[Cite as State v. Jarrett, 2020-Ohio-393.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                      CHAMPAIGN COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2019-CA-20
                                                   :
 v.                                                :   Trial Court Case No. 2019-CR-47
                                                   :
 RAMARCO D. JARRETT                                :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 7th day of February, 2020.

                                              ...........

SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0092010, Assistant Prosecuting
Attorney, Champaign County Prosecutor’s Office, Appellate Division, 200 North Main
Street, Urbana, Ohio 43078
       Attorney for Plaintiff-Appellee

JAMES A. ANZELMO, Atty. Reg. No. 0068229, 446 Howland Drive, Gahanna, Ohio
43230
      Attorney for Defendant-Appellant

                                             .............

DONOVAN, J.
                                                                                            -2-


       {¶ 1} Ramarco D. Jarrett appeals from the trial court’s June 13, 2019 judgment

entry of conviction, following his guilty pleas to the following offenses: Count 1, trafficking

in cocaine, in violation of R.C. 2925.03(A)(2)(C)(4)(a), a felony of the fifth degree, along

with a forfeiture specification; Count 3, possession of criminal tools, in violation of R.C.

2923.24(A)(C), a felony of the fifth degree; and Count 5, operating a vehicle under the

influence (“OVI”), in violation of R.C. 4511.19(A)(1)(a)(G)(1)(b), a misdemeanor of the

first degree. The court sentenced Jarrett to 12 months on Count 1, 12 months on Count

3, and to 180 days on Count 5 (10 days mandatory, balance of 170 days suspended).

The court ordered that Counts 1 and 2 be served consecutively to each other and

concurrently to Count 5, for an aggregate term of 24 months. The court also suspended

Jarrett’s driver’s license for 12 months. We will affirm the judgment of the trial court.

       {¶ 2} On February 4, 2019, Jarrett was indicted on the above counts along with

Count 2, possession of cocaine, with an accompanying forfeiture specification, and Count

4, possession of marijuana. Jarrett entered his guilty pleas on May 13, 2019. Count 2

and its attendant specification, a forfeiture specification to Count 3, and Count 4 were

dismissed with prejudice in exchange for Jarrett’s pleas.

       {¶ 3} The following exchange occurred at the plea hearing:

              THE COURT: With regard to Count One, trafficking in cocaine, a

       felony of the fifth degree, are you admitting you committed this offense

       because you did on or about January 3, 2019, and in Champaign County,

       you did knowingly prepare for shipment, ship, transport, deliver, prepare for

       distribution, or distribute a controlled substance, which was cocaine, in an

       amount less than 5 grams where you knew or had reasonable cause to
                                                                                 -3-


believe that the cocaine was intended for sale or resale by you or someone

else?

        [DEFENDANT]: Yes, Your Honor.

        ***

        THE COURT:       With regard to Count Three, possessing criminal

tools, a felony of the fifth degree, are you admitting that you committed this

offense because you did on or about January 3, 2019, and in Champaign

County, you did possess or have under your control any substance, device,

instrument, or article, which was the Ford Mustang, with purpose to use it

criminally? And the circumstances indicate that the Mustang was intended

for the use of the commission of trafficking in cocaine and possession of

cocaine as felonies?

        [DEFENDANT]: Yes, Your Honor.

        THE COURT: Was this a circumstance where you were using the

cocaine to bring - - or you were using the Mustang to bring cocaine into the

county?

        [DEFENDANT]: I was using cocaine.

        THE COURT: I understand that you may have been using cocaine.

But you’ve just pled guilty to trafficking in cocaine. And you just said that

you possessed criminal tools, which was the Mustang. And so am I to

understand that you used the Mustang to drive the cocaine to this county to

sell or offer to sell?

        [DEFENDANT]: Yes, Your Honor.
                                                                                  -4-


{¶ 4} As Jarrett’s sentencing hearing, the following exchange occurred:

       THE COURT: * * *

       * * * [T]he Court referred the matter to the Adult Court Services

Department for a pre-sentence investigation and report. The Court has

received the report of the Adult Court Services Department, reviewed the

same, and is ready to proceed with disposition at this time.

       [Defense Counsel], do you have anything you would like to offer on

behalf of Mr. Jarrett?

       [DEFENSE COUNSEL]: * * * This matter started with my client kind

of being caught in the OVI situation. And I think he’s grateful that he was

caught because it has helped him get control over his addiction. He now

attends group classes two times a week. He sees a counselor one time a

month.    He actually sees two different counselors.        A mental health

counselor and a drug counselor.           He maintained his employment

throughout this incident.

       He understands he will have some mandatory days on at least the

OVI case. He did accept responsibility for his actions in this case. And,

also, he is expecting a child in the near future. If possible, he would like to

have the opportunity to be there for the birth of the child. And he just wants

to kind of - - he does have a lengthy record that involves drugs. He’s been

battling addiction for most of his adult life. He believes he’s on the right

path now.

       He, along with all of his counseling, he’s been reporting to Pretrial
                                                                               -5-


Services. And although testing positive in the very beginning of the matter,

he’s since been clean on every screen. Just would like the Court to take

that into consideration.

       THE COURT: State have anything they would like to offer?

       [THE PROSECUTOR]: * * * Your Honor, I would like the Court to

know that the State has reviewed the pre-sentence investigation report as

well as the case file.     After reviewing that information the State would

recommend and request that the Defendant be sentenced to a term of

imprisonment as determined by the Court on the felony offenses.

       State would note, as pointed out by [defense counsel], this

Defendant does have a lengthy adult record. From the State’s review of

the Defendant’s criminal record, he’s been sentenced to prison on

approximately six separate cases.      It appears he’s been to prison four

times on six separate cases.        His adult record is almost exclusively

possession of drugs and trafficking drugs.

       This case, as the Court is aware, is a trafficking in cocaine case.

From the State’s review of the case, the Defendant has been given

substance abuse treatment, had been placed on the Franklin County

Common Pleas Court Chemical Dependency Docket on every single one of

his adult criminal cases.       And he’s been given community control

numerous times before. And that community control has been revoked

repeatedly.

       State believes that the Defendant has been given numerous
                                                                                 -6-


opportunities by numerous Courts for his adult years to address his

substance abuse issues to be successful on community control.            The

Defendant reported in the PSI that he was diagnosed with depression and

anxiety in March of 2018. And he reported to the PSI writer that he stopped

taking his depression medication, which led to his alcohol and drug use.

Which then led to him trafficking in the instant case because he would traffic

to support his habit.

       The State would note he initially was diagnosed with anxiety,

depression, and bipolar disorder when he was a teenager. So it is not like

these issues came out of nowhere or he was not aware of them or not given

the opportunity to address his mental health issues. He’s known about

these mental health issues for years. And he’s been given opportunities to

address them. And he’s been given opportunities to seek counseling and

seek mental health medications treatment for them. And his response was

to get mental health medication and counseling and then stop taking his

medication because he felt like it.

       ***

       * * * State believes that the Defendant’s record and the fact that he

had approximately 16 separate bindles of cocaine for trafficking here in

Champaign County that all of that warrants a prison term. And we would

request that the Court sentence him to prison accordingly. * * *

       ***

       THE COURT: * * * Mr. Jarrett, you have an opportunity to address
                                                                               -7-


the Court at this time. Is there anything you would like to tell me, sir?

        [DEFENDANT]: Well, I learned from my mistakes in the past. And

I’m trying to seek actual help right now. The group has been helping me.

I go to group twice a week. And I learned from my mistakes.

        ***

        [DEFENDANT]:        Plus, I’m taking my medication regularly, you

know.

        THE COURT: Mr. Jarrett, it goes without saying, your record is not

the best. You’ve been to prison a number of times. You’ve got a drug

problem. But it never changes. If you’re on community control, you get

revoked and go to prison. It is kind of a cycle the way it operates. Doesn’t

seem to be any end to it.

        I’ve been kind of searching through the pre-sentence investigation

looking for some daylight that there might be for you. And, frankly, I just

don’t see any. I can’t find anything. And, you know, these are two F-5

lower level felonies. Mostly all of your convictions have been lower-level

felonies. And you don’t leave me a lot of choice as to what to do. It

appears you’ll not be successful on community control. You never have

been. And we’re just going through the same cycle all over again. I wish

there was some other alternative. Frankly, I’m having a hard time finding

any other alternative other than prison.

        The Court has considered the record and has considered the report

of the Adult Court Services Department and has considered the principles
                                                                              -8-


and purposes of sentencing under 2929.11 and has balanced the

seriousness and recidivism factors set forth in Section 2929.12. The Court

has considered Counsel and Defendant’s oral statement.         Court finds

pursuant to 2929.13 that a previous prison term has been serve - -

numerous prison terms have been served by the Defendant. That the

Defendant is not amenable to community control and prison is consistent

with Section 2929.11.

         Court further finds that consecutive sentences are necessary to

protect the public from future crime and to punish the Defendant and are

not disproportionate to the seriousness of the offender’s conduct and the

danger that the offender poses to the public. And the offender’s history of

criminal conduct demonstrates that consecutive sentences are necessary

to protect the public from future crime by the Defendant.

{¶ 5} Jarrett’s sentencing entry provides in relevant part:

PRE-SENTENCE FINDINGS

         Regarding the Defendant’s Pre-Sentence Conduct, the court finds

that:

         ●The Defendant at the time of the offense was serving, or the

Defendant previously had served, a prison term. R.C. 2929.13(B)(1)(b)(x)

               ○ to wit: Defendant served a prison term in Jefferson County

Case No. 2003 CR 268 for Receiving Stolen Property, Possession of

Cocaine, Concealed and Carry Weapons (two counts), and Trafficking in

Drugs.
                                                                            -9-


             ○ to wit: Defendant served a prison term in Jefferson County

Case No. 2006 CR 010 for Possession of Methadone

             ○ to wit: Defendant served a prison term in Franklin County

Case No. 2010 CR 4891 for Possession of Drugs

             ○ to wit: Defendant served a prison term in Franklin County

Case No. 2011 CR 6689 for Possession of Drugs and Tampering with

Evidence

             ○ to wit: Defendant served a prison term in Franklin County

Case No. 2011 CR 6146 for Possession of Drugs (two counts)

      ● The Defendant committed the offense while under a community

control sanction, while on probation, or while released from custody on a

bond or personal recognizance. R.C. 2929.13(B)(1)(b)(xi).

             ○ to wit:   Defendant was on probation to Franklin County

Municipal Court in Case No. 2010 TRC 112759 for Operating a Vehicle

Under the influence of Alcohol, a Drug of Abuse or a Combination of Them,

a misdemeanor of the first degree.

      ● ORAS Score 29 – High

      ***

In imposing consecutive sentences, the Court makes the following

findings per R.C. 2929.14(C)(4):

      ● Consecutive sentencing is necessary to protect the public from

future crime or to punish the Defendant and consecutive sentences are not

disproportionate to the seriousness of the Defendant’s conduct and to the
                                                                                         -10-


       danger the Defendant poses to the public. R.C. 2929.14(C)(4) AND

              ● The Defendant committed one or more of the multiple offenses

       while the Defendant was awaiting trial or sentencing, was on community

       control or was under post release control for a prior offense.           R.C.

       2929.14(C)(4)(a) AND

              ● The Defendant’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the Defendant. R.C. 2929.14(C)(4)(c).

       {¶ 6} Jarrett asserts three assignments of error. His first assignment of error is as

follows:

              THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT

       MERGING JARRETT’S CONVICTIONS FOR DRUG TRAFFICKING AND

       POSSESSION OF CRIMINAL TOOLS, IN VIOLATION OF THE DOUBLE

       JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED

       STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO

       CONSTITUTION.

       {¶ 7} Jarrett recognizes that the plain error standard applies because defense

counsel did not raise the issue of merger in the trial court, but he asserts that imposition

of multiple sentences for allied offenses of similar import constitutes plain error. Jarrett

argues that his drug trafficking conviction was based on his plan to sell drugs in his

vehicle, and his possessing criminal tools conviction was based on possession of the

same vehicle. He directs our attention to State v. Nievas, 121 Ohio App.3d 451, 700

N.E.2d 339 (8th Dist.).
                                                                                          -11-


       {¶ 8} The State responds that Nievas was decided before State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, which applies a different standard to evaluate

questions of merger. The State also directs our attention to State v. McDonald, 8th Dist.

Cuyahoga No. 105276, 2018-Ohio-484, and State v. Brownlee, 8th Dist. Cuyahoga No.

106395, 2018-Ohio-3308.         The State argues that possessing criminal tools and

trafficking were “inherently committed with separate conduct,” because Jarrett’s criminal

tool was his vehicle, and his trafficking was based on the packaging of sixteen * * * small

baggies or bindles of cocaine for sale.”

       {¶ 9} R.C. 2925.03, proscribing trafficking, provides:

       (A) No person shall knowingly do any of the following:

       ***

       (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or

       distribute a controlled substance or a controlled substance analog, when

       the offender knows or has reasonable cause to believe that the controlled

       substance or a controlled substance analog is intended for sale or resale by

       the offender or another person.

       {¶ 10} R.C. 2923.24, which prohibits possessing criminal tools, provides: “(A) No

person shall possess or have under the person's control any substance, device,

instrument, or article, with purpose to use it criminally.”

       {¶ 11} As this Court has previously noted:

              The Fifth Amendment to the United States Constitution provides in

       relevant part that no person shall “be subject for the same offense to be

       twice put in jeopardy of life or limb.” This protection applies to the states
                                                                                -12-


through the Fourteenth Amendment to the United States Constitution.

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

The Ohio Constitution, Article I, Section 10, also provides double jeopardy

protection to Ohio citizens. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-

995, 34 N.E.3d 892, ¶ 10. The prohibition against double jeopardy protects

citizens from a second prosecution for the same offense and against

multiple punishments for the same offense. (Citations omitted.) Id. * * *

       In Ohio, the multiple punishment double jeopardy protection has

been codified at R.C. 2941.25 as follows:

       (A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

       (B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

       Over the years, the Ohio Supreme Court has articulated several tests

to use when making the sometimes difficult merger decision. The Supreme

Court's most recent test is set forth in State v. Ruff, as follows:

       * * * [W]hen determining whether offenses are allied offenses of

similar import within the meaning of R.C. 2941.25, courts must ask three
                                                                                         -13-


       simple questions when the defendant's conduct supports multiple offenses:

       (1) Were the offenses dissimilar in import or significance? (2) Were they

       committed separately? and (3) Were they committed with separate animus

       or motivation? An affirmative answer to any of the above will permit

       separate convictions. The conduct, the animus, and the import must all be

       considered.

       Id. at ¶ 31.

              ***

State v. Rivera, 2d Dist. Clark No. 2018-CA-117, 2019-Ohio-3296, ¶ 4-6.

       {¶ 12} A defendant’s failure to raise the merger issue in the trial court triggers a

plain error analysis, but “ ‘the imposition of multiple punishments for allied offenses of

similar import amounts to plain error.’ ” Rivera at ¶ 3, fn. 2, quoting State v. Estes, 12th

Dist. Preble No. 2013-04-001, 2014-Ohio-767, ¶ 11.

       {¶ 13} While Jarrett committed both felonies on January 3, 2019, we conclude that

the conduct underlying the offenses is dispositive. As noted by the Eighth District:

              The two crimes, trafficking in cocaine and the possession of criminal

       tools, such as the vehicle, scale, or glassware, were inherently committed

       with separate conduct.       The drugs [the defendant] packaged and

       transported were not the basis of the criminal tools [count]. See, e.g., State

       v. McDonald, 8th Dist. Cuyahoga No. 105276, 2018-Ohio-484, ¶ 43

       (possession of criminal tools is not the same conduct as trafficking or

       possessing drugs); State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-

       2716, ¶ 65, citing State v. Dammons, 8th Dist. Cuyahoga No. 94878 and
                                                                                        -14-


       94879, 2011-Ohio-2908, ¶ 24.

State v. Brownlee, 8th Dist. Cuyahoga No. 106395, 2018-Ohio-3308, ¶ 13.1

       {¶ 14} We conclude that Jarrett’s conduct underlying the possession of criminal

tools was separate from the conduct underlying the trafficking cocaine offense pursuant

to Ruff. Jarrett’s indictment identified a black 2009 Ford Mustang in Count 3, which

stated that “the circumstances indicate that the [Mustang] involved in the offense was

intended for use in the commission of a felony: to wit: Trafficking in Cocaine * * * .” The

prosecutor represented to the Court that Jarrett had 16 separate bindles of cocaine for

trafficking, and those drugs found in his possession were not the basis of his criminal

tools count involving the Mustang. In other words, Jarrett was not entitled to merger, and

plain error is not demonstrated.     Accordingly, Jarrett’s first assignment of error is

overruled.

       {¶ 15} Jarrett’s second assignment of error is as follows:

              JARRETT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,

       IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

       CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO

       CONSTITUTION.

       {¶ 16} Jarrett asserts that defense “counsel rendered ineffective assistance by not

objecting when the trial court decided not to merge the possession of criminal tools and

drug trafficking offenses.”


1
  The Eighth District further noted as follows: “On three separate days, Brownlee sold
drugs to the confidential informant and had criminal tools in his possession at each
transaction. Although the two related crimes were committed on the same respective
day, the proximity within which the crimes were committed is not dispositive.” Id. at
¶ 12.
                                                                                        -15-


      {¶ 17} As this Court has noted:

             To establish ineffective assistance of counsel, a defendant must

      demonstrate both that trial counsel's conduct fell below an objective

      standard of reasonableness and that the errors were serious enough to

      create a reasonable probability that, but for the errors, the outcome of the

      case would have been different. See Strickland v. Washington, 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d

      136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not permitted to distort

      the assessment of what was reasonable in light of counsel's perspective at

      the time, and a debatable decision concerning trial strategy cannot form the

      basis of a finding of ineffective assistance of counsel. State v. Cook, 65

      Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-

      400, 84 N.E.3d 193, ¶ 38 (2d Dist.). Trial counsel is also entitled to a strong

      presumption that his or her conduct fell within the wide range of reasonable

      assistance. Strickland at 689.

State v. Brock, 2d Dist. Clark No. 2018-CA-112, 2019-Ohio-3195, ¶ 29.

      {¶ 18} Having concluded that the drug trafficking offense and the possession of

criminal tools offense were not subject to merger, we conclude that Jarrett’s second

assignment of error lacks merit. In other words, any objection by defense counsel would

not have altered the outcome of Jarrett’s sentencing. Since ineffective assistance of

counsel is not demonstrated, Jarrett’s second assignment of error is overruled.

      {¶ 19} Jarrett’s third assignment of error is as follows:

             THE TRIAL COURT UNLAWFULLY ORDERED RAMARCO
                                                                                        -16-


      JARRETT TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF

      HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10,

      ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND

      FOURTEENTH          AMENDMENTS           TO     THE     UNITED       STATES

      CONSTITUTION.

      {¶ 20} Jarrett asserts that, when the trial court ordered him to serve consecutive

sentences, it made findings under R.C. 2929.14(C)(4) that were unsupported by the

record. Jarrett argues:

             As an initial matter, the court stated that consecutive sentences are

      not disproportionate to the seriousness of Jarrett’s conduct. But the record

      belies this fact. Primarily, Jarrett was not violent during the current matter

      for which he was convicted, and nobody suffered physical injury from his

      actions. Likewise, Jarrett did not cause damage to any property during the

      incident.   These factors mitigate against consecutive sentences.         See

      R.C. 2929.12(C)(3).

             In addition, Jarrett is remorseful, which is another mitigating factor

      against consecutive sentences.       R.C. 2929.12(E)(5).     Also Jarrett has

      indicated that he is ready to be a productive member of society. Thus, he

      is amenable to rehabilitation. This factor shows that Jarrett is less likely to

      commit crimes in the future. See * * * R.C. 2929.12(E). To be sure, Jarrett

      has a criminal background. But, Jarrett has demonstrated that mitigating

      factors exist to weigh against consecutive sentences.

             Lastly, the court made a finding in the sentencing entry but not at the
                                                                                   -17-


sentencing [hearing]. Specifically, the court stated in the sentencing entry

that consecutive sentences were warranted under R.C. 2929.14(C)(4)

because Jarrett was on probation when he committed the present offenses.

The court did not make this finding at the sentencing hearing. The trial

court erred by doing so because, under [State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659], the court is required to make findings

at the sentencing hearing and in the sentencing entry. Id. at ¶ 29.

{¶ 21} As this Court has previously noted:

       In reviewing felony sentences, appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2), rather than an abuse of

discretion standard. See State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate

court may increase, reduce, or modify a sentence, or it may vacate the

sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or

(2) that the sentence imposed is contrary to law.

       In determining the sentence for an individual offense, the trial court

has full discretion to impose any sentence within the authorized statutory

range, and the court is not required to make any findings or give its reasons

for imposing a maximum or more than minimum sentence. State v. King,

2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising

its discretion, a trial court must consider the statutory criteria that apply to

every felony offense, including those set out in R.C. 2929.11 and R.C.
                                                                                  -18-


2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957

N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-

Ohio-855, 846 N.E.2d 1, ¶ 38.

       R.C. 2929.11 requires trial courts to be guided by the overriding

purposes of felony sentencing. Those purposes are “to protect the public

from future crime by the offender and others and to punish the offender

using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local

government resources.” R.C. 2929.11(A). The court must “consider the

need for incapacitating the offender, deterring the offender and others from

future crime, rehabilitating the offender, and making restitution to the victim

of the offense, the public, or both.” Id. R.C. 2929.11(B) further provides

that “[a] sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing * * *,

commensurate with and not demeaning to the seriousness of the offender's

conduct and its impact upon the victim, and consistent with sentences

imposed for similar crimes committed by similar offenders.”

       In general, it is presumed that prison terms will be served

concurrently. R.C. 2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, ¶ 16, 23 (“judicial fact-finding is once again

required to overcome the statutory presumption in favor of concurrent

sentences”).   However, after determining the sentence for a particular

crime, a sentencing judge has discretion to order an offender to serve
                                                                                     -19-


      individual counts of a sentence consecutively to each other or to sentences

      imposed by other courts. R.C. 2929.14(C)(4) permits a trial court to impose

      consecutive sentences if it finds that (1) consecutive sentencing is

      necessary to protect the public from future crime or to punish the offender,

      (2) consecutive sentences are not disproportionate to the seriousness of

      the offender's conduct and to the danger the offender poses to the public,

      and (3) any of the following applies:

             (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.

State v. Lambert, 2d Dist. Champaign No. 2018-CA-28, 2019-Ohio-2837, ¶ 8-11.

      {¶ 22} We initially note that Jarrett’s fifth-degree-felony sentences are not

contrary to law. R.C. 2929.14(A)(5). The record reflects that the court considered R.C.

2929.11 and R.C. 2929.12. We agree with Jarrett that the trial court did not find on the
                                                                                            -20-


record at the sentencing hearing, pursuant to R.C. 2929.14(C)(4)(a), that Jarrett

“committed one or more of the multiple offenses while the offender was awaiting trial or

sentencing, was on community control or was under post release control for a prior

offense.”   The court did find in its judgment entry of conviction that Jarrett was on

probation in Franklin County for OVI at the time of the offenses.

       {¶ 23} The court further found however, both on the record and in its judgment

entry of conviction, after articulating Jarrett’s lengthy drug-related criminal history, past

imprisonment and failed opportunities on community control, that Jarrett’s criminal history

demonstrated that consecutive sentences were necessary to protect the public from

future crime” by Jarrett, pursuant to R.C. 2929.14(C)(4)(c).        Given Jarrett’s lengthy

criminal history, the record supported this specified finding for consecutive sentences.

Any error by the trial court in failing to articulate the R.C. 2929.14(C)(4)(a) finding on the

record is necessarily harmless.        Pursuant to Crim.R. 52(A), “[a]ny error, defect,

irregularity, or variance which does not affect substantial rights shall be disregarded.”

       {¶ 24} Jarrett’s third assignment of error is overruled.

       {¶ 25} The judgment of the trial court is affirmed.

                                      .............



TUCKER, P.J. and FROELICH, J., concur.


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Samantha B. Whetherholt
James A. Anzelmo
Hon. J. Timothy Campbell, Visiting Judge
