State v. Coykendall , 2021 Ohio 3875 ( 2021 )

[Cite as State v. Coykendall, 2021-Ohio-3875.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-20-24
v.
JASON W. COYKENDALL, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-20-26
v.
JASON W. COYKENDALL, OPINION
DEFENDANT-APPELLANT.
Appeals from Marion County Common Pleas Court
Trial Court Nos. 19-CR-420 and 19-CR-434
Judgments Affirmed
Date of Decision: November 1, 2021
APPEARANCES:
Paul L. Scarsella for Appellant
Nathan R. Heiser for Appellee
Case No. 9-20-24 and 9-20-26
SHAW, J.
{¶1} Defendant-appellant, Jason Coykendall, brings these appeals from the
April 7, 2020, judgments of the Marion County Common Pleas Court sentencing
him to serve consecutive sentences after he was convicted of two counts of burglary
in two separate trial court cases. On appeal, Coykendall argues that the trial court
erred by imposing consecutive sentences without making the appropriate statutory
findings, and that the Reagan Tokes Law is an unconstitutional violation of the
separation of powers.
Background
{¶2} On October 9, 2019, Coykendall was indicted in trial court case 19-CR-
420 for burglary in violation of R.C. 2911.12(A)(2), a second degree felony.1 The
crime allegedly occurred on October 4, 2019.
{¶3} On October 23, 2019, a separate indictment was filed in trial court case
19-CR-434 charging Coykendall with four counts of burglary in violation of R.C.
1
The written indictment against Coykendall in case 19-CR-420 lists two counts. Count one names
Coykendall along with a separate defendant, but count two is only related to the separate criminal defendant.
The written existence of this additional count against a second criminal defendant in the indictment against
Coykendall in trial court case 19-CR-420 prompted the state to file a motion to dismiss appeal 9-20-24
(corresponding to trial court case 19-CR-420). The state claimed that the count against the second defendant
was effectively unresolved in Coykendall’s case because the count was not mentioned in Coykendall’s plea
agreement or in the final judgment entry related to 19-CR-420. Because the second count did not name
Coykendall, the state’s motion to dismiss appeal 9-20-24 was erroneously granted by this Court. This opinion
is released upon reconsideration and our having vacated our prior decision, State v. Coykendall, 3rd Dist.
Marion Nos. 9-20-24, 26, 2021-Ohio-3407. We would note that the record submitted to this Court does not
contain any further information regarding the second count and the second defendant listed in the indictment
filed in case 19-CR-420; however, it appears that the count against the second defendant was dealt with in a
separate trial court case number.
-2-
Case No. 9-20-24 and 9-20-26
2911.12(A)(2), all felonies of the second degree, five counts of forgery in violation
of R.C. 2913.31(A)(1), all felonies of the fifth degree, three counts of theft in
violation of R.C. 2913.02(A)(1), all felonies of the fifth degree, and four counts of
receiving stolen property in violation of R.C. 2913.51(A), all felonies of the fifth
degree.2 The crimes in trial court case 19-CR-0434 allegedly occurred on the dates
of September 24-26, 2019, and on October 1, 2019.
{¶4} On March 13, 2020, Coykendall entered into written negotiated plea
agreements in both pending trial court cases against him. In trial court case 19-CR-
420, he agreed to plead guilty to burglary in violation of R.C. 2911.12(A)(2), a
second degree felony, and in trial court case 19-CR-434 he agreed to plead guilty to
a single count of burglary in violation of R.C. 2911.12(A)(2), a second degree
felony. As part of the plea agreement, the parties agreed to a jointly recommended
sentence on each count of a six year minimum prison term, with a maximum
indefinite prison term of nine years. The jointly recommended sentence indicated
that the prison terms would run concurrently. According to the trial court’s entries
in the record, a Crim.R. 11 plea hearing was held wherein Coykendall entered his
pleas knowingly, intelligently, and voluntarily; however, no transcript from that
hearing was provided.
2
In the 19-CR-434 case, Coykendall was originally indicted for one count of burglary on October 16, 2019;
however, a superseding indictment containing sixteen counts was filed a week later, on October 23, 2019.
-3-
Case No. 9-20-24 and 9-20-26
{¶5} On April 6, 2020, both cases against Coykendall proceeded to
sentencing. The state and defense counsel reiterated the jointly recommended
sentence in this matter. Further, the state indicated that the victims of the burglaries
felt that the jointly recommended sentence would be a just punishment. Coykendall
made a statement on his own behalf expressing his remorse. He also read letters he
had written to the victims in this matter.
{¶6} The trial court then proceeded to sentence Coykendall, indicating that
it was persuaded Coykendall was remorseful. Thus the trial court deviated
downward slightly from the jointly recommended prison sentence, ordering
Coykendall to serve an indefinite minimum prison term of five years on each count,
with a maximum possible prison term of seven and one-half years. However,
contrary to the joint recommendation of concurrent sentences, the trial court found
that given the gravity of the crimes committed, Coykendall’s criminal history, and
the fact that the crimes occurred against different victims over a period of time,
consecutive sentences were warranted in this matter. Thus the trial court ordered
the prison terms in each trial court case to be served consecutive to each other.
{¶7} Finally, the trial court determined that Coykendall was on post-release
control at the time he committed the offense in trial court case 19-CR-420.
Coykendall was ordered to serve twelve months in prison for his post-release control
violation, consecutive to his other prison terms. Judgment entries memorializing
-4-
Case No. 9-20-24 and 9-20-26
Coykendall’s sentence were filed the day after the sentencing hearing. It is from
these judgments that Coykendall appeals, asserting the following assignments of
error for our review.
Assignment of Error No. 1
The Court erred as a matter of law when it imposed consecutive
sentences without making the appropriate findings and without a
factual basis to justify the imposition of consecutive sentences.
Assignment of Error No. 2
The sentencing structure created by the Reagan Tokes Act is a
violation of the separation of powers and is therefore
unconstitutional.
First Assignment of Error
{¶8} In his first assignment of error, Coykendall argues that the trial court
erred by imposing consecutive sentences in this matter without making the
appropriate statutory findings pursuant to R.C. 2929.14(C)(4). Further, he argues
that even if the findings were made, they were not supported by the record.
Standard of Review
{¶9} 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. Clear and convincing evidence is that “ ‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’ ”
-5-
Case No. 9-20-24 and 9-20-26
Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus.
Relevant Authority
{¶10} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive
sentences, a trial court must find on the record that consecutive sentences are
“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.” Accord State v. Grate,
164 Ohio St.3d 9, 2020-Ohio-5584, ¶ 205. A trial court must then also find that at
least one or more of the aggravating factors in R.C. 2929.14(C)(4)(a) through (c)
are present. Those factors include,
(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.
-6-
Case No. 9-20-24 and 9-20-26
{¶11} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37, the
Supreme Court of Ohio held that a trial court must make the requisite statutory
findings before imposing consecutive sentences “at the sentencing hearing and
incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.”
Analysis
{¶12} After the parties gave their recommendations at the sentencing
hearing, and Coykendall was able to speak on his own behalf, the trial court
proceeded to sentence Coykendall. The trial court indicated that it had considered
the principles and purposes of sentencing, then emphasized that Coykendall’s record
was “abysmal.” (Apr. 6, 2020, Tr. at 15). The trial court summarized Coykendall’s
lengthy criminal history, which included “a multitude of crimes of violence” as well
as a trespass and a breaking and entering. (Id. at 16). In addition to his criminal
convictions and his prison terms, the trial court stated that Coykendall had not
responded favorably to his opportunities while under supervision. For example,
Coykendall had violated community control, judicial release, and post-release
control.
{¶13} The trial court then determined that the most “egregious things about
both of these cases are who you victimized.” (Id. at 17). In one case the victim was
-7-
Case No. 9-20-24 and 9-20-26
a 62 year old with dementia, and the other victim involved a church in the
community.
{¶14} Next, the trial court found that a prison sentence in each case was
appropriate, particularly since “these two offenses occurred almost a month apart.”
(Id. at 18). Because of this, the trial court determined that the jointly recommended
concurrent sentence was not appropriate because it would “demean the seriousness
of the offense in each of these [cases].” (Id.)
{¶15} The trial court then imposed a minimum indefinite prison term of five
years in both cases, with a maximum indefinite prison term of seven and one half
years, to be served consecutive to each other. “In addition, because you were on
post release control at the time of the offense, I am also going to impose a 12 month
period of time for [that violation.]” (Id.) The trial court’s findings were then
incorporated into its judgment entries on the matter. The judgment entry explicitly
mirrored the proper findings required under R.C. 2929.14(C)(4).
{¶16} On appeal, Coykendall argues that the preceding statements at the
sentencing hearing were insufficient to constitute the findings required to impose
consecutive sentences under R.C. 2929.14(C)(4). Importantly, however, while we
have often stated that the precise words of the statute are preferred as the better
practice, a trial court is not “required to give a talismanic incantation of the words
-8-
Case No. 9-20-24 and 9-20-26
of [R.C. 2929.14(C)(4)], provided that the necessary findings can be found in the
record and are incorporated into the sentencing entry.” Bonnell at ¶ 37.
{¶17} While the trial court’s language did not explicitly mirror R.C.
2929.14(C)(4) at the sentencing hearing, the trial court’s findings at the hearing in
this case are sufficient to invoke consecutive sentences in this matter. The trial
court’s indication that it could not impose a concurrent sentence, and that a prison
term was warranted in each case indicates the need to punish Coykendall. The trial
court’s statement that a concurrent sentence would demean the seriousness of the
offense in each case indicates that consecutive sentences were not disproportionate
to Coykendall’s conduct and the danger he posed to the public. Furthermore, the
trial court specifically found that Coykendall was on post-release control at the time
he committed the offenses, invoking R.C. 2929.14(C)(4)(a). In addition, the trial
court emphasized that the two offenses were committed a month apart, against
different, vulnerable victims, indicating multiple courses of conduct pursuant to
R.C. 2929.14(C)(4)(b). Finally, the trial court repeatedly emphasized Coykendall’s
“abysmal” criminal record, implicating R.C. 2929.14(C)(4)(c). Based on the
findings of the trial court we cannot find that Coykendall has demonstrated by clear
and convincing evidence that consecutive sentences were improperly imposed at the
sentencing hearing. The findings were then explicitly and directly made pursuant
-9-
Case No. 9-20-24 and 9-20-26
to the exact wording of the statute in the trial court’s entries. Thus his arguments
regarding the imposition of consecutive sentences are not well-taken.
{¶18} Next, Coykendall argues that even if the trial court made the proper
consecutive sentence findings, they were unsupported by the record. Contrary to
Coykendall’s argument on appeal, a trial court has no obligation to state its specific
reasons to support its consecutive sentencing findings under R.C. 2929.14(C)(4).
State v. Oliver, 3d Dist. Union No. 14-20-23, 2021-Ohio-1002, ¶ 18, citing Bonnell
at ¶ 37. Nevertheless, even if specific reasoning was required, consecutive
sentences were supported by all the reasons stated by the trial court at the sentencing
hearing, including Coykendall’s criminal history, the number of crimes and victims,
and his status on post-release control. For all of these reasons, Coykendall’s first
assignment of error is overruled.3
Second Assignment of Error
{¶19} In his second assignment of error, Coykendall argues that the
sentencing structure created by the Reagan Tokes Law violates the separation of
powers and it is therefore unconstitutional.
3
Coykendall seems to be primarily disgruntled with the trial court’s deviation from the joint sentencing
recommendation. However, the written plea agreements specifically provided the maximum possible
sentences and emphasized that the trial court was not bound by the joint sentencing recommendation.
Further, defense counsel again noted at sentencing that Coykendall could be sentenced for much longer than
the joint sentencing recommendation. Thus while Coykendall may not have been happy with his consecutive
sentences, he was aware of the possibility.
-10-
Case No. 9-20-24 and 9-20-26
Analysis
{¶20} The challenge raised by Coykendall in this case has been addressed,
and rejected, multiple times by this Court already. State v. Floyd, 3d Dist. Marion
No. 9-20-44, 2021-Ohio-1935, ¶ 20; See State v. Crawford, 3d Dist. Henry No. 7-
20-05, 2021-Ohio-547, ¶ 10; State v. Kepling, 3d Dist. Hancock No. 5-20-23, 2020-
Ohio-6888, ¶ 7.4 At this juncture, we decline to revisit our precedent and conclude
that Coykendall’s facial challenge to the Reagan Tokes Law on the basis that it
violates the separation of powers doctrine is without merit. For these reasons,
Coykendall’s second assignment of error is overruled.
Conclusion
{¶21} For the foregoing reasons Coykendall’s assignments of error are
overruled and the judgments and sentences of the Marion County Common Pleas
Court are affirmed.
Judgments Affirmed
WILLAMOWSKI, P.J. and MILLER, J., concur.
/jlr
4
We are aware that other appellate districts have found that separation of powers and due process arguments
similar to those raised by Coykendall in this appeal were not yet ripe for review. See State v. Ramey, 4th Dist.
Washington Nos. 20CA1, 20CA2, 2020-Ohio-6733, ¶ 22; State v. Downard, 5th Dist. Muskingum No.
CT2019-0079, 2020-Ohio-4227, ¶ 5, 12-13; State v. Velliquette, 6th Dist. Lucas No. L-19-1232, 2020-Ohio-
4855, ¶ 30; State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, ¶ 10-18; State v. Lavean, 11
Dist. Lake No. 2020-L-045, 2021-Ohio-1456, ¶ 8-12. We are also aware that on December 28, 2020, the
Supreme Court of Ohio accepted a case to determine whether the constitutionality of the Reagan Tokes Law
is ripe for review. See State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913. At this time, oral arguments
have been held in that case and a decision is forthcoming.
-11-