[Cite as State v. Davis , 2016-Ohio-7347.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 2-16-09

        v.

JAMARCUS TERRELL DAVIS,                                    OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2015-CR-151

                                       Judgment Affirmed

                            Date of Decision: October 17, 2016




APPEARANCES:

        Rob C. Wiesenmayer for Appellant

        Benjamin R. Elder for Appellee
Case No. 2-16-09


ROGERS, J.

       {¶1} Defendant-Appellant, Jamarcus Terrell Davis, appeals the judgment of

the Court of Common Pleas of Auglaize County convicting him of possession of

heroin, attempted possession of having a weapon while under a disability, and

illegal conveyance of cocaine into a jail and sentencing him to a total of 66 months

in prison. On appeal, Davis argues that the trial court erred in failing to consider

and apply the felony sentencing guidelines and sentencing him to a total prison term

that exceeded the maximum prison term allowed for the most serious offense of

which he was convicted. For the reasons that follow, we affirm the judgment of the

trial court.

       {¶2} On December 17, 2015, the Auglaize County Grand Jury returned a

five-count indictment against Davis charging him with one count of complicity to

trafficking in heroin in violation of R.C. 2923.03(A)(2) and 2925.03(A)(2),

(C)(6)(e), a felony of the fourth degree; one count of possession of heroin in

violation of R.C. 2925.11(A), (C)(6)(b), a felony of the fourth degree; one count of

possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a felony of the

fifth degree; one count of having a weapon while under disability in violation of

R.C. 2923.13(A)(2), a felony of the fourth degree; and one count of illegal

conveyance of cocaine into a jail in violation of R.C. 2921.36(A)(2), a felony of the

third degree. Davis entered pleas of not guilty to all charges.


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       {¶3} After a period of plea negotiations, an agreement was reached whereby

Davis agreed to enter a plea of guilty to one count of possession of heroin in

violation of R.C. 2925.11(A), (C)(6)(b), a felony of the fourth degree; one count of

attempted having a weapon while under a disability in violation of R.C. 2923.02

and 2923.13(A)(2), a felony of the fourth degree; and one count of illegal

conveyance of cocaine into a jail in violation of R.C. 2921.36(A)(2), a felony of the

third degree, in exchange for the State’s dismissal of the remaining charges and a

recommendation that Davis be sentenced to a total of 59 months in prison.

       {¶4} At the change of plea hearing, the State explained the facts underlying

the charges:

       On December 9th of 2015, the St. Marys Police Department received
       a call from the manager at America’s Best Value Inn located there is
       St. Marys, Auglaize County, State of Ohio, and reported that an
       individual identified as Alisha Hashman had rented room 231 and had
       been there for a couple of days and had just paid for a third day and
       that the management had noticed between five (5) and six (6) cars
       would pull up and go into room 231 and then leave after a very short
       period of time. This is the only room rented in this particular building
       at the time. Upon learning this information, Task Force set up
       observation on December 10th and observed Justin Yates and Alisha
       Hashman sitting in a silver Acura parked in front of room 231. The
       hotel had identified the Acura as being associated with the room.
       [Davis] was seen exiting room 231 and appeared to check the door to
       ensure that it was locked. The three (3) then got in the Acura and
       drove down to Dayton. The Task Force followed them to Dayton to
       an exit, Needmore Road, where they entered an apartment complex;
       were there for four (4) or (5) minutes then exited and returned heading
       northbound on 75. At one point shortly thereafter they turned around
       and went back to the apartment off Needmore Road for another five
       (5) or six (6) minutes roughly, then turned around and came back

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Case No. 2-16-09


           north on 75 returning into Auglaize County. The driver, at that time,
           was Alisha Hashman. She was under suspension and a stop was
           conducted of the vehicle at U.S. 33 and County Road 33 in Moulton
           Township, Auglaize County. The State of Ohio officers identified a
           strong odor of marijuana coming from the vehicle and the occupants
           were removed from the vehicle and patted down for the officers’
           safety. While the officers were conducting a pat down of [Davis], a
           grey powdery substance in a baggie fell out of his pant leg, which was
           later identified as 3.78 grams of heroin as tested by the Bureau, or
           BCI&I. Once the baggie fell out of his pants, he was then taken to the
           jail and interviewed; was asked if he had anything else on him at
           which point he did not represent anything about the cocaine. Once he
           was in the intake area, he was again searched and a baggie - another
           baggie fell out of his pant leg which was found to be cocaine,
           weighing 0.84 grams. A search was conducted pursuant to a search
           warrant of the hotel room, room 231, there in St. Marys at the
           America’s Best Value Inn. During that search, officers found a Uzi
           submachine gun 9 mm weapon with ammunition in a red bag. Inside
           the bag was a receipt from Verizon in the name of [Davis]. That
           weapon was tested by BCI&I and found to be operable in both the
           semi and fully automatic modes.

Feb. 29, 2016 Hrg., p. 20-22. Davis then admitted that he sold a few thousand

dollars’ worth of drugs per week and had purchased the gun from an affiliate of “the

Bloods” for his and his family’s protection.

           {¶5} A subsequent pre-sentence investigation report detailed Davis’s lengthy

criminal history, including multiple juvenile convictions, multiple misdemeanor

convictions, and one felony conviction. It also noted a ORAS-PIT score of “high

risk.”1




1
    This is an assessment designed to predict an offender’s likelihood of recidivism.

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Case No. 2-16-09


       {¶6} A few months later, a sentencing hearing was held, where the trial court

engaged in a lengthy colloquy with Davis about his criminal history. Then it stated,

       After consideration of the information provided to the Court by the
       parties, the [p]resentence [i]nvestigation, purposes and principles of
       felony sentencing under Section 2929.11 and the criteria set forth in
       Chapter 2929 of the Revised Code, noting [Davis’s] ORAS score of
       very high range specifically being thirty four [sic] (34), noting
       [Davis’s] prior repeat violence of, - offenses of violence, and noting
       the nature of the weapon being a [sic] automatic capable machine gun
       fully operable, the Court SENTENCES [Davis] as follows: as to
       COUNT II, POSSESSION OF HEROIN, a felony in the fourth
       degree, EIGHTEEN (18) MONTHS IN THE DEPARTMENT OF
       REHABILITATION AND CORRECTIONS * * *; as to AMENDED
       COUNT IV, ATTEMPTED POSSESSION OF A WEAPON UNDER
       DISABILITY, a felony of the fourth degree, EIGHTEEN (18)
       MONTHS; and as to COUNT V, A CHARGE OF ILLEGAL
       CONVEYANCE OF DRUGS INTO A JAIL, a felony of the third
       degree, THIRTY (30) MONTHS.

May 13, 2016 Hrg., p. 20-21.

       {¶7} The Court further stated

       that consecutive service 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 offender’s conduct and
       the danger the offender poses to the public, and * * * that the
       offender’s history of criminal conduct demonstrates that consecutive
       sentences are necessary to protect the public from future crime by the
       offender.

Id. at p. 21.

       {¶8} The trial court memorialized its decision by entry dated May 16, 2015.

In its entry, it reiterated



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      that the offender shall serve the prison terms consecutively, pursuant
      to R.C. 2929.14(C)(4), because 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 * * * the offender’s
      history of criminal conduct demonstrates that the consecutive
      sentences are necessary to protect the public from future crime by the
      offender.

(Docket No. 70, p. 2).

      {¶9} It is from this judgment that Davis appeals, presenting the following

assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT COMMITTED ERROR TO THE
      SUBSTANTIAL         PREJUDICE     OF      THE
      DEFENDANT/APPELLANT IN ENTERING CONVICTIONS
      AND IMPOSING CONSECUTIVE SENTENCES [SIC] WAS
      [SIC] CONTRARY TO LAW AND FURTHER CONSTITUTED
      AN ABUSE OF DISCRETION IN FAILING TO PROPERLY
      CONSIDER AND APPLY THE FELONY SENTENCING
      GUIDELINES SET FORTH IN OHIO REVISED CODE,
      SECTION 2929.22 AND 2929.12.

                           Assignment of Error No. II

      THE TRIAL COURT’S SENTENCE OF THE DEFENDANT-
      APPELLANT TO CONSECUTIVE SENTENCES THAT
      EXCEED THE MAXIMUM PRISON TERM ALLOWED FOR
      THE MOST SERIOUS OFFENSE OF WHICH DEFENDANT
      WAS CONVICTED [R.C. 2921.36(A)(2)].

      {¶10} Due to the nature of Davis’s assignments of error, we elect to address

them together.


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                          Assignments of Error Nos. I & II

       {¶11} In his first and second assignments of error, Davis argues that the trial

court erred in failing to consider the purposes and principles of sentencing in R.C.

2929.11 and the sentencing factors in R.C. 2929.12. Specifically, Davis argues that

those purposes, principles, and factors, do not support “imposing a consecutive

sentence including the maximum sentence for [possession of heroin] and [attempted

having a weapon while under a disability] * * *.” Appellant’s Brief, p. 11. Davis

further argues that the trial court erred in imposing a total prison term that exceeded

36 months, the maximum prison term for a third-degree felony. We disagree.

       {¶12} “A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record or otherwise contrary to law.” State v. Barrera, 3d Dist.

Putnam No. 12-12-01, 2012-Ohio-3196, ¶ 20. Clear and convincing evidence is that

“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.

       {¶13} R.C. 2929.11(A) provides, “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 and others and to punish the offender using the minimum sanctions


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that the court determines accomplish those purposes * * *.” “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.” State v. Davis, 3d Dist. Auglaize No.

2–11–06, 2011-Ohio-5441, ¶ 14, citing R.C. 2929.12(A)-(D). “[I]n addition, the

court may consider any other factors that are relevant to achieving the purposes and

principles of sentencing.” R.C. 2929.12(A).

       {¶14} “However, the trial court is not required to use specific language

regarding its consideration of the seriousness and recidivism factors.” State v.

Holbrook, 3d Dist. Auglaize No. 2-13-06, 2013-Ohio-3786, ¶ 10, citing State v.

Smith, 3d Dist. Auglaize No. 2–06–37, 2007–Ohio–3129, ¶ 26. There is also no

requirement in R.C. 2929.12 that the trial court state on the record that it has

considered those factors. Smith at ¶ 26, citing State v. Polick, 101 Ohio App.3d 428,

431 (4th Dist.1995).

       {¶15} Furthermore, 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:


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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.

R.C. 2929.14(C)(4)(c).

       {¶16} If a court imposes consecutive sentences, it “is required to make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate

its findings into its sentencing entry.” State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, ¶ 37. “The court should also include its statutory findings in the

sentencing entry because a court speaks through its journal.” State v. Noble, 3d

Dist. Logan No. 9-14-06, 2014-Ohio-5485, ¶ 13, citing Bonnell at ¶ 29. However,

the court need neither state its reasoning to support its findings nor must it provide

a ‘talismanic incantation’ of R.C. 2929.14(C)(4). Bonnell at ¶ 37.

       {¶17} Here, Davis argues that the “offenses were not the most serious form

of the offenses for which he was convicted, and therefore, the imposition of

maximum, consecutive sentences of imprisonment is not supported by the record.”

Appellant’s Brief, p. 10. Specifically, he argues that the factors listed in R.C.

2929.12(B) weigh in favor of a lesser sentence. He explains,

       The offense committed herein did not cause physical injury to any
       victim. No victim suffered any demonstrated or documented
       psychological harm as a result of the offense. The offender did not
       have an occupation, elected office or profession which facilitated him
       in the commission of the offenses. The offender’s personal reputation
       or occupation was not used to facilitate the commission of the offense.

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       Also, the record would suggest that [he] did not have any significant
       financial gain as a result of his actions in this matter.

Id.

       {¶18} While some of these factors may weigh in Davis’s favor, the trial court

was allowed to consider other relevant factors, such as Davis’s lengthy criminal

history and the type of weapon used in the commission of the offense. R.C.

2929.12(A)-(D). After stating that it had considered all of this information, the trial

court sentenced Davis to prison terms within the statutory ranges and made the

appropriate consecutive sentence findings under R.C. 2929.14(C)(4).

       {¶19} Davis also argues that the trial court erred in imposing a total prison

term that exceeded the maximum prison term for a third-degree felony, the most

serious offense of which he was convicted. In support, he cites R.C. 2953.08(C)(1),

which provides,

       [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. * * *

       {¶20} However, R.C. 2953.08(C)(1) applies only where consecutive

sentences are imposed under R.C. 2929.14(C)(3). R.C. 2929.14(C)(3) mandates

consecutive sentences in limited cases involving violations of R.C. 2911.01

(aggravated robbery), 2913.02 (theft), and 2921.331 (failure to comply). Davis was

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not convicted of any of these offenses, and therefore, R.C. 2953.08(C)(1) is

inapplicable.

         {¶21} Considering the trial court considered the appropriate statutes, made

the appropriate findings, and there was evidence in the record to support its findings,

Davis has failed to prove by clear and convincing evidence that his sentence is

unsupported by the record or otherwise contrary to law.

         {¶22} Accordingly, we overrule Davis’s first and second assignments of
error.

         {¶23} Having found no error prejudicial to the Davis, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

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

/jlr




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