[Cite as State v. Beverly, 2015-Ohio-4710.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

ROCKY BEVERLY 

Defendant-Appellant 

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C.A. CASE NO. 2015-CA-8 

T.C. NO. 14CR636 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the __13th _ day of __November__, 2015. 

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RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia 

Street, Suite 449, Springfield, Ohio 45502 

 Attorney for Plaintiff-Appellee 

 

BRYAN K. PENICK, Atty. Reg. No. 0071489, 1900 Kettering Tower, 40 N. Main Street, Dayton, 

Ohio 45423 

 Attorney for Defendant-Appellant 

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FROELICH, P.J. 

{¶ 1} Rocky Beverly pled guilty in the Clark County Court of Common Pleas to 

attempted aggravated robbery, a second-degree felony, and escape, a third-degree felony. His 

sentence included maximum sentences of eight years and three years in prison, respectively, which 

the trial court ordered to be served consecutively. Beverly appeals from his convictions, claiming 
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that the trial court erred in imposing maximum, consecutive sentences. For the following reasons, 

the trial court’s judgment will be affirmed. 

I. Factual and Procedural Background 

{¶ 2} On September 29, 2014, Beverly was indicted on two counts of aggravated robbery 

and one count of escape. According to the bill of particulars, the aggravated robbery counts 

stemmed from two separate incidents in Springfield, Ohio: (1) the robbery of a Speedway on June 

19, 2014, and (2) the robbery of John’s Drive-Thru on July 9, 2014. The escape charge arose out 

of an incident on August 21, 2014, when two detectives from Clark County went to retrieve 

Beverly from the Preble County Jail, where Beverly was being held on a warrant out of Clark 

County. When the detectives escorted Beverly to their vehicle, Beverly “took off running from 

the detectives.” Beverly was apprehended after a foot chase. 

{¶ 3} On January 5, 2015, Beverly pled guilty to an amended charge of attempted 

aggravated robbery (Count I) and to escape (Count III). In exchange for the plea, the State agreed 

to dismiss the second aggravated robbery charge and Clark C.P. No. 2014 CR 499, in which 

Beverly was charged in robbery. The parties also agreed that a presentence investigation would 

be conducted. 

{¶ 4} The trial court sentenced Beverly to maximum sentences of eight years for the 

attempted aggravated robbery and three years for the escape, to be served consecutively, for a total 

of 11 years in prison. In ordering consecutive sentences, the judgment entry stated: 

Upon review of the pre-sentence investigation report, the Court found that 

at the time of the offense the defendant previously had served six (6) prison terms. 

Accordingly, the Court found pursuant to Ohio Revised Code Section 

2929.14(C)(4) that consecutive sentences (1) are necessary to protect the public 
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from future crime and to punish the defendant, (2) are not disproportionate to the 

seriousness of the defendant’s conduct and to the danger the defendant poses to the 

public, and (3) are necessary to protect the public from future crime by the 

defendant given the defendant’s history of criminal conduct. 

The trial court further found that Beverly was on post-release control at the time of the offenses. 

The court terminated Beverly’s post-release control and ordered him to serve in prison the time 

remaining on his post-release control, which was one year, one month, and two days. That time 

was ordered to be served consecutively to his stated prison term for the new offenses. Beverly 

was also required to pay restitution of $165. 

{¶ 5} Beverly appeals from his convictions, claiming that the trial court erred “when it 

sentenced Mr. Beverly to consecutive maximum prison terms.” 

II. Imposition of Consecutive Sentences 

{¶ 6} At the outset, we note that Beverly claims that the trial court erred in imposing 

maximum and consecutive sentences, but Beverly’s arguments do not challenge the individual 

sentences that he received. Rather, his argument is directed only at whether the record supports 

the trial court’s findings in support of consecutive sentences. Accordingly, we will likewise 

confine our discussion to whether consecutive sentences are supported by the record. 

{¶ 7} “[A] trial court may rely on ‘a broad range of information’ at sentencing.” State v. 

Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43, quoting State v. Bowser, 186 Ohio 

App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d Dist.). 

“The evidence the court may consider 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.” (Citation omitted.) Bowser at ¶ 14. “Among other 
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things, a court may consider hearsay evidence, prior arrests, facts supporting a 

charge that resulted in an acquittal, and facts related to a charge that was dismissed 

under a plea agreement.” (Citation omitted.) Bodkins at ¶ 43. A court may also 

consider “allegations of uncharged criminal conduct found in a PSI report[.]” 

(Citation omitted.) Bowser at ¶ 15. Accord State v. Scheer, 158 Ohio App.3d 432, 

2004-Ohio-4792, 816 N.E.2d 602, ¶ 13 (4th Dist.) (finding that “[a] court may 

consider a defendant’s uncharged yet undisputed conduct when determining an 

appropriate sentence”). 

State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 8. 

{¶ 8} After determining the sentence for a particular crime, a sentencing judge has 

discretion to order an offender to serve individual counts of a sentence consecutively. 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 postrelease control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or 
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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. 

{¶ 9} In State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.), we held that we 

would no longer use an abuse of discretion standard in reviewing a felony sentence, but would 

apply the standard of review set forth in R.C. 2953.08(G)(2). 1 “On 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 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 division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’” State v. 

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28. 

{¶ 10} Beverly asserts that the record does not support two of the trial court’s findings in 

support of its imposition of consecutive sentences, namely that consecutive sentences were 

necessary to protect the public and to punish Beverly and that consecutive sentences were not 

disproportionate to the seriousness of Beverly’s conduct and the danger he poses to society. He 

 

1 Since then, several opinions from this court have expressed reservations about whether 

that decision in Rodeffer is correct. See, e.g., State v. Garcia, 2d Dist. Greene No. 2013-

CA-51, 2014-Ohio-1538, ¶ 9, fn.1; State v. Dover, 2d Dist. Clark No. 2013-CA-58, 2014-

Ohio-2303, ¶ 23; State v. Johnson, 2d Dist. Clark No. 2013-CA-85, 2014-Ohio-2308, ¶ 9, 

fn.1; State v. Byrd, 2d Dist. Montgomery No. 25842, 2014-Ohio-2553, ¶ 44; State v. 

Collins, 2d Dist. Montgomery No. 25874, 2014-Ohio-2443, ¶ 21, fn. 1. 
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asserts that the circumstances of the underlying offenses were not egregious and did not warrant 

consecutive sentences; he characterizes his conduct as “non-violent” and “non-threatening.” 

Specifically, he states: 

With respect to the attempted aggravated robbery offense, Mr. Beverly did not 

threaten any victim. He also asserted he had no weapon on his person and at least 

one victim believed that to be true. Moreover, just as in [State v.] Adams, [2d Dist. 

Clark No. 2014-Ohio-13, 2014-Ohio-1160,] Mr. Beverly’s conduct was a symptom 

of his severe drug problem. As to the escape offense, Mr. Beverly was in 

handcuffs being led to the detectives’ vehicle when he ran off around a building. 

He never harmed anyone or threatened harm to anyone. His so-called “escape” 

could even be characterized as comical because he simply ran around the corner of 

a building and stood in an alcove before he was easily and readily apprehended. 

Beverly asserts that the trial court should not have considered the facts of dismissed charges 

and that, apart from Beverly’s criminal history, there was nothing in the record to support 

consecutive sentences. 

{¶ 11} According to the presentence investigation, Beverly was 47 years old when he 

committed the attempted aggravated robbery and the escape, and he has an extensive criminal 

history. Beverly’s juvenile record dates back to August 1979, when he was 12 years old. His 

juvenile record includes adjudications for assault, physical harm, sniffing, theft, truancy, 

complicity to breaking and entering, escape, criminal trespass, and criminal damaging. 

{¶ 12} Beverly also has numerous adult convictions. In April 1985, he was convicted of 

aggravated burglary, for which he was sentenced to 5 to 25 years in prison. In August 1992, he 

was convicted of trafficking in marijuana, for which he received a suspended 18-month prison 
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sentence. In February 1995, he was again convicted of two counts of trafficking in marijuana, 

and he was sentenced to 3 to 10 years in prison. In addition, his probation in the 1992 case was 

revoked, and he served 18 months in prison on that charge. Beverly was convicted of resisting 

arrest in 1998, and in 1999, he was convicted of disorderly conduct and escape; Beverly received 

jail terms for these three offenses. In December 2003, Beverly was convicted of burglary, and he 

was sentenced to one year in prison. The next month, January 2004, he was convicted of theft 

and was sentenced to six months in prison. In March 2005, Beverly was sentenced to eight years 

in prison for another burglary. Beverly was on post-release control for the last burglary (Clark 

C.P. No. 2005 CR 263) when the instant offenses occurred. 

{¶ 13} Beverly reported that he has had chemical substance problems since he was 17 

years old due to his use of alcohol, crack cocaine, and heroin. He reported that he has never 

received substance abuse treatment. Beverly was homeless when the instant offenses occurred, 

and he has no source of income. 

{¶ 14} Although Beverly characterizes the instant offenses as “non-violent” and “nonthreatening,” the record reflects that Beverly committed the attempted aggravated robbery of the 

Speedway by keeping his right hand in his jacket pocket as if he had a weapon while demanding 

money from the cashier. (See Plea Hearing, p.4; Bill of Particulars.) Beverly denied having a 

weapon, but he pled guilty to attempting to commit aggravated robbery, a violent felony. The 

cashier stated in a victim impact statement that this was the fourth time she had been robbed and 

that the incident scared her at the time; she felt that Beverly should receive “a long sentence in the 

pen.” With respect to the escape charge, the presentence investigation report indicates that this is 

Beverly’s third escape charge; he had a prior escape adjudication as a juvenile and an adult escape 

conviction in 1999. In this case, Beverly was handcuffed and about to be placed in the Clark 
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County detectives’ vehicle when he broke from their custody and ran. 

{¶ 15} In short, Beverly has committed numerous prior offenses, including multiple 

felonies which resulted in six prior prison terms; an additional aggravated robbery charge and a 

robbery charge in Case No. 2014 CR 499 were dismissed as part of the plea. Beverly committed 

the Speedway offense and attempted to escape police custody while on post-release control. The 

record supports the trial court’s conclusions that consecutive sentences were necessary to protect 

the public from future offenses by Beverly and to punish Beverly for the attempted aggravated 

robbery and the escape. Moreover, although no one was injured as a result of the attempted 

aggravated robbery and the escape, the record supports the conclusion that consecutive sentences 

were not disproportionate to the seriousness of his conduct or to the danger he poses to the public. 

{¶ 16} The assignment of error is overruled. 

III. Conclusion 

{¶ 17} The trial court’s judgment will be affirmed. 

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FAIN, J. and HALL, J., concur. 

Copies mailed to: 

Ryan A. Saunders 

Bryan K. Penick 

Hon. Douglas M. Rastatter