[Cite as State v. Beall, 2020-Ohio-4099.]




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


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 5-19-44

        v.

MICHAEL L. BEALL,                                        OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 5-19-45

        v.

MICHAEL L. BEALL,                                        OPINION

        DEFENDANT-APPELLANT.


                Appeals from Hancock County Common Pleas Court
                 Trial Court Nos. 2018 CR 0211 and 2017 CR 0372

     Judgments Affirmed in Part, Reversed in Part and Causes Remanded

                             Date of Decision: August 17, 2020



APPEARANCES:

        Brian A. Smith for Appellant

        Steven M. Powell for Appellee
Case Nos. 5-19-44, 5-19-45


ZIMMERMAN, J.

        {¶1} Defendant-appellant, Michael L. Beall (“Beall”) appeals the November

8, 2019 and November 22, 2019 judgment entries of sentencing of the Hancock

County Common Pleas Court. For the reasons that follow, we affirm in part and

reverse in part.

        {¶2} On November 28, 2017, the Hancock County Grand Jury indicted Beall

on a single criminal count of domestic violence in violation of R.C. 2919.25(A), a

fourth-degree felony.1 (Case No. 2017 CR 00372, Doc. No. 1).

        {¶3} On December 6, 2017, Beall appeared for arraignment and entered a

plea of not guilty. (Case No. 2017 CR 00372, Doc. No. 7).

        {¶4} On July 10, 2018, the Hancock County Grand Jury indicted Beall in a

new case on three criminal counts including: Count One of intimidation of victim

in criminal case in violation of R.C. 2921.04(B)(1), a third-degree felony; Count

Two of domestic violence in violation of R.C. 2919.25(A), a fourth-degree felony;

and Count Three of resisting arrest in violation of R.C. 2921.33(A), a second-degree

misdemeanor.2 (Case No. 2018 CR 00211; Doc. No. 1)

        {¶5} On August 13, 2018, Beall withdrew his pleas of not guilty and entered

guilty pleas, pursuant to a plea agreement with the State to domestic violence in case


1
  The alleged victim is Beall’s fiancé and the mother of his two minor children. (Case No. 2017 CR 00372,
Doc. Nos. 1, 56).
2
  The case sub judice involves the same victim as in case number 2017 CR 00372. (Case No. 2018 CR 00211,
Doc. Nos. 1, 11).

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Case Nos. 5-19-44, 5-19-45


number 2017 CR 00372 and to domestic violence in case number 2018 CR 00211.

(Case No. 2017 CR 00372, Doc. Nos. 59, 65); (Case No. 2018 CR 00211, Doc. Nos.

16, 22). Specifically, in exchange for his guilty pleas, the State agreed to dismiss

Counts One and Three in case number 2018 CR 00211. (Case No. 2018 CR 00211,

Doc. Nos. 16, 22, 25). The trial court accepted Beall’s guilty pleas and ordered the

preparation of a PSI. (Case No. 2017 CR 00372, Doc. No. 65); (Case No. 2018 CR

00211, Doc. No. 22).

       {¶6} On November 1, 2018, the trial court sentenced Beall to five years of

community control sanctions in both of his cases. (Case No. 2017 CR 00372, Doc.

No. 69); (Case No. 2018 CR 00211, Doc. No. 27). Importantly, the sentencing

entries specifically informed Beall that, if he failed to complete the term of

community control, the trial court reserved 16 months in prison as to Count One in

case number 2017 CR 00372 and 18 months in prison at to Count Two in case

number 2018 CR 00211. (Case No. 2017 CR 00372, Doc. No. 69); (Case No. 2018

CR 00211, Doc. No. 27). Further, the sentencing entries “[ordered] that th[ese]

reserved sentence[s] shall be served consecutively, one after the other, with the

reserved prison term[s] imposed by this Court, this date, [in case numbers 2017 CR

00372 and 2018 CR 00211,] for a total reserve prison term of thirty-four (34) months

in prison.” (Id.); (Id.). The entries were filed on November 27, 2018. (Case No.

2017 CR 00372, Doc. Nos. 69, 70); (Case No. 2018 CR 00211, Doc. Nos. 27, 28).


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        {¶7} On February 19, 2019, Beall’s probation officer submitted a request to

execute the deferred community control sanction asserting that Beall failed to abide

by the terms of his conditions of supervision by using a mood-altering substance

and failing to obtain a diagnostic assessment in his county of residency, which the

trial court ultimately granted. (Case No. 2017 CR 00372, Doc. No. 84); (Case No.

2018 CR 00211, Doc. No. 42). Beall was ordered to commence serving a seven-

day term of electronic home monitoring (“EHM”) beginning on February 19, 2019

through February 26, 2019. (Id.); (Id.). On February 26, 2019, Beall’s probation

officer submitted a second request to execute the deferred community control

sanction averring that Beall failed to abide by the terms of his conditions of

supervision related to EHM under the terms outlined in the trial court’s order of

February 19, 2019. (Case No. 2017 CR 00372, Doc. No. 87); (Case No. 2018 CR

00211, Doc. No. 45). Consequently, the trial court ordered Beall to serve a seven-

day extension of EHM as a result of his failure to abide by this condition of his

supervision. (Id.); (Id.).

        {¶8} On September 9, 2019, the Adult Probation Department notified that

trial court that Beall may have violated a general condition of supervision and

several community-non-residential sanctions.3 (Case No. 2017 CR 00372, Doc.



3
 Specifically, while being arrested on a bench warrant arising out of Findlay Municipal Court, Beall tested
positive for use of methamphetamines, amphetamines, THC, and fentanyl. (Oct. 7, 2019 Tr. at 4, Doc. No.
82). Beall also failed to obtain his diagnostic assessment and was deemed non-compliant and discharged

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Case Nos. 5-19-44, 5-19-45


Nos. 89); (Case No. 2018 CR 00211, Doc. No. 46). On October 17, 2019, the trial

court held a revocation hearing wherein Beall waived an evidentiary hearing and

entered an admission to violating his community control sanctions. (Oct. 17, 2019

Tr. at 5-10, Doc. No. 83); (Case No. 2017 CR 00372, Doc. No. 97); (Case No. 2018

CR 00211, Doc. No. 54). Thereafter, the trial court determined that Beall violated

the terms of his community control sanctions, revoked his community control, and

sentenced Beall to 16 months in prison on Count One in case number 2017 CR

00372 and 18 months in prison on Count Two in case number 2018 CR 00211. (Oct.

17, 2019 Tr. at 28, Doc. No. 83); (Id.); (Id.). Moreover, the trial court ordered that

the prison terms be served consecutive to one another for an aggregate term of 34

months in prison. (Id.); (Id.); (Id.). The judgment entry in case number 2017 CR

00372 was filed on November 8, 2019, and the judgment entry in case number 2018

CR 00211 was filed on November 22, 2019. (Case No. 2017 CR 00372, Doc. No.

97); (Case No. 2018 CR 00211, Doc. No. 54).

        {¶9} Beall filed his notices of appeal in both cases on December 6, 2019,

which have been consolidated for the purpose of this appeal. (Case No. 2017 CR

00372, Doc. No. 102); (Case No. 2018 CR 00211, Doc. No. 58). He raises two

assignments of error for our review. We will begin by addressing Beall’s first

assignment of error followed by his second assignment of error.


from services as a result of missing his scheduled appointments. (Case No. 2017 CR 00372, Doc. No. 89);
(Case No. 2018 CR 00211, Doc. No. 46). (Oct. 7, 2019 Tr. at 4, Doc. No. 82).

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Case Nos. 5-19-44, 5-19-45


                              Assignment of Error I

       Because the trial court did not state the required findings under
       R.C. 2929.14(C)(4) to impose consecutive sentences at Appellant’s
       sentencing hearing, the trial court’s sentence was contrary to law.

       {¶10} In his first assignment of error, Beall argues that the trial court erred

by imposing consecutive sentences. Specifically, Beall argues that the trial court

did not state the required findings under R.C. 2929.14(C)(4) on the record at the

October 17, 2019 sentencing hearing, and thus, his consecutive sentences are

contrary to law.

                                Standard of Review

       {¶11} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. See State v. Jung, 8th Dist. Cuyahoga No. 105928, 2018-Ohio-1514, ¶ 14

(applying the standard of review set forth in R.C. 2953.08(G)(2) to review a

sentence imposed after the defendant’s community control was revoked). See also

State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, ¶ 11, (concluding that a

community-control-revocation hearing is a sentencing hearing for the purposes of

R.C. 2929.19(A) and Crim.R. 32(A)(1)). Clear and convincing evidence is that

“‘which will produce in the mind of the trier of facts a firm belief or conviction as


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Case Nos. 5-19-44, 5-19-45


to the facts sought to be established.’” Marcum at ¶ 22, quoting Cross v. Ledford,

161 Ohio St. 469 (1954), paragraph three of the syllabus.

                                       Analysis

       {¶12} According to R.C. 2929.14(C)(4), separate prison terms for multiple

offenses may be ordered to be served consecutively if the court finds it 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

factors in R.C. 2929.14(C)(4)(a)-(c) are present:

       (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.

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

       {¶13} Revised Code 2929.14(C)(4) requires the trial court to make specific

findings on the record when imposing consecutive sentences. State v. Hites, 3d Dist.

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Case Nos. 5-19-44, 5-19-45


Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No.

7-12-24, 2013-Ohio-3398, ¶ 33.         Specifically, the trial court must find: (1)

consecutive sentences are necessary to either protect the public or punish the

offender; (2) the sentences would not be disproportionate to the offense committed;

and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

         {¶14} The trial court must state the required findings at the sentencing

hearing when imposing consecutive sentences and incorporate those findings into

the sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and is not

“required to give a talismanic incantation of the words of the statute, provided that

the necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

         {¶15} Relevant to this discussion and at the October 17, 2019 sentencing

hearing, the following exchange occurred in open court between the trial judge and

Beall.

               [Trial Court]:       And in the 2018 CR 211 case, I’m going

                                to order that the 18-month sentence that was

                                reserved be imposed. Again, finding that the

                                imposition of a prison sentence is now


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Case Nos. 5-19-44, 5-19-45


                             consistent a [sic] the principles and purpose

                             of sentencing.

                                Further, pursuant to the prior agreements

                             of the parties and the sentencing entry in 2018

                             CR 211, I am going to order that those

                             sentences run consecutively, one after the

                             other, for a total aggregate prison sentence of

                             34 months.

                                It was jointly-recommended consecutive

                             sentence. I don’t believe I need to make

                             findings. However, certainly under 2929.14,

                             as I’ve already discussed, they are offenses of

                             violence. The 218 [sic] case occurred while

                             you were on bond in the 2017 case.

                                And again, they are offense of violence

                             against the same victim and you have failed

                             to avail yourself of the community control

                             that we have offered you.

                                I think clearly under R.C. 2929.14(C), the

                             record reflects that the necessary findings


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Case Nos. 5-19-44, 5-19-45


                                could be made and the court makes those

                                findings      for   purposes   of    imposing

                                consecutive sentences.

(Oct. 17, 2019 Tr. at 28-29, Doc. No. 83).

       {¶16} We are not able to find support in the record for the proposition that

there was a joint-sentencing recommendation made to the trial court as to

consecutive sentences. (Aug. 13, 2018 Tr. at 3-4, Doc. No. 80); (Nov. 1, 2018 Tr.

at 27, Doc. No. 81); (Oct. 17, 2019 Tr. at 28-29, Doc. No. 83); (Case No. 2017 CR

00372, Doc. Nos. 59, 65, 69, 97); (Case No. 2018 CR 00211, Doc. Nos. 16, 22, 25,

27, 54). However, notwithstanding this determination, the trial court did make

alternative findings as to factors it considered in imposing consecutive sentences.

(Oct. 17, 2019 Tr. at 28-29, Doc. No. 83). Specifically, the trial court alluded to

factors relative to the offenses being offenses of violence and involving the same

victim; however neither of these factors are enumerated factors under R.C.

2929.14(C)(4)(a)-(c).    (Oct. 17, 2019 Tr. at 28-29, Doc. No. 83).               See

2929.14(C)(4)(a)-(c). Nevertheless, the trial court did state that Beall was convicted

of an offense (in case number 2018 CR 00372) while he was out on bond in case

number 2017 CR 00211. (Id.). See R.C. 2929.14(C)(4)(a).

       {¶17} Even if we were to conclude that the trial court’s limited discussion

related to R.C. 2929.14(C)(4)(a) was sufficient, the trial court made no statements


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Case Nos. 5-19-44, 5-19-45


relative to the protection of the public, the punishment of the offender, or the

proportionality of the seriousness of the offender’s conduct as required under R.C.

2929.14(C)(4) at the October 17, 2019 sentencing hearing.4 See Sharp, 2014-Ohio-

4140, at ¶ 50, citing Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, at ¶ 29.

Importantly, a trial court must engage in such a discussion relative to the protection

of the public, the punishment of the offender, and the proportionality of the

seriousness of the offender’s conduct analysis each time a criminal defendant is

sentenced in a case. See State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, at

¶ 11, quoting State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, ¶ 15, quoting

State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 17, (“We reaffirmed Fraley

* * *, stating in regard to a community-control-revocation hearing that ‘“[a]t this

second hearing, the court sentences the offender anew and must comply with the

relevant sentencing statutes.”’”).

          {¶18} Therefore, under the facts presented, we cannot conclude that the trial

court made the statutory findings as required by R.C. 2929.14(C)(4) each time it

sentenced Beall, and consequently, his sentence is clearly and convincingly contrary

to law.

          {¶19} Accordingly, we sustain Beall’s first assignment of error.



4
  Notably, the trial court did include findings related to protection of the public, punishment of the offender,
and proportionality as to the seriousness of Beall’s conduct in the November 8, 2019 and November 22, 2019
judgment entries. (Case No. 2017 CR 00372, Doc. No. 97); (Case No. 2018 CR 00211, Doc. No. 54).

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Case Nos. 5-19-44, 5-19-45




                               Assignment of Error II

       Because the record, as shown by clear and convincing evidence,
       does not support the trial court’s findings under R.C.
       2929.14(C)(4), pursuant to R.C. 2953.08(G)(2), the trial court’s
       sentence of Appellant was not supported by the record.

       {¶20} In his second assignment of error, Beall argues that the sentences he

received are not supported by the record, and are, therefore, contrary to law.

However, our ruling on Beall’s first assignment of error has rendered this argument

moot as we have already vacated his sentences and remanded these cases for

resentencing. For this reason, we decline to address these issues under App.R.

12(A)(1)(c).

       {¶21} Having found error prejudicial to the appellant herein in the particulars

assigned and argued in his first assignment of error, we affirm the convictions of the

defendant-appellant, but we reverse the sentences of the trial court and remand these

matters for resentencing in the trial court.

                                                       Judgments Affirmed in Part,
                                                             Reversed in Part and
                                                               Causes Remanded

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

/jlr




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