court also noted that none of the less serious factors were

applicable. Tr. 25. As to recidivism, the trial court noted that Rose had a history of

criminal convictions as an adult, including a prior felony for which Rose had served

community control. Tr. 25. The trial court then determined that Rose had not

expressed genuine remorse for his offenses. Tr. 25-26. Based upon the facts known

to the trial court, the trial judge found that Rose was likely to commit future crimes.

Tr. 26. The trial court clearly considered the statutory factors. There is some

competent, credible evidence in the record to support the conclusions of the trial

court.

         {¶6} The next issue that must be addressed is whether the trial court properly

imposed consecutive sentences.

         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

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Case No. 6-18-08


         sanction imposed pursuant to [R.C. 2929.16, 2929.17, or 2929.18]
         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.

R.C. 2929.14(C)(4). “When imposing consecutive sentences, a trial court must state

the required findings as part of the sentencing hearing and by doing so it affords

notice to the offender and to defense counsel.” State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, ¶ 29, 16 N.E.3d 659.

         {¶7} A review of the record in this case shows that the trial court made all of

the findings required by the statute at the hearing and again stated them in the journal

entry.

         The Court finds that consecutive sentencing 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. The Court further 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 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; further, that the offender’s history of
         criminal conduct demonstrates that consecutive sentences are
         necessary to protect the public from future crime by the offender.

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Doc. 67 at 4. Since the sentences were within the statutory range, the trial court

considered the statutory factors, there was evidence to support the trial court's

conclusions regarding the factors, and the trial court made the statutorily required

findings to impose consecutive sentences, the trial court did not err when imposing

the sentences. The assignment of error is overruled.

       {¶8} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Hardin County Court of Common Pleas is affirmed.

                                                               Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls




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