State v. Jordan , 2021 Ohio 2332 ( 2021 )

[Cite as State v. Jordan, 2021-Ohio-2332.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-62
:
v. : Trial Court Case No. 2019-CR-695
:
ANTHONY DESHAWN JORDAN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 9th day of July, 2021.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
L. PATRICK MULLIGAN, Atty. Reg. No. 0016118, 28 North Wilkinson Street, Dayton,
Ohio 45401
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Anthony Deshawn Jordan appeals from his convictions following a
negotiated guilty plea to charges of cocaine possession, marijuana possession, having
weapons while under disability, and possession of criminal tools, which were three
felonies of the third degree and one felony of the fifth degree, respectively.
{¶ 2} Jordan advances three assignments of error. First, he contends the trial court
erred in accepting an invalid guilty plea. Second, he alleges ineffective assistance of trial
counsel. Third, he argues that his sentence is contrary to law.
{¶ 3} The record reflects that a grand jury indicted Jordan on the following seven
counts: cocaine trafficking, a first-degree felony, with firearm and major-drug-offender
specifications; cocaine possession, a first-degree felony, with firearm and major-drug-
offender specifications; having weapons while under disability, a third-degree felony;
having weapons while under disability, a fourth-degree felony; trafficking in marijuana, a
third-degree felony, with a firearm specification; marijuana possession, a third-degree
felony, with a firearm specification; and possession of criminal tools, a fifth-degree felony,
with a firearm specification. The indictment also contained forfeiture specifications
covering cash, two firearms, and two vehicles.
{¶ 4} The charges against Jordan stemmed from the execution of a search warrant
at his residence. Police discovered 183 grams of cocaine, 1,447.2 grams of marijuana,
two handguns, digital scales, and several cell phones. Following his indictment, Jordan
filed and later withdrew a motion to suppress the evidence against him. He subsequently
agreed to plead guilty to a reduced charge of cocaine possession as a third-degree felony
rather than a first-degree felony. Jordan also agreed to plead guilty to the third-degree-
felony charge of having weapons while under disability, third-degree-felony marijuana
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possession, and fifth-degree felony possession of criminal tools. He additionally agreed
to forfeit the items listed in the indictment. In exchange, the State agreed to dismiss the
two drug-trafficking charges, which were first-degree and third-degree felonies, as well as
the fourth-degree felony charge of having weapons while under disability. The State also
agreed to dismiss all firearm and major-drug-offender specifications. Finally, the parties
agreed to a sentence of at least six years in prison with the State being allowed to request
a longer term. At the conclusion of a plea hearing on August 6, 2020, the trial court
accepted Jordan’s plea, made findings of guilt, and ordered forfeiture of the items at issue.
{¶ 5} Following a presentence investigation, the matter proceeded to a sentencing
hearing on October 19, 2020. After hearing from respective counsel and Jordan, the trial
court imposed an aggregate prison term of nine years. In support, it reasoned:
As part of this negotiation, Count 1 is being dismissed, as trafficking
in cocaine, a felony of the first degree with a one-year firearm specification
and a major drug offender specification.
Count 2, possession of cocaine, which was filed as a felony of the
first degree, was amended to a felony of the third degree, and also had a
firearms specification and a major drug offender specification, both of which
were dismissed. Count 6, possession of marijuana, a felony of the third
degree, the defendant pled guilty to but that was with the firearm
specification being dismissed. Count 7, possession of criminal tools. He
pled to that offense but, again, the firearms specification was dismissed.
At the time of the defendant’s arrest he was employed through
AMPM Temporary Services, worked approximately one month. By trade,
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he’s a barber. At the time of these events going down [police] seized
$13,630 in U.S. currency from the defendant’s residence.
The court has considered the record, oral statements and purposes
and principles of sentencing under [R.C.] section 2929.11, the seriousness
factors under 2929.12, as well as recidivism factors under 2929.12, at all
times trying to determine a disposition that would meet the overall
guidelines punishing the defendant and protecting the public from future
crime by the defendant and others.
The court finds the following factors are applicable to this case and
this defendant: The offense—offense appears to have been committed as
part of an organized criminal activity. I find no factors that would indicate
any of these offenses were less serious than that normally constituting that
offense.
As to recidivism factors, there was prior adjudications of delinquency.
He was not rehabilitated to a satisfactory degree after the prior adjudication.
He has a history of criminal convictions and has not responded favorably to
sanctions previously imposed on all of those convictions. I find no genuine
remorse. I find no factors indicating recidivism is less likely. There’s no
military service record to consider. And the defendant scored very high on
the Ohio risk assessment survey.
[Section] 2929.12, as far as mandatory community control, is not
applicable. The defendant may very well be an addict, maybe had problems
in his life regarding his own issue with drugs, but did he ever stop to consider
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the lives that his drug dealing have had—imposed upon other—problems
with other people’s lives that were enhanced by his making money off
selling drugs? How many other lives have been ruined? How many families
have had to deal with an addict who can’t control his or her life? The
defendant was one of those people selling drugs. So I consider the
defendant’s problem, but I also take time to consider the victims.
It is the order of the court defendant shall serve a prison term of 36
months on Count 2, a prison term of 36 months on Count 3, and a prison
term of 24 months on Count 6, a prison term of 12 months on Count 7.
These terms will be run consecutively with each other. He’s to receive jail
time credit for two days.
The court finds consecutive sentences are necessary to protect the
public from future crime by the defendant and others. Consecutive
sentences are not disproportionate to the seriousness of the defendant’s
conduct and the danger that he poses to the public. The defendant’s history
of criminal conduct demonstrates consecutive sentences are necessary to
protect the public from future crime by the defendant.
(October 19, 2020 Transcript at 7-11.)
{¶ 6} The trial court also imposed a fine and ordered forfeiture of the items
specified in the indictment. This appeal followed.
{¶ 7} In his first assignment of error, Jordan challenges the knowing, intelligent,
and voluntary nature of his guilty plea. He advances three arguments. First, he contends
the trial court incorrectly advised him that he could face a driver’s license suspension of
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six months to five years on counts two, three, and six, whereas the possible suspension
applied only to counts two and six. Second, he claims the trial court addressed the firearm
and major-drug-offender specifications and, in so doing, confused him by failing to clarify
that the State was dismissing those specifications and that they would be presented to a
jury only if he elected to proceed to trial. Third, he argues that the trial court failed to
advise him that a guilty plea would waive all issues on appeal except jurisdictional issues
and the validity of the plea. In particular, Jordan contends he was not told that a guilty
plea would waive his ability to challenge the withdrawal of his motion to suppress and the
validity of search warrants.
{¶ 8} To “satisfy the requirements of due process, a plea of guilty * * * must be
knowing, intelligent, and voluntary, and the record must affirmatively demonstrate” as
much. State v. Chessman, 2d Dist. Greene No. 03-CA-100, 2006-Ohio-835, ¶ 15, citing
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A trial court
accordingly “must comply with Crim.R. 11(C)” before accepting a plea. (Citation omitted.)
State v. Russell, 2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6.
{¶ 9} Under Crim.R. 11(C)(2)(c), a defendant must be advised of certain
constitutional rights, and strict compliance with this part of the rule is required. State v.
Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5. Where a trial court fails
to comply strictly with Crim.R. 11(C)(2)(c), the defendant’s plea is invalid. See State v.
Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 16; State v. Veney, 120
Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31-32.
{¶ 10} Under Crim.R. 11(C)(2)(a), a trial court must determine whether a defendant
is “making [his] plea voluntarily, with understanding of the nature of the charges and of
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the maximum penalty involved,” and Crim.R. 11(C)(2)(b) requires that the court inform
the defendant of the consequences of the plea. See Crim.R. 11(C)(2)(a)-(b). Given that
these parts of the rule relate to non-constitutional issues, the “defendant must
affirmatively show prejudice to invalidate [his] plea” where the trial court fails to comply
fully with Crim.R. 11(C)(2)(a)-(b). (Citation omitted.) State v. Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765, 164 N.E.3d 286, ¶ 14. To show that he was prejudiced by the trial court’s
partial noncompliance with Crim.R. 11(C)(2)(a)-(b), the defendant must demonstrate that
he “would [not] otherwise have entered the plea.” Thompson at ¶ 5. Where a trial court
completely fails to comply with Crim.R. 11(C)(2)(a)-(b), however, a defendant’s plea
should be invalidated on appeal, and the defendant need not show prejudice. Dangler at
¶ 14.
{¶ 11} Here Jordan’s argument about the driver’s license suspension implicates
Crim.R. 11(C)(2)(a), which obligated the trial court to inform him about the maximum
penalty involved. The trial court advised Jordan that he faced a potential driver’s license
suspension of up to five years on three charges to which he was pleading guilty. In reality,
the possible suspension applied to only two of the charges. Nevertheless, the trial court
also made clear that driver’s license suspensions could not be ordered to run
consecutively. The trial court correctly told Jordan that if it imposed consecutive
sentences on the counts he faced a maximum driver’s license suspension of five years.
(Plea Tr. at 11.) The trial court ultimately imposed no driver’s license suspension in its
October 22, 2020 judgment entry. On this record, we find partial compliance with Crim.R.
11(C)(2)(a) and no conceivable prejudice to Jordan given the trial court’s failure to impose
any suspension.
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{¶ 12} We likewise find no merit in Jordan’s argument that the trial court invalidated
his plea by addressing the firearm and major-drug-offender specifications. The trial court
reviewed with Jordan the nature of the charges and specifications if he went to trial. The
trial court also reviewed the charges to which he was pleading guilty under the plea
agreement and the nature of the forfeiture provision. (Plea Tr. at 14-18.) At the conclusion
of the trial court’s explanation, defense counsel confirmed that Jordan understood “the
nature and elements of the offenses to which he’s pleading guilty and the elements of the
offenses that would have to be proven if he were to go to trial[.]” (Id. at 19.) The record
does not suggest that Jordan was confused by the trial court’s explaining what would
have to be proven if he went to trial. The trial court complied with Crim.R. 11(C)(2)(a),
and Jordan has not shown any prejudice.
{¶ 13} Finally, we reject Jordan’s argument about the trial court’s failing to tell him
a guilty plea would waive his ability to challenge the withdrawal of his motion to suppress
and the validity of search warrants. The trial court was not required to provide this
information. The fact that a guilty plea waives a defendant’s right to argue a suppression
motion on appeal is not one of the matters a trial court is obligated to address under
Crim.R. 11(C). State v. Hatton, 2d Dist. Montgomery No. 21153, 2006-Ohio-2670, ¶ 6;
see also State v. Reynolds, 12th Dist. Madison No. CA2018-02-005, 2018-Ohio-4942,
¶ 12 (“The failure to inform a defendant that a guilty plea waives certain rights on appeal
is not one of the specifically enumerated rights the trial court is required to discuss during
the Crim.R. 11 colloquy.”). The first assignment of error is overruled.
{¶ 14} In his second assignment of error, Jordan alleges three instances of
ineffective assistance of trial counsel. First, he contends his attorney provided ineffective
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assistance by withdrawing his suppression motion. Second, he claims his attorney failed
to investigate or to present any mitigating evidence at sentencing. Third, he asserts that
his attorney did not provide him with full discovery and did not tell him that a guilty plea
would waive his ability to raise suppression issues on appeal.
{¶ 15} When a convicted defendant alleges ineffective assistance of counsel, he
must demonstrate counsel’s performance was so deficient that counsel was not
functioning as the counsel guaranteed under the Sixth Amendment to the United States
Constitution and that counsel’s errors prejudiced him so as to deprive him of a reliable
result. 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, 538 N.E.2d 373 (1989). In assessing counsel’s
performance, “an objective review of counsel’s performance must be conducted in light
of professional norms prevailing when the representation took place.” State v. Herring,
142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d 1217, ¶ 68, citing Bobby v. Van Hook,
558 U.S. 4, 7, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009); Strickland at 688. “Under the
deficient-performance prong, the court should ‘indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.’ ”
Herring at ¶ 68, quoting Strickland at 689. “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.” (Citation omitted.) State v. Jordan, 2d Dist.
Montgomery No. 27208, 2017-Ohio-7342, ¶ 21.
{¶ 16} With the foregoing standards in mind, we see no ineffective assistance of
counsel. “[A] guilty plea waives all appealable errors, including claims of ineffective
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assistance of counsel, except to the extent that the errors precluded the defendant from
knowingly, intelligently, and voluntarily entering his or her guilty plea.” State v. Coffman,
2d Dist. Greene No. 2020-CA-45, 2021-Ohio-1601, ¶ 27, citing State v. Roebuck, 2d Dist.
Montgomery No. 24799, 2012-Ohio-1859, ¶ 13. This waiver applies to any claimed errors
regarding suppression issues, including the withdrawal of a motion to suppress. State v.
Crawford, 2d Dist. Montgomery No. 27046, 2017-Ohio-308, ¶ 8-9; State v. McDonall, 8th
Dist. Cuyahoga No. 75245, 1999 WL 1204853, at *3 (Dec. 16, 1999); see also State v.
Huddleson, 2d Dist. Montgomery No. 20653, 2005-Ohio-4029, ¶ 14 (“Since [the
defendant] pled guilty to the charged offenses, he has waived any argument that his
attorneys were ineffective in not filing a motion to suppress.”). 1 Jordan has not
demonstrated that defense counsel’s withdrawal of the motion precluded him from
entering a knowing, intelligent, and voluntary guilty plea. The validity of the plea is
governed by Crim.R. 11, and Jordan has not identified any deficiencies under the rule
that would render his plea invalid.
{¶ 17} Although Jordan attempts to argue the merits of the withdrawn suppression
motion, his guilty plea precludes him from doing so. In any event, Jordan’s argument lacks
merit. The sole basis for the one-page motion was that the State lacked a valid search
warrant. (March 3, 2020 Suppression Motion.) The motion itself did not elaborate on this
assertion. Defense counsel moved to withdraw the motion without explanation on May 7,
2020. The trial court sustained this motion.
1
Although Huddleson involved failure to file a suppression motion and the present case
involves withdrawal of such a motion, the two cases are analogous. Once defense
counsel withdrew Jordan’s motion to suppress it was as if no motion had been filed.
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{¶ 18} The pertinent search warrant affidavit was based on information obtained
through police investigation as well as information obtained from three confidential
sources.2 On appeal, Jordan reasons that the affidavit was fatally defective because it
failed to refer to the second and third confidential sources as “reliable” or “credible.” He
also argues that the second and third confidential sources provided information that was
based “heavily on hearsay conversations with other people[.]”
{¶ 19} Having reviewed the affidavit, which accompanies the presentence
investigation report, we believe defense counsel reasonably could have concluded that it
was sufficient to support the issuance of a search warrant. Through their own
investigation and information obtained from the first confidential source, who was
described in the affidavit as having proven “reliable” in the past, police identified Jordan
as an associate of a known drug trafficker. They also determined his place of residence
and where he worked as a barber. Police obtained a picture of Jordan in a vehicle with
the known drug trafficker, and they obtained text conversations between the two men.
They also discovered that the drug trafficker regularly was in the immediate vicinity of
Jordan’s house.
{¶ 20} The second confidential source reported drug activity at Jordan’s house.
This source also reported having heard that Jordan was “one of the biggest drug dealers
in Springfield.” The third confidential source reported that Jordan was selling “ounce
amounts of cocaine and crack/cocaine.” This source provided the name of Jordan’s
girlfriend and one of his customers. This source also reported personally seeing Jordan
2
Although police obtained several search warrants, the drugs and other items underlying
the charges against Jordan were found in his home. Therefore, our analysis will focus on
the search warrant affidavit pertaining to his home.
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in possession of more than $15,000. This source reported having spoken to someone
who had seen $100,000 in Jordan’s house. Finally, this source reported personally seeing
Jordan conduct a hand-to-hand drug transaction.
{¶ 21} Through their investigation, police obtained a letter from a prison inmate
identifying Jordan and his residence as a place to purchase drugs. After obtaining this
letter, police conducted a “trash pull” at Jordan’s residence. While searching a trash bag,
they found latex gloves and a baggie containing what was confirmed to be cocaine
residue. A second trash pull at a later date resulted in the discovery of baggies that
appeared to have been rinsed and a baggie containing a small piece of cocaine. While
searching the trash on that occasion, police detected a strong odor of marijuana coming
from the trash bag.
{¶ 22} In light of the foregoing information, defense counsel reasonably could have
believed that the search warrant affidavit sufficiently established probable cause.
Although the affidavit did not explicitly refer to the second and third confidential sources
as “reliable” or “credible,” the two trash pulls corroborated these sources’ allegations of
drug activity. Compare State v. Glynn, 2d Dist. Greene No. 2020-CA-13, 2020-Ohio-4763,
¶ 19-24 (finding an affidavit sufficient even though it failed to state that a confidential
source was “reliable” where independent police investigation corroborated the source’s
information). In addition, not all of the information provided by the second and third
confidential sources was hearsay. Significantly, the third confidential source reported
seeing Jordan in possession of more than $15,000 and seeing him conduct a hand-to-
hand drug transaction. But even disregarding all of the information provided by the second
and third confidential sources, defense counsel reasonably could have believed that the
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remainder of the affidavit sufficiently established probable cause. Therefore, the decision
to withdraw the suppression motion was a strategic matter within counsel’s discretion.
{¶ 23} As for Jordan’s argument that his attorney failed to investigate or to present
any mitigating evidence, we have recognized that defense counsel does “not have an
affirmative obligation to file a sentencing memorandum[.]” State v. Olsen, 2d Dist.
Montgomery No. 28011, 2019-Ohio-568, ¶ 13. We noted in Olsen that defense counsel
may elect only to advocate orally at the sentencing hearing. Id. Although Jordan
complains that his attorney made only a “brief statement” at sentencing, we see no
ineffective assistance. Jordan notes that his attorney neglected to mention his drug
addiction. He acknowledges, however, that the State itself brought this fact to the trial
court’s attention and that evidence of his drug addiction accompanied the presentence
investigation report. Jordan also challenges defense counsel’s treatment of his criminal
history, which counsel described as stemming from his “childhood” and “learning the
streets." (Sentencing Tr. at 6.) Jordan has failed to demonstrate what else defense
counsel could have said, and the remarks by counsel fell within the realm of reasonable
strategy. As for Jordan’s claim that defense counsel failed to present any “mitigation”
regarding his criminal history, the record does not reveal what investigation defense
counsel conducted or what mitigating evidence, if any, defense counsel possessed or
reasonably could have discovered. Therefore, Jordan’s “mitigation” argument fails to
establish ineffective assistance of counsel.
{¶ 24} We also reject Jordan’s ineffective-assistance argument based on his
attorney’s alleged failure to share full discovery with him and failure to tell him that a guilty
plea would waive suppression issues. As the State correctly points out, the record does
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not reveal what discovery defense counsel shared with Jordan or what counsel told him
regarding a guilty plea waiving suppression issues. Because these arguments rely on
information outside the record, they are not cognizable on direct appeal. State v. Qualls,
2d Dist. Montgomery No. 26423, 2015-Ohio-2182, ¶ 15. The second assignment of error
is overruled.
{¶ 25} In his third assignment of error, Jordan contends his nine-year prison
sentence is contrary to law. He primarily challenges the trial court’s imposition of
consecutive sentences while also noting that the trial court imposed a maximum sentence
for three of his four convictions. Although the trial court made the consecutive-sentence
findings required by R.C. 2929.14(C)(4), Jordan claims it impermissibly based those
findings on its belief that he was a major drug seller who was involved in “organized
criminal activity,” as evidenced by the dismissed charges, specifications, and forfeited
items.
{¶ 26} Jordan acknowledges that a trial court may give some sentencing
consideration to allegations forming the basis of dismissed charges. He asserts, however,
that a trial court may not give “unlimited consideration” to dismissed charges or base its
sentence on a conclusion that a defendant is guilty of more serious charges. Jordan
maintains that the trial court improperly did so here. In support of his argument, he relies
on State v. Blake, 3d Dist. Union No. 14-03-33, 2004-Ohio-1952, and State v. Fisher, 11th
Dist. Lake No. 2002-L-020, 2003-Ohio-3499.
{¶ 27} Upon review, we find no error in the trial court’s sentencing decision. As a
threshold matter, the trial court was not required to make any findings to impose statutory
maximum sentences. State v. Clark, 2d Dist. Champaign No. 2020-CA-19, 2021-Ohio-
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1427, ¶ 22. Therefore, to the extent that Jordan’s assignment of error briefly mentions
that aspect of the trial court’s decision, we find no error. We note too that “neither R.C.
2929.11 nor 2929.12 requires a trial court to make any specific factual findings on the
record.” (Citations omitted.) State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __
N.E.3d __, ¶ 20. These two statutes address the purposes of felony sentencing and
factors pertaining to the relative seriousness of a defendant’s offense and his likelihood
of recidivism. Although the trial court was not required to make findings under these
statutes, one of the “seriousness” factors is whether the defendant committed the offense
as part of organized criminal activity. See R.C. 2929.12(B)(7). The trial court found it
applicable, and we do not disagree. But even if we did disagree, “an appellate court may
not modify or vacate a felony sentence based upon a finding by clear and convincing
evidence that the record does not support the trial court’s ‘findings’ under R.C. 2929.11
and R.C. 2929.12.” State v. Hall, 2021-Ohio-1894, __ N.E.3d __, ¶ 38 (2d Dist.), citing
Jones at ¶ 42. Nor can we “modify or vacate a felony sentence based upon a finding that
the sentence is ‘contrary to law’ because it clearly and convincingly is not supported by
the record under R.C. 2929.11 and R.C. 2929.12.” Id. at ¶ 39, citing Jones at ¶ 32-39.
{¶ 28} We turn now to the primary issue Jordan raises in his third assignment of
error. As set forth above, he argues that the trial court erred in making consecutive-
sentence findings based on its belief that he was a major drug seller who in fact was guilty
of the original charges in the indictment, several of which had been dismissed along with
accompanying specifications pursuant to the plea agreement.
{¶ 29} In appeals “involving the imposition of consecutive sentences, R.C.
2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the findings
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underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under [R.C. 2929.14(C)(4)].’ ” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 28. “[W]here a trial court properly makes the findings mandated by R.C.
2929.14(C)(4), an appellate court may not reverse the trial court’s imposition of
consecutive sentences unless it first clearly and convincingly finds that the record does
not support the trial court's findings.”3 State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553,
¶ 38 (2d Dist.).
{¶ 30} Here the trial court made the findings required by R.C. 2929.14(C)(4), and
Jordan does not argue otherwise. As noted above, it stated: “The court finds consecutive
sentences are necessary to protect the public from future crime by the defendant and
others. Consecutive sentences are not disproportionate to the seriousness of the
defendant’s conduct and the danger that he poses to the public. The defendant’s history
of criminal conduct demonstrates consecutive sentences are necessary to protect the
public from future crime by the defendant.” (October 19, 2020 Sentencing Transcript at
10-11.) The trial court included these findings in its October 22, 2020 judgment entry.
{¶ 31} Jordan’s history of criminal conduct certainly supported the imposition of
consecutive sentences. The presentence investigation report reflected that his juvenile
record culminated in a period of confinement with the Ohio Department of Youth Services.
He continued to commit crimes as an adult. Between 1992 and the present, he had been
3
In his assignment of error, Jordan asserts that the trial court’s sentencing decision is
contrary to law. In the body of his argument, he also argues that it is not supported by the
record and that it constitutes an abuse of discretion. For purposes of the trial court’s
decision to impose consecutive sentences, the standard is whether the record clearly and
convincingly fails to support the trial court’s findings under R.C. 2929.14(C)(4).
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sentenced to prison at least seven times for offenses including aggravated drug
trafficking, carrying a concealed weapon, drug abuse, felonious assault with a firearm
specification, attempted tampering with evidence, aggravated drug possession,
possession of crack cocaine, having weapons while under disability, and possession of
cocaine.
{¶ 32} In the present case, Jordan pled guilty to felony offenses of cocaine
possession, marijuana possession, having weapons while under disability, and
possession of criminal tools. Despite the fact that trafficking charges had been dismissed
pursuant to the plea agreement, the trial court explicitly referenced Jordan selling drugs
and the impact the drug sales had on his “victims.” Therefore, it does appear that the trial
court considered drug-selling activity by Jordan when assessing consecutive-sentence
factors such as the seriousness of his conduct and the danger he posed to the public.
Based on the record before us, however, we see nothing improper about the trial court’s
determining that the facts underlying his possession convictions involved drug sales.
Indeed, the record supports no other conclusion.
{¶ 33} We consistently have recognized that “ ‘the evidence the court may consider
[at sentencing] is not confined to the evidence that strictly relates to the conviction offense
because the court is no longer concerned * * * with the narrow issue of guilt.’ ” State v.
Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 23, quoting State v. Bowser,
186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.). Among other
things, a sentencing court “may consider ‘hearsay evidence, facts related to charges that
were dismissed pursuant to a plea bargain, and allegations contained in a [presentence
investigation] report.’ ” State v. Davis, 2d Dist. Clark No. 2018-CA-49, 2019-Ohio-1904,
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¶ 7, quoting State v. Bautista, 2d Dist. Clark No. 2015-CA-74, 2016-Ohio-5436, ¶ 12. In
Barnes, we rejected an argument that the trial court had erred in imposing consecutive
sentences based on its consideration of “the facts underlying the offenses to which [the
defendant] did not plead guilty[.]” Barnes at ¶ 23.
{¶ 34} Here the trial court actually considered the facts underlying the offenses to
which Jordan did plead guilty. In essence, the trial court found that the nature of his
possession of cocaine and marijuana was for purposes of resale rather than for purposes
of personal use. The trial court reasonably concluded that this made Jordan’s offenses
relatively more serious and increased the need to protect the public from future crime.
That Jordan possessed cocaine and marijuana for purposes of resale was supported by
undisputed facts, including the quantity of drugs found in his house along with multiple
digital scales and two handguns, as well as the baggies, latex gloves, and cocaine residue
found in his trash. His guilty plea to possession of criminal tools, namely the digital scales,
also supported a conclusion that he was using the scales for purposes of weighing drugs
to sell. In sentencing Jordan on the possession charges, the trial court was not required
to blind itself to the undeniable nature of his possession simply because he had avoided
more serious drug-trafficking charges and specifications through a plea agreement.
{¶ 35} Jordan’s reliance on the Third District’s opinion in Blake and the Eleventh
District’s opinion in Fisher fails to persuade us otherwise. In Fisher, the defendant was
charged with murder but pled guilty to voluntary manslaughter under a plea bargain. In
imposing a statutory maximum sentence, the trial court expressed its opinion that the
defendant in fact was guilty of murder. While recognizing that a trial court may “consider”
a dismissed charge, the Eleventh District reasoned that a dismissed charge should not
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be “relied upon” when imposing sentence and that a sentencing court should not
“espouse its personal belief regarding a defendant’s guilt with respect to that higher
charge[.]” Fisher at ¶ 24-25. In finding reversible error, the Eleventh District observed that
“no facts were presented during the sentencing hearing on which the court could
reasonably and legitimately” conclude that the defendant was guilty of murder. Id. at ¶ 26.
{¶ 36} In Blake, the defendant was charged with four counts of rape and four
counts of gross sexual imposition involving two young girls. The State voluntarily
dismissed all but one count of rape and one count of gross sexual imposition involving
one of the girls. In exchange for the defendant’s guilty plea to the remaining gross sexual
imposition charge, the State then dismissed the remaining rape charge. The trial court
imposed a statutory maximum five-year prison sentence for the gross sexual imposition
conviction. In support, the trial court expressed its belief that the defendant had committed
all of the charged offenses and that he should be punished for them. On appeal, the Third
District cited Fisher and noted the absence of evidence that the defendant had committed
those other offenses. Blake at ¶ 6. The appellate court reasoned that the dismissed
charges could not be the sole basis for imposing a maximum sentence. It also reasoned
that the trial court effectively had convicted the defendant of those other offenses without
a trial.4 Id.
{¶ 37} Upon review, we find Fisher and Blake to be distinguishable. The fact that
4
We are unconvinced that the trial court’s consideration of the seven dismissed charges
in Fisher when imposing a five-year sentence on the remaining count was tantamount to
convicting him of the dismissed charges. If the defendant had been convicted of four
counts of rape and four counts of gross sexual imposition involving children under age
13, he would have received more than a five-year sentence.
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Jordan possessed cocaine and marijuana for the purpose of resale is supported by much
more than the dismissed trafficking charges. As we explained above, the record
establishes beyond reasonable dispute that Jordan planned to sell the drugs found in his
house. Again, this was made evident by the quantity of drugs, the presence of scales and
firearms, the discovery of baggies, latex gloves, and cocaine residue in his trash, and his
guilty plea to possession of criminal tools in connection with the scales. Unlike Fisher and
Blake, the record does contain evidence to support the findings underlying the trial court’s
consecutive sentences. Finally, the trial court did not impose consecutive sentences
based solely on its belief that Jordan was a major drug seller. The trial court also
considered his extensive criminal record, as set forth in the PSI report. It expressly found
that the “defendant’s history of criminal conduct demonstrates consecutive sentences are
necessary to protect the public from future crime by the defendant.” (October 19, 2020
Sentencing Transcript at 10-11.) For the foregoing reasons, we see no error in the trial
court’s imposition of consecutive sentences.5 The third assignment of error is overruled.
{¶ 38} The judgment of the Clark County Common Pleas Court is affirmed.
.............
HALL, J. and WELBAUM, J., concur.
5
The State asserts that Fisher and Blake also are distinguishable insofar as they involved
maximum sentences imposed based on consideration of the statutory “seriousness” and
“recidivism” factors in R.C. 2929.12, whereas the present case involves consecutive
sentences imposed under R.C. 2929.14(C)(4). Although we are not entirely persuaded
that this is a meaningful distinction, we need not dwell on it because we have found Fisher
and Blake distinguishable for other reasons.
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Copies sent to:
Andrew P. Pickering
L. Patrick Mulligan
Hon. Richard J. O’Neill