[Cite as State v. Perez, 2018-Ohio-635.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 4-17-12

        v.

ORLANDO PEREZ, JR.,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Defiance County Common Pleas Court
                           Trial Court No. 16 CR 12613

                                       Judgment Affirmed

                           Date of Decision: February 20, 2018




APPEARANCES:

        Eric Allen Marks for Appellant

        Russell R. Herman for Appellee
Case No. 4-17-12


ZIMMERMAN, J.

       {¶1} Defendant-appellant, Orlando Perez, Jr. (“Perez”), appeals the January

24, 2017 judgment entry of the Defiance County Common Pleas Court imposing

consecutive sentences after he pled guilty to two counts of trafficking in cocaine.

For the reasons set forth below, we affirm the judgment of the trial court.

       {¶2} On July 21, 2016, Perez was indicted on four criminal charges in

Defiance County: Count One, Trafficking in Cocaine, in violation of R.C.

2925.03(A)(1)(C)(4)(f), a felony of the first degree; Count Two, Trafficking in

Cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(g), a felony of the first degree;

Count Three, Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(g),

a felony of the first degree; and Count Four, Engaging in a Pattern of Corrupt

Activity, in violation of R.C. 2923.32(A)(1)(B)(1), a felony of the first degree.

Major Drug Offender (“MDO”) Specifications, in violation of R.C. 2941.1410(A)

were contained in Counts Two and Three. Count Three also contained Forfeiture

Specifications (of money in a drug case and automobile in a drug case), in violation

of R.C. 2941.1417(A). (Doc 2).

       {¶3} At his arraignment on January 26, 2016, Perez entered a plea of not

guilty on all charges. (Doc. 9). On November 23, 2016 the trial court conducted a

change of plea hearing. At the hearing, Perez entered pleas of guilty to Counts One

and Three of the indictment, with the State dismissing the MDO specification in


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both counts. (Doc. 16). Perez also pled guilty to the Forfeiture Specification in

Count Three. (Id.) However, the record is silent as to the dismissal of Count Two

and Four. The trial court accepted Perez’s guilty pleas and ordered a Pre-Sentence

Investigation. Id. A sentencing hearing was held in the trial court on January 23,

2017 wherein Perez was sentenced to a seven-year prison term for each count (one

and three), with the terms to be served consecutive, for an aggregate prison term of

fourteen years. (Doc. 17). Perez filed a motion for leave to file delayed notice of

appeal on July 31, 2017 and we granted that request on September 8, 2017. Perez

appeals the sentencing entry of the trial court, filed January 24, 2017, raising the

following sole assignment of error.

                           ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
       SEVEN-YEAR PRISON TERMS FOR AN AGGREGATE
       TERM OF FOURTEEN YEARS.

       {¶4} In his sole assignment of error, Perez argues that the trial court erred in

imposing consecutive prison terms. Specifically, Perez contends that the trial court

failed to make the required factual findings on the record before imposing

consecutive sentences and questions whether a finding of proportionality can be

inferred from the trial court’s findings.




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                                Standard of Review

       {¶5} A sentence imposed by a trial court will not be disturbed absent a

showing by clear and convincing evidence that the sentence is unsupported by the

record; the procedure of the sentencing statutes was not followed or there was not a

sufficient basis for the imposition of a prison term; or that the sentence is contrary

to law. State v. Ward, 3d Dist. Crawford No. 3-17-02, 2017-Ohio-8518. See R.C.

2953.08(G).

                                      Analysis

       {¶6} Before consecutive sentences may be imposed, the trial court is required

to make findings in accordance with R.C. 2929.14. First, the sentencing court must

find that consecutive sentences are “necessary to protect the public” or to “punish

the offender”. R.C. 2929.14(C)(4). Second, the sentencing court must find that

consecutive sentences are “not disproportionate to the seriousness of the offender’s

conduct and to the danger he poses to the public”. Id. And finally, the sentencing

court must find the existence of one of the three following circumstances: (a) the

offender committed one or more of the multiple offenses while the offender was

awaiting trial or sentencing * * * or was under post-release control for a prior

offense; (b) * * * the harm caused by * * * the multiple offenses was so great or

unusual that no single prison term for any of the offenses committed as part of a

single course of conduct adequately reflects the seriousness of the offender’s


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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. State v. Dixon, 10th Dist. Franklin No. 15AP-432, 2015-Ohio-5277, ¶11,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.

       {¶7} Further, Criminal Rule 32(A) requires that at the time of imposing

sentence in a serious offense, the trial court must state its statutory findings and give

reasons supporting its findings if appropriate. Crim.R. 32(A)(4). The Supreme

Court of Ohio has held this to require: “[w]hen imposing consecutive sentences, a

trial court must state the required findings as part of the sentencing hearing”.

Bonnell, supra at ¶29. However, The Supreme Court further determined that the

trial court 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”. Id. at ¶37.

       {¶8} In the case before us, the trial court made the following statements

regarding its sentencing of Perez at the sentencing hearing:

       “It is Ohio’s prerogative to attempt to address the harm of major
       drug trafficking with a different set of available sanctions.

       And his history demonstrates that he’s just an overall danger to
       the community. He’s clearly a destructive element. I mean it’s
       significant drug trafficking coupled with all the other events from
       assaults to robbery to the - - Considering all the statutory
       sentencing factors, the ongoing pattern of serious criminal
       behavior, the harm caused in the community by this type of
       behavior, his miserable prior criminal history, it’s the judgment

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       of the Court he be sentenced to basic prison terms of seven years
       at the Ohio Department of Rehabilitation and Corrections on
       each of these First Degree Felonies. Those terms designated as
       mandatory terms of imprisonment. The Court determines the
       consecutive terms are necessary to protect the public to
       adequately punish the offenses involved.”

(Tr. Pg. 13).

       {¶9} In reviewing the record, it is clear to us that the trial court determined

consecutive sentences were necessary to protect the public because Perez had a

lengthy criminal history and that the crime at the heart of his case involved major

drug trafficking. Although the trial court could have been clearer in its sentencing

language (used at the hearing) to justify its imposition of consecutive terms of

imprisonment, its findings that Perez: 1) was a major drug trafficker, 2) had an

extensive criminal history and 3) presented a danger to the public, were synonymous

to findings that “consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public”. See

State v. Rodriquez, 3d Dist. Defiance No. 4-16-16, 2017-Ohio-1318, citing State v.

Fields, 10th Dist. Franklin No. 16AP-417, 2017-Ohio-661, ¶20.

       {¶10} Thus, in our review of the record, we find that competent and credible

evidence exists supporting the required statutory findings under Crim.R. 32(A)(4),

that the required findings were made, and that the trial court engaged in an

acceptable analysis as to the proportionality of its consecutive sentencing of Perez.

Furthermore, in its judgment entry of sentencing, the trial court made all of the

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required statutory findings. As such, Perez has failed to show, by clear and

convincing evidence, that the trial court’s sentence is disproportionate and

unsupported by the record. Accordingly, we find Perez’s sole assignment is not

well taken and overruled.

       {¶11} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, the judgment of the Defiance County Common

Pleas Court is hereby affirmed.

                                                           Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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