State v. Richards , 2019 Ohio 5325 ( 2019 )

[Cite as State v. Richards, 2019-Ohio-5325.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-259
v. : (C.P.C. No. 18CR-2025)
Gregory L. Richards, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 24, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Kura, Wilford & Schregardus Co., L.P.A., and
Sarah M. Schregardus, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Defendant-appellant, Gregory L. Richards, appeals from a judgment of the
Franklin County Court of Common Pleas following his conviction and sentence for
involuntary manslaughter and trafficking in heroin. Because the trial court properly
imposed consecutive sentences, we affirm.
{¶ 2} On April 27, 2018, a Franklin County Grand Jury indicted appellant for
involuntary manslaughter in violation of R.C. 2903.04, a felony of the first degree;
corrupting another with drugs in violation of R.C. 2925.02, a felony of the second degree;
aggravated trafficking in drugs in violation of R.C. 2925.03, a felony of the fourth degree;
and trafficking in heroin in violation of R.C. 2925.03, a felony of the fifth degree. Appellant
initially entered a not guilty plea.
No. 19AP-259 2
{¶ 3} On February 13, 2019, the trial court held a plea hearing at which the
prosecutor provided the following factual summary. On December 24, 2017, appellant was
renovating an apartment and found a baggie containing a substance he thought to be
heroin. He provided the drugs to a female acquaintance, which she administered to herself
while seated in appellant's vehicle. Shortly thereafter, the woman lost consciousness.
Appellant attempted CPR, then drove her to a fire station for treatment. The woman was
ultimately transported to a nearby hospital where she was pronounced dead. The coroner's
toxicology report listed the woman's cause of death as acute fentanyl intoxication.
{¶ 4} Following this factual recitation and a Crim.R. 11 colloquy, appellant entered
a guilty plea to involuntary manslaughter and trafficking in heroin as charged in the
indictment. The trial court accepted appellant's guilty plea, found him guilty, entered a
nolle prosequi on the remaining counts in the indictment, and delayed sentencing for the
preparation of a presentence investigation report.
{¶ 5} At the March 28, 2019 sentencing hearing, the trial court imposed a 6-year
prison term for involuntary manslaughter and a 12-month prison term for trafficking in
heroin. The court ordered the sentences to be served consecutively for a total of 7 years.
{¶ 6} Appellant appealed, asserting a single assignment of error:
The trial court erred when it imposed consecutive sentences
contrary to law.
{¶ 7} In his sole assignment of error, appellant challenges the imposition of
consecutive sentences. "An appellate court will not reverse a trial court's sentencing
decision unless the evidence is clear and convincing that either the record does not support
the sentence or that the sentence is contrary to law." State v. Robinson, 10th Dist. No.
15AP-910, 2016-Ohio-4638, ¶ 7, citing State v. Chandler, 10th Dist. No. 04AP-895, 2005-
Ohio-1961, ¶ 10; R.C. 2953.08(G)(2).
{¶ 8} Because appellant failed to object to the imposition of consecutive sentences
at the sentencing hearing, our review is limited to consideration of whether the trial court
committed plain error. State v. Jackson, 14AP-748, 2015-Ohio-5114, ¶ 30. Under Crim.R.
52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the trial court." An appellate court recognizes plain
error "with the utmost caution, under exceptional circumstances and only to prevent a
miscarriage of justice." State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Plain error is not
No. 19AP-259 3
present unless, but for the error complained of, the outcome would have been different.
State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.). When the record
demonstrates that the trial court failed to make the findings required by R.C. 2929.14(C)(4)
before imposing consecutive sentences on multiple offenses, the sentence is contrary to law
and constitutes plain error. State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 18.
{¶ 9} "[A]bsent an order requiring sentences to be served consecutively, terms of
incarceration are to be served concurrently." State v. Sergent, 148 Ohio St.3d 94, 2016-
Ohio-2696, ¶ 16, citing R.C. 2929.41(A). However, a trial court has discretion to impose
consecutive sentences for multiple prison terms pursuant to R.C. 2929.14(C)(4). To do so,
the trial court must make at least three distinct findings before imposing consecutive
sentences: (1) that consecutive sentences are necessary to protect the public from future
crime or to punish the offender; (2) that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to the danger the offender poses to the public;
and (3) that one or more of the following subsections 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.
R.C. 2929.14(C)(4).
{¶ 10} A trial court seeking to impose consecutive sentences must make the findings
required by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into
the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus. A
trial court need not, however, state reasons to support its findings. Id. Nor is the trial court
required "to give a talismanic incantation of the words of the statute, provided that the
necessary findings can be found in the record and are incorporated into the sentencing
No. 19AP-259 4
entry." Id. at ¶ 37. "[A] word-for-word recitation of the language of the statute is not
required, and as long as the reviewing court can discern that the trial court engaged in the
correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld." Id. at ¶ 29.
{¶ 11} In Bonnell, the sentencing court imposed consecutive sentences totaling
eight years and five months pursuant to Bonnell's guilty plea to three third-degree-felony
counts of burglary and one fifth-degree-felony count of tampering with coin machines. The
court characterized Bonnell's criminal record as " 'atrocious' " and that he had shown " 'very
little respect for society and the rules of society.' " Id. at ¶ 9. The Supreme Court of Ohio
concluded that it could "discern from the trial court's statement that Bonnell had 'shown
very little respect for society and the rules of society' that it found a need to protect the
public from future crime or to punish Bonnell." Id. at ¶ 33. The court further concluded
that "the court found that Bonnell's 'atrocious' record related to a history of criminal
conduct that demonstrated the need for consecutive sentences to protect the public from
future harm." Id. However, the court determined that it could not "glean from the record
that the trial court found consecutive sentences were not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public."
Id. at ¶ 36. In addition, the court averred, "[n]or is it apparent which of the three additional
findings set forth in R.C. 2929.14(C)(4)(a), (b), and (c) were made by the trial court." Id.
Accordingly, the court held that "the imposition of consecutive sentences in this case is
contrary to law." Id. at ¶ 37.
{¶ 12} In the present case, the trial court stated at the sentencing hearing:
I have considered the presentence investigation as well as the
defendant's attitude and demeanor throughout these
hearings. The Court is going to impose the following sentence.
As to Count One, involuntary manslaughter, 6 years at the
Ohio Department of Rehabilitation and Corrections. That will
run consecutive to a 12-month sentence for a total 7-year
prison term.
The Court finds that Counts One and Four do not merge for
purposes of sentencing. The Court finds that the two offenses
constitute separate and distinguishable harms and that no
single prison sentence for any term would adequately punish
the offender or protect the public from future harm.
No. 19AP-259 5
The fact that * * * it may have been 38 years ago when you
were convicted of corrupting another with drugs, but, you
know, that's what it makes it more gulling, that you're still,
you know - - in - - 2017, you're doing it again to someone who
you know who is sick, who you know has this addiction, this
affliction. You've shown absolutely zero remorse for your
conduct and the Court thinks that a 7-year term of
imprisonment is the appropriate sentence.
(Mar. 28, 2019 Sentencing Tr. at 20-21.)
{¶ 13} In its subsequent judgment entry, the court made all the findings required
by R.C. 2929.14(C)(4), including a finding that "consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and the danger the offender
poses to the public." (Mar. 28, 2019 Jgmt. Entry at 2.)
{¶ 14} Here, appellant contends that the trial court failed to make the
"disproportionate" finding under R.C. 2929.14(C)(4) on the record at the sentencing
hearing. Appellant does not argue that the trial court failed to make the "necessary"
finding under R.C. 2929.14(C)(4) or any of the three alternative findings under R.C.
2929.14(C)(4)(a), (b), or (c).
{¶ 15} In several recent cases, this court has considered the proportionality
argument raised by appellant. In State v. Adams, 10th Dist. No. 13AP-783, 2014-Ohio-
1809, this court concluded that the sentencing court's "use of the phrase 'does not
discredit the conduct or danger imposed by the defendant' shows that the trial court
employed the required proportionality analysis in imposing a consecutive sentence." Id.
at ¶ 21. We reasoned, "[t]he trial court's remarks reveal that it weighed the severity of a
consecutive sentence against the seriousness of the offenses, the irreparable harm
inflicted on appellant's young victim, and the future risk to the public posed by appellant's
particular criminal conduct. The trial court's phraseology in this case is conceptually
equivalent to the statutory language, even though the trial court eschewed the phrase 'not
disproportionate.' " Id. at ¶ 21.
{¶ 16} In State v. Hillman, 10th Dist. No. 14AP-252, 2014-Ohio-5760, we held that
the sentencing court made the proportionality finding required by R.C. 2929.14(C)(4)
based upon its statements that: (1) "anything less than consecutive sentences would
demean the seriousness of the offense;" (2) Hillman did not "appreciate how serious a
burglary is as an offense" because "it not only shows a very serious disregard for people's
No. 19AP-259 6
privacy and people's property, it shows a very serious disregard for people's safety;"
and (3) there were "several different victims in this case." Id. at ¶ 68.
{¶ 17} We again addressed a proportionality argument in State v. Hargrove, 10th
Dist. No. 15AP-102, 2015-Ohio-3125. There, we concluded that the trial court's
statements that Hargrove's criminal conduct represented " 'the worst form of the
offense' " and " 'the most serious type of offense' " constituted a factual finding "on which
this court can conclude that the sentencing court engaged in the required proportionality
analysis by finding that consecutive service is 'not disproportionate to the seriousness of
[appellant's] conduct.' " Id. at ¶ 16, 17, quoting State v. Hartman, 7th Dist. No. 13 JE 36A,
2014-Ohio-5718, ¶ 31. We further concluded that the trial court's statements that a 15-
month sentence for a similar crime in 2007 "didn't help, so maybe he should go to prison
more this time," that "he's done it before in 2007, for which he was in prison, and he
continued to do the same thing," that there were at least 56 victims in the case, and that
Hargrove "prey[ed] upon * * * elderly sympathetic victims," permitted this court "to
conclude that the trial court found not only that consecutive service is necessary to punish
appellant but also that consecutive service is not disproportionate to the danger appellant
poses to the public." Id. at ¶ 18, 21.
{¶ 18} In so holding, we noted that "[t]he relevant case law shows that appellate
courts have been fairly deferential to the trial court when reviewing the transcript of a
sentencing hearing to determine whether the trial court has made the findings required
by R.C. 2929.14(C)(4)." Id. at ¶ 19. We also distinguished Bonnell, noting that "[u]nlike
the trial court in Bonnell, the sentencing court in this case set forth the factual basis for
its decision to impose a consecutive term of imprisonment." Id. at ¶ 21.
{¶ 19} We again concluded that the record supported a proportionality finding in
State v. Cardwell, 10th Dist. No. 15AP-1076, 2016-Ohio-5591, where "the trial court made
findings regarding the seriousness of appellant's conduct as it relates to the criminal
offense and the inadequacy of a single sentence to both fit appellant's conduct and
adequately protect the public." Id. at ¶ 13.
{¶ 20} However, in State v. Knowles, 10th Dist. No. 16AP-345, 2016-Ohio-8540,
this court rejected the state's urging that we find the trial court engaged in the
proportionality analysis required by R.C. 2929.14(C)(4) based on its statements that
"what you've done is a horrendous crime, and the minimum you should pay is 24 to life,"
No. 19AP-259 7
and that it "imposed the consecutive sentence on the Weapon Under Disability because
this gentleman was on probation to the Court, and the Court feels that in order to protect
it's necessary that a consecutive sentence be imposed." Knowles at ¶ 45. Likening the
trial court's statements to those in Bonnell, we concluded that "[c]onsistent with Bonnell,
we cannot discern from the trial court's statements that it made the proportionality
finding required by R.C. 2929.14(C)(4)." Knowles at ¶ 46.
{¶ 21} In State v. Fields, 10th Dist. No. 16AP-417, 2017-Ohio-661, we found that
the trial court's statement that "I do not think that a single prison sentence could
adequately reflect the seriousness of the conduct, and [appellant's] history of criminal
conduct demonstrates that consecutive sentences are necessary" equated to a
proportionality finding "even though the trial court employed the language of R.C.
2929.14(C)(4)(b), rather than the specific language of R.C. 2929.14(C)(4)." Fields at ¶ 20.
We reasoned, "given the high degree of overlap between these two sections of the statute,
the trial court's use of the specific language of R.C. 2929.14(C)(4)(b), rather than the
language specified by R.C. 2929.14(C)(4), does not alter our perception that the trial court
conducted the necessary proportionality analysis and made the required finding." Fields
at 20.
{¶ 22} In State v. Balderson, 10th Dist. No. 17AP-690, 2018-Ohio-3683, the
sentencing court imposed consecutive sentences upon finding that "because these
offenses constitute an ongoing course of conduct, the court believes that no single
sentence can satisfy that course of conduct, the danger that that conduct poses to the
community, and in order to ensure the safety of the community." Id. at ¶ 10. Noting that
the trial court did not expressly reference proportionality, we found that the language
employed by the trial court was "more akin to the finding in R.C. 2929.14(C)(4)(b)" and
that such statement "equated to a proportionality/danger to the public finding." Id. at
¶ 12, citing Fields. We concluded that "[b]y stating that 'no single sentence can satisfy that
course of conduct,' the trial court weighed the severity of consecutive sentences against
the seriousness of the conduct. This phraseology is sufficient to indicate that the trial
court engaged in a proportionality analysis even though it did not use the statutory
language." Id.
{¶ 23} In State v. Dixon, 10th Dist. No. 17AP-884, 2018-Ohio-3759, we reviewed a
sentencing court's consecutive sentence finding that was nearly identical to that in
No. 19AP-259 8
Balderson. Again relying on Fields, we concluded that "by stating 'no single sentence can
satisfy that course of conduct,' * * * the trial court engaged in a proportionality analysis
even though it did not use the statutory language." Id. at ¶ 10.
{¶ 24} Most recently, in State v. Ali, 10th Dist. No. 18AP-935, 2019-Ohio-3864, we
held the trial court made the requisite proportionality finding upon stating that "because
these offenses constitute an ongoing course of conduct, because the court believes that no
single sentence can satisfy that course of conduct, the danger that the conduct poses to
the community, and in order to ensure the safety of the community, those sentences will
run consecutive with each other." Id. at ¶ 31. We further stated, "[u]pon a review of the
transcript of the sentencing hearing and the judgment entry, we disagree [that the trial
court did not make the second finding under R.C. 2929.14(C)(4).]" Ali at ¶ 33. Relying
on Dixon and Cardwell, we concluded that "[a]lthough the trial court did not use the word
'disproportionate,' it nonetheless addressed the seriousness of Ali's conduct, the danger
Ali poses to the public, and the inadequacy of a single sentence." Ali at ¶ 33.
{¶ 25} As we noted in Hargrove, and upon review of relevant case law from this
court, we have employed a fairly deferential approach with regard to assessing trial court
compliance with R.C. 2929.14(C)(4). Indeed, in our most recent analysis, we reviewed
both "the transcript of the sentencing hearing and the judgment entry" in concluding that
the trial court complied with the proportionality portion of R.C. 2929.14(C)(4). Ali at
¶ 33.
{¶ 26} Here, as in Fields, Balderson, Dixon, and Ali, the trial court's statement at
the sentencing hearing that "the two offenses constitute separate and distinguishable
harms and that no single prison sentence for any term would adequately punish the
offender or protect the public from future harm" is akin to a finding under R.C.
2929.14(C)(4)(b), and, as such, constitutes a factual finding on which this court can
conclude that the sentencing court found that consecutive service is not disproportionate
to the seriousness of appellant's conduct. The trial court further found that appellant had
been convicted of corrupting another with drugs 38 years prior to the instant offense, and
had presently done the same thing to an individual he knew to have a drug addiction, with
zero remorse for his actions. These statements of fact allow us to conclude that the trial
court found that consecutive service is not disproportionate to the danger appellant poses
to the public.
No. 19AP-259 9
{¶ 27} To be sure, the trial court did not expressly employ the term
"disproportionate" in its consecutive sentence findings. However, as in the case law cited
above, we nonetheless conclude that the trial court's factual findings addressed the
seriousness of appellant's conduct, considered the danger he poses to the public, and the
inadequacy of a single sentence. Ali. In addition, the trial court stated in the sentencing
entry that "consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and the danger the offender poses to the public."
{¶ 28} As a result, upon review of the sentencing transcript and the judgment
entry, we can discern from the record that the trial court engaged in the appropriate
analysis and made the requisite proportionality finding. We acknowledge that it would
have been better practice for the trial court to recite the statute's verbiage, as it did in its
judgment entry, to avoid any ambiguity on appeal. However, the deviation from the
statutory language in the present case is not so egregious as to render the trial court's
sentence clearly and convincingly contrary to law. Accordingly, we conclude that the trial
court did not err, let alone plainly err, in imposing consecutive sentences. We thus
overrule appellant's assignment of error.
{¶ 29} Having overruled appellant's sole assignment of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and NELSON, JJ., concur.