[Cite as State v. Koeser, 2013-Ohio-5838.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2013-P-0041
        - vs -                                  :

MARGO M. KOESER,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR
0150.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Patricia J. Smith, 9442 State Route 43, Streetsboro, OH        44241 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Margo M. Koeser, appeals her sentence following her guilty

plea to illegal manufacture of marijuana, illegal manufacture of psilocin mushrooms, and

endangering children. At issue is whether the trial court made the necessary findings to

support appellant’s consecutive sentences. For the reasons that follow, we affirm.

        {¶2}     Appellant was indicted in an eight-count indictment charging her with

illegal manufacture of marijuana, a felony of the second degree (Count One); illegal
manufacture of psilocin mushrooms (a Schedule I Controlled Substance) in the vicinity

of a juvenile, a felony of the first degree (Count Two); trafficking in marijuana, a felony of

the second degree (Count Three); aggravated trafficking in psilocin mushrooms, a

felony of the third degree (Count Four); possession of marijuana, a felony of the third

degree (Count Five); aggravated possession of psilocin mushrooms, a felony of the fifth

degree (Count Six); possessing criminal tools, a felony of the fifth degree (Count

Seven); and endangering children, a felony of the third degree (Count Eight).

       {¶3}   Appellant pled not guilty. The statement of facts that follows is derived

from the police report summarized in the pre-sentence report and the prosecutor’s

comments at sentencing. Between December 2011 and February 2012, the Portage

County Drug Task Force and the Department of Job and Family Services received

information that appellant and her live-in boyfriend were engaging in illegal drug activity

in appellant’s residence in Hiram, Ohio in the presence of her four-year-old daughter.

       {¶4}   On December 27, 2011, a Job and Family Services caseworker made an

unannounced visit to appellant’s residence and detected an overwhelming odor of

marijuana coming from the residence. The caseworker called a Task Force detective

requesting assistance as appellant and her boyfriend were being uncooperative. Upon

the detective’s arrival, appellant and her boyfriend denied him access to the house and

said he would need a search warrant to enter.

       {¶5}   On February 3, 2012, an informant advised the Task Force that he had

lived in the garage on appellant’s property for six months between July 2011 and

January 2012, and that appellant and her boyfriend were cultivating marijuana at the

residence. The informant said that in November 2011, he purchased one-half pound of




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marijuana from appellant’s boyfriend for $1,200. The informant said he moved out in

January 2012, and at that time appellant and her boyfriend were still growing marijuana.

       {¶6}   The Task Force obtained a search warrant and executed it on February

15, 2012. Upon entry into appellant’s residence, the investigators found appellant, her

boyfriend, and appellant’s child. Appellant was argumentative, uncooperative, volatile,

and disrespectful to the officers. Investigators found a psilocin mushroom cultivation

operation in appellant’s garage and a marijuana cultivation operation in her basement.

A hole had been cut into the basement ceiling allowing access into the child’s bedroom

so the drug operation could be pursued without having to use the outside entrance,

which had been boarded up to conceal the drug activity. The interior of the house was

in deplorable condition with rotten food and a large amount of psilocin mushrooms in the

kitchen. The officers seized 14 mature marijuana plants. They also seized 22 psilocin

mushrooms that were set out for drying. The amount of marijuana and psilocin

mushrooms collected was so large it filled a bus that was brought to the property to

remove the contraband. The officers also seized a large amount of drug paraphernalia,

including fans, electric lights, mason jars containing psilocin mushroom spores, and

growing equipment used in the cultivation process. Appellant and her companion were

arrested and the child was placed in the custody of Job and Family Services.

       {¶7}   Appellant subsequently pled guilty to Count One, illegal manufacture of

marijuana, a felony of the second degree; amended Count Two, illegal manufacture of

psilocin mushrooms, a felony of the second degree; and Count Eight, endangering

children, a felony of the third degree.




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        {¶8}   The trial court referred the matter for a presentence report. Subsequently,

the trial court held a sentencing hearing. Appellant was previously convicted of

obstructing official business in 1997, operating a vehicle under the influence of alcohol

in 1998, felony attempted assault on a police officer in 1999, and criminal mischief in

2012.    The trial court stated in its judgment entry that it considered the evidence

presented by counsel and the pre-sentence report, which was made part of the record.

The court made findings concerning the seriousness of appellant’s conduct, and

sentenced her to two years in prison on each count, each term to be served

consecutively to the other, for a total of six years.

        {¶9}   Appellant appeals her sentence, asserting the following for her sole

assignment of error:

        {¶10} “The trial court erred when it imposed consecutive sentences without

making the required findings pursuant to R.C. 2929.14.”

        {¶11} Appellant argues the trial court failed to make certain factual findings

necessary to sentence her to consecutive sentences under the newly amended R.C.

2929.14(C)(4). In contrast, the state argues the trial court’s findings on the record at

sentencing satisfied the requirement for findings in R.C. 2929.14(C)(4).

        {¶12} Appellant argues the pertinent standard of review is the two-step approach

in reviewing felony sentences set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-

4912, ¶26. Under the first prong, appellate courts “examine the sentencing court’s

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Id. “If this first prong

is satisfied, the trial court’s decision in imposing the term of imprisonment is reviewed




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under the abuse-of-discretion standard.” Id. After the enactment of H.B. 86, which

requires judicial fact-finding for consecutive sentencing, this court has continued to

follow the standard of review of criminal sentences set forth in Kalish. E.g. State v.

Frasca, 11th Dist. Trumbull No. 2011-T-0108, 2012-Ohio-3746, ¶48; State v. Beckwith,

11th Dist. Ashtabula No. 2012-A-0051, 2013-Ohio-1739, ¶7. The trial court’s failure to

make statutorily-required findings before imposing a particular sentence is contrary to

law. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶12.

       {¶13} As a preliminary matter, we note that H.B. 86 became effective on

September 30, 2011. Appellant was sentenced on April 5, 2013. Thus, the new

provisions apply to this case. Beckwith, supra, at ¶8.

       {¶14} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court

of Ohio struck down former R.C. 2929.14(E)(4), which governed the imposition of

consecutive sentences, as unconstitutional because it required judicial fact-finding. Id.

at paragraph three of the syllabus. However, the basis for this part of Foster’s holding

was undercut by the United States Supreme Court’s later decision in Oregon v. Ice, 555

U.S. 160 (2009).    In Ice, the Supreme Court held the Sixth Amendment does not

preclude states from authorizing courts to make findings of fact before imposing

consecutive sentences. Id. at 169. Thereafter, the Ohio Supreme Court in State v.

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, held, “[a]fter Ice, it is now settled law that * *

* the jury-trial guarantee of the Sixth Amendment to the United States Constitution does

not preclude states from requiring trial court judges to engage in judicial fact-finding

prior to imposing consecutive sentences.” Id. at ¶19.




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       {¶15} However, the Supreme Court in Hodge held that Ice did not revive the

former consecutive sentencing statutory provisions held unconstitutional in Foster.

Hodge, at paragraph two of the syllabus. Further, the Supreme Court in Hodge held that

“[t]rial court judges are not obligated to engage in judicial fact-finding prior to imposing

consecutive sentences unless the General Assembly enacts new legislation requiring

that findings be made.” Id. at paragraph three of the syllabus.

       {¶16} Subsequent to Hodge, H.B. 86 re-enacted the consecutive sentencing

provisions of former R.C. 2929.14(E)(4), once again requiring judicial fact-finding for

consecutive sentences.         These provisions, which have been renumbered as R.C.

2929.14(C)(4), authorize the trial court to impose consecutive sentences on an offender

upon conviction of multiple offenses.

       {¶17} Pursuant to R.C. 2929.14(C)(4), consecutive sentences can be imposed if

the court finds that (1) a consecutive sentence is necessary to protect the public from

future crime or to punish the offender and that (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public. In addition to these two factors, the court must find one of

the following three factors:

       {¶18} (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[;]

       {¶19} (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




                                             6
             that no single prison term for any of the offenses * * * adequately

             reflects the seriousness of the offender's conduct[; or]

      {¶20} (c) The offender’s history of criminal conduct demonstrates that

             consecutive sentences are necessary to protect the public from

             future crime by the offender. (Emphasis added.)

      {¶21} Subsequent to this amendment in the consecutive sentencing law, Ohio

Appellate Districts have held that R.C. 2929.14(C)(4) requires trial courts to make the

foregoing findings when imposing consecutive sentences. State v. Stalnaker, 11th Dist.

Lake No. 2011-L-151, 2012-Ohio-3028, ¶15 (“H.B. 86, effective September 30, 2011, * *

* amends R.C. 2929.14 and requires fact finding for consecutive sentences.”).

      {¶22} While the requirement that fact finding occur was re-enacted by H.B. 86,

the requirement that a sentencing court give reasons for imposing consecutive

sentences, which existed under former R.C. 2929.19(B)(2), was not re-enacted.

Frasca, supra, ¶57. Thus, a sentencing court is not statutorily required to give reasons

for a consecutive sentence. Id.; Beckwith, supra, at ¶15. “[I]t is arguably easier to

impose consecutive sentences today than it was under former R.C. 2929.14(E)(4)

because the revived version did away with the requirement that the court justify its

findings by giving reasons for making those findings.” Venes, supra, at ¶16.

      {¶23} Further, when making findings regarding consecutive sentencing, “a

verbatim recitation of the statutory language is not required by the trial court.” State v.

Green, 11th Dist. Ashtabula No. 2003-A-0089, 2005-Ohio-3268, ¶26, citing State v.

Grissom, 11th Dist. Lake No. 2001-L-107, 2002-Ohio-5154, ¶ 21. The trial court is not

required to use “magic words” in order to satisfy its obligation to make findings before




                                            7
imposing consecutive sentences. Venes, supra, at ¶13. It is sufficient if the trial court

makes statements during the sentencing hearing showing that the decision to impose

consecutive prison terms was predicated upon R.C. 2929.14(C)(4). State v. Lewis, 11th

Dist. Lake No. 2012-L-074, 2013-Ohio-3974, ¶92, 94.

      {¶24} Turning now to the instant case, we determine whether the trial court

made the factual findings required by R.C. 2929.14(C)(4) before imposing appellant’s

consecutive sentence.

      {¶25} First, there is no dispute that the trial court complied with R.C.

2929.14(C)(4) in finding in the sentencing entry that “the consecutive sentence is

necessary to protect the public from future crime or to punish [appellant]; that

consecutive sentences are not disproportionate to the seriousness of [appellant’s]

conduct and to the danger [appellant] poses to the public.”

      {¶26} With respect to the additional requirement that the court find one of the

three alternative factors in R.C. 2929.14(C)(4)(a)-(c) applies, appellant argues the trial

court failed to make a finding as to which of the three factors applies and, therefore, the

sentence must be vacated and this case must be remanded for a new sentencing. In

opposition, the state argues the trial court made findings on the record sufficient to

satisfy the second alternative factor in R.C. 2929.14(C)(4)(b).

      {¶27} Under R.C. 2929.14(C)(4)(b), the court was required to make two findings.

First, the court was required to find that at least two of the offenses were committed as

part of a course of conduct. The trial court found that appellant had pled guilty to three

counts: illegal manufacture of marijuana, illegal manufacture of psilocin mushrooms,

and endangering children, each of which was committed on February 15, 2012, at




                                            8
appellant’s residence. Moreover, the trial court found that appellant was involved in the

manufacture of a “bus load” of marijuana and psilocin mushrooms at that time and that

this activity occurred in the presence of appellant’s child. Thus, the trial court in effect

found these three offenses were committed as part of a course of conduct.

       {¶28} Second, the trial court was required to find that the harm caused by two or

more of the offenses was so great or unusual that no one prison term for any of the

offenses adequately reflects the seriousness of appellant’s conduct. The trial court

found that appellant’s involvement in these crimes “[p]ut her daughter in danger.” The

court also found:

       {¶29} I’m amazed that the Prosecutor is only recommending six years * *

              *. I think there has to be a clear message sent that this is not going

              to be tolerated, especially around children this cannot be tolerated.

              You cannot tell me that a normal person would feel that a bus load

              of mushrooms and pot would be a minor misdemeanor, or a

              misdemeanor offense, or something less than that.

       {¶30} The trial court could have sentenced appellant up to eight years on either

manufacturing count. Instead, the court sentenced her to two years on three counts,

each to be served consecutively to the other, for a total of six years. The actual prison

time imposed was thus in the mid-range for one manufacturing offense. However, the

court found that appellant’s involvement in drugs on the scale involved here in the

presence of her child required the court to send a message that appellant’s conduct

would not be tolerated. The court thus found the harm appellant caused was so great,

no one sentence was adequate to address the seriousness of her conduct.




                                             9
       {¶31} In fact, the record shows the harm caused by appellant’s crimes was two-

fold. First, the cultivation and sale of large amounts of marijuana and psilocin

mushrooms at appellant’s residence exposed her child and the public to the well-known

dangers associated with drug trafficking. Second, the record shows that fumes from

marijuana emanating from the house were “overwhelming” and that appellant exposed

her child to this health risk on a daily basis over an extended period of time.

       {¶32} The court’s findings thus establish that at least two of the offenses to

which appellant pled guilty were committed as part of a course of conduct and the harm

caused by these offenses was so great or unusual that no one prison term adequately

reflected the seriousness of appellant’s conduct. Although the court may not have used

the exact language of R.C. 2929.14(C)(4)(b), its findings were sufficient to support the

applicability of this factor. As noted above, in making its findings regarding consecutive

sentencing, “‘a verbatim recitation of the statutory language is not required.’” Frasca,

supra, at ¶60, quoting Green, supra, at ¶26.

       {¶33} We therefore hold the trial court’s judgment was not contrary to law.

       {¶34} For the reasons stated in the opinion of this court, appellant’s assignment

of error is overruled. It is the judgment and order of this court that the judgment of the

Portage County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                               _______________________




                                            10
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶35} Finding merit in appellant’s assignment of error, I would reverse and

remand for resentencing, and require the trial court to state its findings pursuant to R.C.

2929.14(C)(4) on the record. I find the opinion of the Eighth District in Venes, supra,

persuasive:

      {¶36} “When a statute directs a court to make findings before imposing a

particular sentence, a failure to make those findings is ‘contrary to law.’ See State v.

Jones, 93 Ohio St.3d 391, 399, * * * [(2001)]. The question is what constitutes sufficient

findings under R.C. 2929.14(C)(4).

      {¶37} “We have never held that the court has to state its findings word-for-word

as set forth in R.C. 2929.14(C). Hence, the court need not use ‘magic’ words in order to

satisfy its obligation to make specific findings before imposing consecutive sentences.

See, e.g., State v. White, 135 Ohio App.3d 481, 486, * * * (8th Dist.1999).

      {¶38} “But not requiring slavish adherence to the specific wording of the statute

is not the same as relieving the court of the duty to make the required ‘findings.’ State

v. Jones, 8th Dist. No. 98371, 2013-Ohio-489, ¶ 23. R.C. 2929.14(C)(4) requires the

court to make specific ‘findings.’ In the past, we have found those findings can be

implicit in context when the court’s statements during sentencing are intended to

encompass the relevant provisions of the sentencing statutes. State v. Moore, 8th Dist.

No. 84911, 2005-Ohio-4164, at ¶ 7. But in doing so, we have arguably frustrated the

purposes underlying the requirement for findings as a predicate for ordering consecutive

sentences.




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       {¶39} “The supreme court has recognized that ‘Ohio appears to be unique in

having a rule that sentences of imprisonment shall be served concurrently.’ [State v.]

Foster [, 109 Ohio St.3d 1, 2006-Ohio-856] at ¶ 66. The imposition of consecutive

sentences in Ohio is thus an exception to the rule that sentences should be served

concurrently. And there is no doubt that the provisions of H.B. 86, like those of S.B. 2

before it, were intended, among other things, to alleviate overcrowding in the prison

system.    See R.C. 181.24 (creating criminal sentencing commission to design

sentencing structure ‘to assist in the management of prison overcrowding and

correctional resources’).

       {¶40} “By imposing a requirement that the trial judge make specific findings

before ordering sentences to be served consecutively, the General Assembly

toughened the standard for consecutive sentences. However, the revived consecutive

sentencing statute codified in R.C. 2929.14(C)(4) does not place a heavy burden on a

trial judge. Indeed, it is arguably easier to impose consecutive sentences today than it

was under former R.C. 2929.14(E)(4) because the revived version did away with the

requirement that the court justify its findings by giving reasons for making those

findings. See State v. Goins, 8th Dist. No. 98256, 2013-Ohio-263; State v. Blackburn,

8th Dist. Nos. 97811 and 97812, 2012-Ohio-4590, ¶ 35.

       {¶41} “Because the statute so clearly requires specific findings for the imposition

of consecutive sentences, those findings must be entered at the time the court orders

sentences to be served consecutively. What we mean by this is that regardless of what

the trial judge might say during sentencing regarding the purposes and goals of criminal

sentencing, compliance with R.C. 2929.14(C)(4) requires separate and distinct findings




                                           12
in addition to any findings relating to purposes and goals of criminal sentencing. Too

often, we have been called to examine words or phrases scattered throughout a

sentencing transcript and piece them together to decide whether the court made the

required findings. This case is a good example: the state referenced ‘findings’ on pages

64, 76, 78, 80, and 83 of the transcript in support of consecutive sentences. This alone

is proof that the court did not make separate and distinct findings on the record relative

to the imposition of consecutive sentences.       If the word ‘findings’ is to have any

meaning at all, it means nothing less than the court must ‘engage ( ) in the required

analysis and select ( ) the appropriate statutory criteria’ before ordering sentences to be

served consecutively. State v. Edmonson, 86 Ohio St.3d 324, 326, * * *[(1999)]. Only

then will the imposition of consecutive sentences not be contrary to law.” (Emphasis

sic.) (Parallel citations omitted.) Venes, supra, at ¶12-17.

       {¶42} In this case, the majority infers the trial court made the findings required

by R.C. 2929.14(C)(4) by piecing together statements made at sentencing – the exact

procedure frowned upon in Venes. Further, as the Second District recently observed,

when a reviewing court is required to infer the R.C. 2929.14(C)(4) factors from the

record, it may be impossible to distinguish them from (for instance) the seriousness and

recidivism factors, R.C. 2929.12. State v. Cade, 2d Dist. Clark No. 2012-CA-72, 2013-

Ohio-5162, ¶12.

       {¶43} While “magic language” is not required, I do believe that the trial court’s

findings regarding the R.C. 2929.14(C)(4) factors must be distinct and explicit, not

something inferred from the record.

       {¶44} I respectfully dissent.




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