[Cite as State v. Rose, 2018-Ohio-4888.]

COURT OF APPEALS 

HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsADAM M. ROSE 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Patricia A. Delaney, J. 

: Hon. Earle E. Wise, J. 

: 

: 

: Case No. 18CA005 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County 

Court of Common Pleas, Case No. 

17CR080 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: December 6, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

SEAN WARNER DAVID M. HUNTER 

Prosecuting Attorney 244 West Main Street 

Holmes County Prosecutor’s Office Loudonville, OH 44842 

164 East Jackson Street 

Millersburg, OH 44654 
[Cite as State v. Rose, 2018-Ohio-4888.]

Gwin, P.J. 

{¶1} Appellant Adam M. Rose [“Rose”] appeals his conviction and sentence after 

a negotiated guilty plea in the Holmes County Court of Common Pleas. 

Facts and Procedural History 

{¶2} Rose was charged by Grand Jury Indictment on October 10, 2017 with, 

three counts of Domestic Violence in violation of R.C. 2919.25(A), two counts of 

Aggravated Menacing in violation of R.C. 2903.21(A), two counts of Felonious Assault in 

violation of R.C. 2903.11(A)(1), two counts of Abduction in violation of R.C. 2905.02(A)(2), 

two counts of Petty Theft in violation of R.C. 2913.02(A)(1), Prohibitions concerning 

companion animals in violation of R.C. 959.131 and Kidnapping in violation of R.C. 

2905.01(A)(3). 

{¶3} Based upon a plea arrangement Rose pled guilty to two counts of Domestic 

Violence - misdemeanors of the first degree, one count of Aggravated Menacing - a 

misdemeanor of the first degree, one count of attempted Aggravated Assault - a felony of 

the fifth degree, one count of Abduction - a felony of the third degree, one count of Petty 

Theft - a misdemeanor of the first degree and one count of Prohibitions Concerning 

Companion Animals - a felony of the fifth degree. 

{¶4} On May 10, 2018, Rose was sentenced on his guilty plea to a term of 

incarceration of thirty-six months on the Abduction charge, twelve months each on the 

Prohibitions Concerning Companion Animals and Attempted Aggravated Assault to be 

served consecutively for a total period of incarceration of sixty (60) months. The trial court 

further sentenced Rose to jail terms of six months each on the Domestic Violence 
Holmes County, Case No. 18CA005 3 

charges, Aggravated Menacing charge and Petty Theft charge to be served concurrently 

with each other and the sixty-month prison sentence imposed for the felony offenses. 

Assignments of Error 

{¶5} Rose raises two assignments of error, 

{¶6} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE 

MAXIMUM SENTENCE FOR HIS FELONY CONVICTION. 

{¶7} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO 

CONSECUTIVE SENTENCES FOR HIS FELONY CONVICTIONS. 

I. & II. 

STANDARD OF APPELLATE REVIEW. 

{¶8} We review felony sentences using the standard of review set forth in R.C. 

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22; 

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence 

and remand for resentencing where we clearly and convincingly find that either the record 

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D), 

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. 

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28. 

{¶9} Accordingly, pursuant to Marcum this Court may vacate or modify a felony 

sentence on appeal only if it determines by clear and convincing evidence that: (1) the 

record does not support the trial court's findings under relevant statutes, or (2) the 

sentence is otherwise contrary to law. 
Holmes County, Case No. 18CA005 4 

{¶10} Clear and convincing evidence is that evidence “which will provide in the 

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” 

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the 

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the 

degree of proof required to sustain an issue must be clear and convincing, a reviewing 

court will examine the record to determine whether the trier of facts had sufficient 

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 

120 N.E.2d 118. 

ISSUES FOR APPEAL. 

a).Whether the trial court properly imposed the maximum sentence in Rose’s case. 

b). Whether the trial court properly imposed consecutive sentences in Rose’s case. 

R.C. 2929.13(B). 

{¶11} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony. 

Rose plead guilty to two felonies of the fifth degree. In relevant part the statute provides, 

 (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an 

offender is convicted of or pleads guilty to a felony of the fourth or fifth 

degree that is not an offense of violence or that is a qualifying assault 

offense, the court shall sentence the offender to a community control 

sanction or combination of community control sanctions if all of the following 

apply: 

 (i) The offender previously has not been convicted of or pleaded 

guilty to a felony offense. 
Holmes County, Case No. 18CA005 5 

 (ii) The most serious charge against the offender at the time of 

sentencing is a felony of the fourth or fifth degree.

 (iii) If the court made a request of the department of rehabilitation and 

correction pursuant to division (B)(1)(c) of this section, the department, 

within the forty-five-day period specified in that division, provided the court 

with the names of, contact information for, and program details of one or 

more community control sanctions that are available for persons sentenced 

by the court. 

Emphasis added. R.C. 2929.13(B)(1)(b) further provides, 

 (b) The court has discretion to impose a prison term upon an offender 

who is convicted of or pleads guilty to a felony of the fourth or fifth degree 

that is not an offense of violence or that is a qualifying assault offense if any 

of the following apply: 

 (i) The offender committed the offense while having a firearm on or 

about the offender’s person or under the offender’s control. 

 (ii) If the offense is a qualifying assault offense, the offender caused 

serious physical harm to another person while committing the offense, and, 

if the offense is not a qualifying assault offense, the offender caused 

physical harm to another person while committing the offense.

 (iii) The offender violated a term of the conditions of bond as set by 

the court.

 (iv) The court made a request of the department of rehabilitation and 

correction pursuant to division (B)(1)(c) of this section, and the department, 
Holmes County, Case No. 18CA005 6 

within the forty-five-day period specified in that division, did not provide the 

court with the name of, contact information for, and program details of any 

community control sanction that is available for persons sentenced by the 

court. 

 (v) The offense is a sex offense that is a fourth or fifth degree felony 

violation of any provision of Chapter 2907. of the Revised Code. 

 (vi) In committing the offense, the offender attempted to cause or 

made an actual threat of physical harm to a person with a deadly weapon. 

 (vii) In committing the offense, the offender attempted to cause or 

made an actual threat of physical harm to a person, and the offender 

previously was convicted of an offense that caused physical harm to a 

person.

 (viii) The offender held a public office or position of trust, and the 

offense related to that office or position; the offender’s position obliged the 

offender to prevent the offense or to bring those committing it to justice; or 

the offender’s professional reputation or position facilitated the offense or 

was likely to influence the future conduct of others. 

 (ix) The offender committed the offense for hire or as part of an 

organized criminal activity. 

 (x) The offender at the time of the offense was serving, or the 

offender previously had served, a prison term. 
Holmes County, Case No. 18CA005 7 

 (xi) The offender committed the offense while under a community 

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

bond or personal recognizance. 

Emphasis added. 

{¶12} In the case at bar, Rose plead guilty to Abduction, a felony of the third 

degree. Rose was previously convicted of Robbery and Felonious Assault. (Sent. T. at 

4). Rose was on probation at the time of committing these offenses. (Sent. T. at 16). 

Accordingly, the court had discretion to impose a prison term for the fifth degree felonies. 

R.C. 2929.13(C). 

{¶13} R.C. 2929.13(C) applies to one convicted of a third degree felony. Rose 

pled guilty to one felony of the third degree. 

{¶14} According to R.C. 2929.13(C), when determining whether a third-degree 

felony warrants a prison sentence, the trial court is to consider the seriousness and 

recidivism factors contained in R.C. 2929.12. As well, the trial court is to consider the 

purposes and principles of sentencing outlined in R.C. 2929.11. The purposes and 

principles of felony sentencing are to protect the public from future crime by the offender 

and others and to punish the offender. R.C. 2929.11. In order to achieve these purposes 

and principles, the trial court must consider the need for incapacitating the offender, 

deterring the offender and others from future crime, rehabilitating the offender, and 

making restitution to the victim of the offense, the public, or both. R.C. 2929.11(A). 

Additionally, the sentence must be commensurate with, and not demeaning to, the 

seriousness of the offender’s conduct and its impact on the victims. R.C. 2929.11(B). 
Holmes County, Case No. 18CA005 8 

R.C. 2929.11 and R.C. 2929.12. 

{¶15} The Marcum court further noted, 

 We note that some sentences do not require the findings that R.C. 

2953.08(G) specifically addresses. Nevertheless, it is fully consistent for 

appellate courts to review those sentences that are imposed solely after 

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard 

that is equally deferential to the sentencing court. That is, an appellate court 

may vacate or modify any sentence that is not clearly and convincingly 

contrary to law only if the appellate court finds by clear and convincing 

evidence that the record does not support the sentence. 

146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added). 

{¶16} R.C. 2929.11(A) governs the purposes and principles of felony sentencing 

and provides that a sentence imposed for a felony shall be reasonably calculated to 

achieve the two overriding purposes of felony sentencing, which are (1) to protect the 

public from future crime by the offender and others, and (2) to punish the offender using 

the minimum sanctions that the court determines will accomplish those purposes. 

Further, the sentence imposed shall be “commensurate with and not demeaning to the 

seriousness of the offender's conduct and its impact on the victim, and consistent with 

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B). 

{¶17} R.C. 2929.12 sets forth the seriousness and recidivism factors for the 

sentencing court to consider in determining the most effective way to comply with the 

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a 

non-exhaustive list of factors a trial court must consider when determining the 
Holmes County, Case No. 18CA005 9 

seriousness of the offense and the likelihood that the offender will commit future offenses. 

{¶18} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the 

court discussed the effect of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court 

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have 

full discretion to impose a prison sentence within the statutory range and are no longer 

required to make findings or give their reasons for imposing maximum, consecutive, or 

more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See 

also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v. 

Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823. 

{¶19} “Thus, a record after Foster may be silent as to the judicial findings that 

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12. 

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C. 

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13, 

see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v. 

Firouzmandi supra at ¶ 29. 

{¶20} Thus, post-Foster, “there is no mandate for judicial fact-finding in the 

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster 

at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 

4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are 

still required to consider the general guidance factors in their sentencing decisions. 

{¶21} There is no requirement in R.C. 2929.12 that the trial court states on the 

record that it has considered the statutory criteria concerning seriousness and recidivism 
Holmes County, Case No. 18CA005 10 

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State 

v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the 

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its 

findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v. 

Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to 

address each R.C. 2929.12 factor individually and make a finding as to whether it was 

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19 

(“... R.C. 2929.12 does not require specific language or specific findings on the record in 

order to show that the trial court considered the applicable seriousness and recidivism 

factors”). (Citations omitted). 

{¶22} In the case at bar, the trial court heard the victim, the victim’s stepfather, the 

victim’s sister and the victim’s mother. (Sent. T. at 9-12.) The court heard from Rose’s 

attorney, the state’s attorney and Rose. The trial court reviewed the presentence 

investigation report, the investigation reports, the victim impact statements and the 

appellant’s sentencing memorandum. (Sent. T. at 16). 

{¶23} In the case at bar, the record supports that the harm caused the victim was 

“serious physical harm” [2929.12(B)(2)]. (Sent. T. at 16). The offenses were also more 

serious because Rose used his relationship with the victim to facilitate the offenses. 

[2929.12(B)(6)]. (Sent. T. at 16). None of the factors set forth in 2929.12(C) are 

applicable to render the offenses “less serious.” (Sent. T. at 16). Rose was on probation 

at the time he committed the offenses R.C. 2929.12(C)(1) (Sent. T. at 16). Rose had not 

been rehabilitated after his previous convictions. R.C. 2929.12(C)(3) (Sent. T. at 16). 

{¶24} Accordingly, the trial court considered the purposes and principles of 
Holmes County, Case No. 18CA005 11 

sentencing [R.C. 2929.11] as well as the factors that the court must consider when 

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation 

to state reasons to support its findings. Nor is it 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 entry. 

R.C. 2929.13(D). 

{¶25} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or 

second degree, for a felony drug offense that is a violation of any provision of Chapter 

2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison 

term is specified as being applicable, and for a violation of division (A)(4) or (B) of section 

2907.05 of the Revised Code for which a presumption in favor of a prison term is specified 

as being applicable. Rose was not convicted of a felony of the first or second degree. 

Accordingly, R.C. 2929.13(D) does not apply to Rose’s case. 

R.C. 2929.14 (B)(2)(e). 

{¶26} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court 

can impose upon a defendant under specified circumstances. Rose was not given an 

additional prison sentence. 

R.C. 2929.14 (C)(4) Consecutive Sentences. 

{¶27} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. 

{¶28} In Ohio, there is a statutory presumption in favor of concurrent sentences 

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this 

presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C) 

(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This 
Holmes County, Case No. 18CA005 12 

statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st 

Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15. 

R.C. 2929.14(C)(4) provides, 

 If multiple prison terms are imposed on an offender for convictions of 

multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

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, 

and if the court also finds any of the following: 

 (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. 
Holmes County, Case No. 18CA005 13 

{¶29} Thus, in order for a trial court to impose consecutive sentences the court 

must find that consecutive sentences are necessary to protect the public from future crime 

or to punish the offender. The court must also find that consecutive sentences are not 

disproportionate to the offender’s conduct and to the danger the offender poses to the 

public. Finally, the court must make at least one of three additional findings, which include 

that (a) the offender committed one or more of the offenses while awaiting trial or 

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or 

while 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 offenses 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 would adequately reflect the 

seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates 

that consecutive sentences are necessary to protect the public from future crime by the 

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36. 

{¶30} In State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, 

syllabus, the Supreme Court of Ohio stated that: 

 In order to impose consecutive terms of imprisonment, a trial court is 

required to make the findings mandated by R.C. 2929.14(C)(4) at the 

sentencing hearing and incorporate its findings into its sentencing entry, but 

it has no obligation to state reasons to support its findings. 

{¶31} Furthermore, the sentencing court is not required to recite “a word-for-word 

recitation of the language of the statute.” Bonnell, ¶29. “[A]s long as the reviewing court 

can discern that the trial court engaged in the correct analysis and can determine that the 
Holmes County, Case No. 18CA005 14 

record contains evidence to support the findings, consecutive sentences should be 

upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a 

consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C. 

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing 

entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the 

statutory findings in the sentencing entry after properly making those findings at the 

sentencing hearing does not render the sentence contrary to law; rather, such a clerical 

mistake may be corrected by the court through a nunc pro tunc entry to reflect what 

actually occurred in open court. Bonnell, ¶30. 

{¶32} In this case, the record does support a conclusion that the trial court made 

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive 

sentences. 

R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 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. 

{¶33} The trial court considered this factor. Sent. T. at 18. 

R.C. 2929.14(C)(4)(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. 

{¶34} This provision does apply to Rose’s case. Sent. T. at 16; 18. 
Holmes County, Case No. 18CA005 15 

R.C. 2929.14(C)(4)(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. 

{¶35} The trial court considered this factor. Sent. T. at 18. 

R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct 

demonstrates that consecutive sentences are necessary to protect the public from 

future crime by the offender. 

{¶36} The trial court made a specific finding concerning this factor. 

R.C. 2929.20. 

{¶37} R.C. 2929.20 (I) is inapplicable, as Rose’s was not applying to the court for 

judicial release. 

{¶38} In the case at bar, the plea was in exchange for the state dismissing or 

reducing several felony charges. 

{¶39} Given that the trial court is not obligated to refer to every factor listed in R.C. 

2929.12 as part of its sentencing analysis, “the defendant has the burden to affirmatively 

show that the court did not consider the applicable sentencing criteria or that the sentence 

imposed is ‘strikingly inconsistent’ with the applicable sentencing factors.” State v. Hull, 

11th Dist. Lake No. 2016-L-035, 2017-Ohio- 157, ¶8. Rose has failed in this burden. 

{¶40} Accordingly, the trial court considered the purposes and principles of 

sentencing [R.C. 2929.11] as well as the factors that the court must consider when 

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation 
Holmes County, Case No. 18CA005 16 

to state reasons to support its findings. Nor is it 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 entry. 

{¶41} Upon review, we find that the trial court's sentencing on the charges 

complies with applicable rules and sentencing statutes. The sentence was within the 

statutory sentencing range. We also find that the record in the case at bar supports the 

trial court’s findings under R.C. 2929.14(C)(4). Furthermore, the record reflects that the 

trial court considered the purposes and principles of sentencing and the seriousness and 

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code 

and advised Rose regarding post-release control. While Rose may disagree with the 

weight given to these factors by the trial judge, Rose’s sentence was within the applicable 

statutory range and therefore, we have no basis for concluding that it is contrary to law. 
Holmes County, Case No. 18CA005 17 

{¶42} Rose has failed to clearly and convincingly show that the trial court failed to 

consider the principles of felony sentencing, or that the aggregate sentence is otherwise 

contrary to law. 

{¶43} Roses’ First and Second Assignments of Error are overruled. 

{¶44} The judgment of the Holmes County Court of Common Pleas is affirmed. 

By Gwin, P.J, 

Delaney, J., and 

Wise, Earle, J., concur