[Cite as State v. Mayweather, 2019-Ohio-479.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee     :       Hon. John W. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 18-CA-49
JEREZ S. MAYWEATHER                             :
                                                :
                    Defendant-Appellant         :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Licking County
                                                    Court of Common Pleas, Case No.
                                                    17CR134

JUDGMENT:                                           Affirmed


DATE OF JUDGMENT ENTRY:                             February 8, 2019


APPEARANCES:


For Plaintiff-Appellee                              For Defendant-Appellant

WILLIAM C. HAYES                                    JAMES ANZELMO
Licking County Prosecutor                           446 Howland Drive
By: DANIEL J. BENOIT                                Gahanna, OH 43230
Assistant Prosecutor
20 S. Second Street, Fourth Floor
Newark, OH 43055
Gwin, P.J.

       {¶1}   Defendant-appellant Jerez S. Mayweather [“Mayweather”] appeals his

conviction and sentence from the Licking County Court of Common Pleas on three counts

of trafficking in heroin after remand by this Court.

                                   Facts and Procedural History

       {¶2}   On October 19, 2017, a jury found Mayweather guilty of three counts of

trafficking in heroin in violation of R.C. 2925.03(A)(1)(C)(6)(a), felonies of the fifth degree.

By Judgment Entry filed on October 19, 2017, Mayweather was sentenced to one year

on each count. The trial court ordered that the sentences run consecutively, for an

aggregate prison sentence of three years. Mayweather filed a timely notice of appeal,

arguing that the trial court erred by imposing consecutive sentences. State v.

Mayweather, 5th Dist. Licking No. 17-CA-84, 2018-Ohio-1686. This Court agreed finding

that while the court made the necessary consecutive sentencing findings within the

sentencing judgment entry, the trial court failed to state these findings on the record. Id.

at ¶ 64. The matter was then remanded to the trial court for the limited purpose of

resentencing. Id. at 67. That resentencing hearing was held on May 25, 2018.

       {¶3}   At the resentencing hearing, the trial court imposed sentence of twelve

months on each count, and made each of those sentences consecutive to one another.

                                        Assignment of Error

       {¶4}   Mayweather raises one assignment of error,

       {¶5}   “I.      THE     TRIAL     COURT       UNLAWFULLY         ORDERED         JEREZ

MAYWEATHER TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS

RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE
Licking County, Case No. 18-CA-49                                                              3


OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES.”

                                          Law and Analysis

       STANDARD OF APPELLATE REVIEW.

       {¶6}   We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31.                      R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

       {¶7}   Clear and convincing evidence is that evidence “which will provide 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, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

       ISSUE FOR APPEAL.

       A). Whether the trial court properly imposed consecutive sentences in

Mayweather’s case.
Licking County, Case No. 18-CA-49                                                         4


       R.C. 2929.14 (C)(4) Consecutive Sentences.

       {¶8}   R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences.

       {¶9}   In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses.      R.C. 2929.41(A).       The trial court may overcome this

presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)

(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This

statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st

Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.

       {¶10} R.C. 2929.14(C)(4) provides,

              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 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
Licking County, Case No. 18-CA-49                                                            5


       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.

       {¶11} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while 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 offenses 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 would adequately reflect the

seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.

       {¶12} In this case, the record does support a conclusion that the trial court made

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences.
Licking County, Case No. 18-CA-49                                                       6


      R.C. 2929.14(C)(4): [T]he 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.

      {¶13} The trial court considered this factor. (Re-Sent. T., May 25, 2018 at 6).

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

      {¶14} This provision does not apply to Mayweather’s case.

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

      {¶15} The trial court considered this factor. (Re-Sent. T., May 25, 2018 at 6).

      R.C.   2929.14(C)(4)(c):   The    offender’s   history   of   criminal    conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

      {¶16} The trial court made a specific finding concerning this factor. (Re-Sent. T.,

May 25, 2018 at 6).

      {¶17} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the
Licking County, Case No. 18-CA-49                                                         7

court discussed the effect of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823. “Thus, a record after

Foster may be silent as to the judicial findings that appellate courts were originally meant

to review under 2953.08(G)(2).” Kalish at ¶ 12.

       {¶18} In the case at bar, the sentencing court noted, Mayweather is from Chicago,

Illinois, and came to Newark, Ohio for the express purpose of engaging in the trafficking

of heroin. (Re-Sent. T., May 25, 2018 at 6). Additionally, it was noted by the trial court

that three counts that Mayweather was convicted, occurred on three separate dates. (Re-

Sent. T., May 25, 2018 at 6). The court made the required findings under the statute, and

cited Mayweather's criminal history required the imposition of consecutive sentences.

(Re-Sent. T., May 25, 2018 at 6). The court noted a robbery conviction from 2006, and

delivering a controlled substance conviction that resulted in a six-year term of

incarceration. (Re-Sent. T., May 25, 2018 at 7).

       {¶19} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. We also find that the record in the case at bar supports the

trial court’s findings under R.C. 2929.14(C)(4). While Mayweather may disagree with the
Licking County, Case No. 18-CA-49                                                    8


weight given to these factors by the trial judge, Mayweather’s sentence was within the

applicable statutory range and therefore, we have no basis for concluding that it is

contrary to law.

       {¶20} Mayweather has failed to clearly and convincingly show that the aggregate

sentence is otherwise contrary to law.

       {¶21} Mayweather’s sole Assignment of Error is overruled.

       {¶22} The judgment of the Licking County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Wise, John, J., concur
