[Cite as State v. Pawlak, 2016-Ohio-5926.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103444

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

BRANDON PAWLAK

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-591408-A 

BEFORE: Celebrezze, J., Keough, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: September 22, 2016 
ATTORNEY FOR APPELLANT

Marcus S. Sidoti 

Jordan & Sidoti, L.L.P. 

50 Public Square 

Suite 1900 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Gregory Paul 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., J.: 

{¶1} Defendant-appellant, Brandon Pawlak (“appellant”), brings this appeal 

challenging his convictions and the trial court’s sentence for aggravated robbery, 

aggravated vehicular assault, failure to comply with an order or signal of a police officer, 

breaking and entering, and grand theft. Specifically, appellant argues that his 

convictions are not supported by sufficient evidence and are against the manifest weight 

of the evidence, and his trial counsel provided ineffective assistance. Furthermore, 

appellant argues that the trial court erred by imposing consecutive sentences, or, in the 

alternative, that the trial court’s sentence is contrary to law. After a thorough review of 

the record and law, this court affirms. 

I. Factual and Procedural History 

{¶2} The instant matter arose from an incident on October 23, 2014, that began at 

Sweetbriar Golf Club (“Sweetbriar”) in Avon Lake, Ohio and, after a high-speed chase, 

ended at Dover Gardens Tavern in Westlake, Ohio. Around 8:30 p.m., two employees, 

superintendent Daniel Hershey (“Hershey”), and his assistant John Sterna (“Sterna”), 

observed suspicious activity on the Sweetbriar grounds. Hershey observed two vehicles, 

a white van and a “dark-colored” pickup truck, behind the maintenance area. Hershey 

noticed an individual trying to gain entry into a dump truck in the maintenance area. 

Hershey alerted Sterna, who had a better vantage point, and asked him to look into the 

situation. Furthermore, Hershey contacted the Avon Lake Police Department to report 
the suspicious activity. 

{¶3} Sterna walked into his backyard to get a better view and observed two 

individuals in the maintenance area. One of the individuals was wearing a light gray 

hooded sweatshirt. Sterna approached the individuals and confronted a man, later 

identified as appellant, wearing a dark hooded sweatshirt. After Sterna confronted 

appellant, appellant jumped into Sweetbriar’s white pickup truck and the truck sped away, 

nearly running over Sterna. Appellant’s codefendant, Matthew Sowden (“Sowden”), 

fled the area in a white van. Appellant and Sowden left behind a blue pickup truck that 

had been stolen from Community Assessment and Treatment Services, Inc. (“CATS”) in 

Cleveland, Ohio. 

{¶4} The responding officers located the white van and Sweetbriar’s white pickup 

truck, and attempted to initiate a traffic stop. Sowden, who was driving the van, 

complied with the officers and was taken into custody. Appellant, who was driving the 

pickup truck, attempted to evade the officers. 

{¶5} Officers began pursuing appellant in Avon, Ohio, and continued their pursuit 

as appellant fled eastbound on Detroit Avenue. As appellant approached the intersection 

of Detroit Road and Dover Center Road in Westlake, Ohio, he lost control of the vehicle 

and crashed into Dover Gardens Tavern. Thirteen bar patrons were hospitalized as a 

result of the crash. Appellant attempted to climb out of the truck’s rear window, but 

officers immediately took him into custody. 

{¶6} The Cuyahoga County Grand Jury returned a 32-count indictment charging 
appellant with (1)-(13) aggravated robbery, in violation of R.C. 2911.01(A)(3); (14)-(26) 

aggravated vehicular assault, in violation of R.C. 2903.08(A)(2)(b), with furthermore 

clauses alleging that appellant was driving under suspension; (27) failure to comply with 

an order or signal of a police officer, in violation of R.C. 2921.331(B); (28) felonious 

assault, in violation of R.C. 2903.11(A)(2); (29) and (31) breaking and entering, in 

violation of R.C. 2911.13(B); and (30) and (32) grand theft, in violation of R.C. 

2913.02(A)(1). Appellant pled not guilty to the indictment. 

{¶7} The trial court referred appellant to the court psychiatric clinic for a 

competency evaluation. Dr. Amy Ginsberg evaluated appellant and concluded that he 

was able to understand the nature of the proceedings and capable of assisting in his 

defense. A jury trial commenced on July 20, 2015. Defense counsel moved for a 

Crim.R. 29 judgment of acquittal at the close of the state’s case and at the close of all the 

evidence. The trial court denied both motions. 

{¶8} At the close of trial, the jury found appellant not guilty of felonious assault as 

charged in Count 28 and breaking and entering as charged in Count 29. The jury found 

appellant guilty of the remaining 30 counts. The trial court remanded appellant and set 

the matter for sentencing. 

{¶9} At the sentencing hearing, the court heard testimony from several victims 

who were injured at Dover Gardens Tavern, victims’ family members, the prosecutor, 

defense counsel, appellant’s mother, and appellant. The trial court sentenced appellant to 

a prison term of 35 years and 6 months: ten years on Counts 1-13, to be served 
concurrently to one another; 30 months on Counts 14-26, to be served consecutively to 

one another and concurrently to Counts 1-13; three years on Count 27, to be served prior 

and consecutively to Counts 1-26 and 30-32; and 12 months on Counts 30, 31, and 32, to 

be served concurrently with Counts 1-26, and consecutively to Count 27. 

{¶10} Appellant filed the instant appeal assigning three errors for review: 

I. The guilty verdict cannot be upheld because the conflicting evidenc[e] 

and testimony presented at trial did not establish the appellant’s guilt 

beyond a reasonable doubt. 

II. The guilty verdict cannot be upheld because trial counsel provided 

ineffective assistance of counsel thereby violating appellant’s right to 

counsel. 

III. The sentence of the appellant was in error. 

II. Law and Analysis 

{¶11} Appellant’s first assignment of error challenging his convictions 

encompasses both sufficiency and manifest weight issues. Thus, we will apply both 

standards. 

A. Sufficiency 

{¶12} First, appellant argues that the evidence at trial did not establish his guilt 

beyond a reasonable doubt. Specifically, appellant contends that the state failed to prove, 

beyond a reasonable doubt, that he drove the truck that crashed into Dover Gardens 

Tavern. 

{¶13} The test for sufficiency requires a determination of whether the prosecution 

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 
2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a 

light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins, 

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). 

{¶14} In the instant matter, appellant does not allege that he was not in the truck 

that crashed into Dover Gardens Tavern. Rather, appellant suggests that he was a 

passenger and that another man was driving the truck. Appellant contends that none of 

the state’s witnesses “affirmatively state[d] that they saw [him] driving the [truck].” We 

disagree. 

{¶15} The state presented the testimony of the following eyewitnesses: (1) Sterna, 

(2) Officer Andrew Kehl, (3) Officer Nathan Fox, (4) Devin McElhannon, and (5) Katie 

Murphy. 

{¶16} First, Sterna testified that he confronted appellant in Sweetbriar’s 

maintenance area and that appellant ran behind Sweetbriar’s truck. Sterna observed 

appellant get into the truck’s driver’s seat. Sterna testified that “[n]o more than 15 

seconds” after appellant got into the driver’s seat, the truck “pull[ed] a 180” and began to 

follow the van. Sterna acknowledged that he could not determine who was driving the 

truck because the truck was bearing down on him and the lights were shining in his eyes. 

However, Sterna clarified that moments before the truck drove off, he saw appellant in 

the driver’s seat. 

{¶17} Second, Avon Lake Police Officer Andrew Kehl testified that he first 
encountered the stolen truck on Jaycox Road, a driving distance of approximately 30 

seconds from Sweetbriar. He testified that he observed one occupant in the truck’s 

driver’s seat, and did not see a second occupant in the truck at any time. Officer Kehl 

explained that he never lost visual contact with the truck, either during the chase or when 

the truck crashed into Dover Gardens Tavern. Officer Kehl testified that after the truck 

crashed into the bar, he exited his cruiser and observed “[a] subject coming out of the 

back window of the truck.” Officer Kehl explained that the individual attempted to 

climb through the back window on the driver’s side. “Less than ten seconds” thereafter, 

Officer Kehl apprehended the individual. Officer Kehl identified appellant as the 

individual who climbed out of the truck. Officer Kehl testified that neither the 

passenger’s door nor the driver’s door opened after the vehicle crashed into the bar. 

Based on his observations, Officer Kehl did not believe a second individual was in the 

truck with appellant. 

{¶18} Third, Westlake police officer Nathan Fox testified that he witnessed the 

truck crash into Dover Gardens Tavern after driving over “stop sticks.” Officer Fox 

testified that he never lost visual contact with the truck as it crashed into the bar. Officer 

Fox testified that he observed the suspect crawl through a window into the bed of the 

truck. Officer Fox explained that he and Officer Kehl pulled the suspect from the bed of 

the truck to the ground and handcuffed him. Officer Fox identified appellant as the 

suspect who he apprehended. Officer Fox testified that he was “certain” that there was 

only one occupant inside the truck when it crashed into the bar. 
{¶19} Fourth, Devin McElhannon (“McElhannon”), testified that he was inside 

Dover Gardens Tavern when the truck crashed into the bar. McElhannon testified that 

he “saw the person that was driving the truck trying to get out of the vehicle” and that he 

“went after [the person].” McElhannon explained that the person was trying to get out of 

the “driver’s portion” of the truck. McElhannon identified appellant as the person who 

was trying to get out of the vehicle that had crashed into the bar. By the time 

McElhannon got to appellant, he was on the ground and officers were handcuffing him. 

McElhannon testified that he did not see anybody jump out of the truck and run away. 

{¶20} Fifth, Katie Murphy (“Murphy”) testified that she was outside of Dover 

Gardens Tavern when the truck crashed into the bar. Murphy explained that she 

maintained a constant view of the truck as it traveled eastbound on Detroit Road and 

crashed into the bar. Murphy testified that “less than a minute [later],” she saw a man 

crawl out of the cab of the truck and into the bed. Murphy testified that officers 

immediately took this man into custody. Murphy explained that she only saw one person 

exit the truck after it crashed into the bar. 

{¶21} In addition to the testimony of the eyewitnesses, the state presented the 

testimony of Reed Reikowski, a detective with the Avon Lake Police Department. 

Detective Reikowski testified about a jail phone call that appellant placed to codefendant 

Sowden three days after the incident. The phone call was played in its entirety to the 

jury. Detective Reikowski testified that during the phone call, Sowden said to appellant, 

“‘[i]t’s funny you were able to drive through Avon Lake and Avon without a ding or a 
dent then you hit Westlake,’ and I think he said, ‘[b]oom.”’ (Tr. 808.) Detective 

Reikowski clarified that Sowden said to appellant, “you were able to drive,” rather than 

“they” or “we.” 

{¶22} After reviewing the record, we find that the state presented sufficient 

evidence, if believed, to demonstrate that appellant drove away from Sweetbriar in the 

stolen truck, evaded the police officers that were pursuing him, and crashed the truck into 

the Dover Gardens Tavern. 

B. Manifest Weight 

{¶23} Second, appellant argues that his convictions are against the manifest weight 

of the evidence. Specifically, appellant contends that the state presented “conflicting 

evidence and testimony” at trial regarding the identity of the individual who drove the 

stolen truck from Sweetbriar and crashed the truck into the Dover Gardens Tavern. 

{¶24} In contrast to a sufficiency argument, a manifest weight challenge questions 

whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266, 

2009-Ohio-3598, at ¶ 12. A reviewing court “weighs the evidence and all reasonable 

inferences, considers the credibility of witnesses and determines whether in resolving 

conflicts in the evidence, the jury clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed and a new trial ordered.” 

Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d 541. A conviction should be reversed as 

against the manifest weight of the evidence only in the most “exceptional case in which 

the evidence weighs heavily against the conviction.” Id. 
{¶25} Although we review credibility when considering the manifest weight of the 

evidence, we are cognizant that determinations regarding the credibility of witnesses and 

the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. 

Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 

227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe 

their demeanor, gestures, and voice inflections, and use these observations in weighing 

the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies 

and resolve them accordingly, “believ[ing] all, part, or none of a witness’s testimony.” 

State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. 

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). 

{¶26} In the instant matter, the defense’s theory at trial was that three individuals 

were present at Sweetbriar: (1) a man in a light gray hoodie, (2) a man in a dark hoodie, 

and (3) the driver of the van who was wearing an orange hoodie. (Tr. 1797-1799.) 

However, on appeal, appellant contends that the trial testimony demonstrated that a third 

individual was present at Sweetbriar and that this individual was the driver of the truck, 

and thus, responsible for crashing the truck into Dover Gardens Tavern: “Sterna’s 

testimony established that while the crime was originating, at the Sweetbriar Golf Club, 

there were three (3) men, one (1) man in a light gray sweatshirt, one (1) man in a dark 
gray sweatshirt, and the operator of the white truck who [Sterna] had never seen.” 

Appellant’s brief at 13. 

{¶27} Sterna explained that his backyard connects to Sweetbriar. Sterna stated 

that after receiving a phone call from Hershey regarding suspicious activity at Sweetbriar, 

he walked into his backyard to get a better view of the maintenance area. Sterna testified 

that he noticed two individuals near the fuel tanks in the maintenance area. Sterna 

opined that the individuals were roughly 50 to 60 yards away from his backyard. Sterna 

explained that one of the individuals was wearing a light gray hooded sweatshirt, and that 

the sweatshirt’s hood was up. Sterna testified that after observing the individual in the 

light gray hoodie from his backyard, he did not see this individual again. 

{¶28} Sterna explained that he put on some clothes and approached the area where 

he observed the two individuals. As he approached the area on foot, Sterna encountered 

a second individual wearing a dark hoodie from a distance of approximately 15 feet. The 

individual wearing the dark hoodie, later identified as appellant, did not have his hood up, 

and Sterna was able to see his face. Sterna explained that after he confronted appellant, 

appellant ran and jumped into Sweetbriar’s white pickup truck, which was already 

running. 

{¶29} Sterna testified that the white van sped off and the white pickup truck 

followed the van. He testified that he did not see the individual driving the van because 

he was focusing on the van’s license plate. Sterna testified that he did not see the 

individual driving the pickup truck because it was bearing down on him at a high rate of 
speed and the truck’s lights were shining in his eyes. 

{¶30} After viewing dash-cam footage, Sterna acknowledged that the individual 

who was driving the van, later identified as codefendant Sowden, was wearing an orange 

sweatshirt. Sterna explained that he did not see either of the individuals at Sweetbriar 

wearing orange clothing. On cross-examination, Sterna testified that the color of 

Sowden’s hoodie was “very indistinct.” Sterna further explained that he could not 

determine that Sowden’s hoodie was orange from the dash-cam footage. 

{¶31} Appellant’s manifest weight challenge is premised on the theory that a third 

individual, who Sterna never observed, was sitting in the white pickup truck and sped off 

in the truck after appellant jumped inside. On the other hand, the state’s theory was that 

codefendant Sowden drove away from Sweetbriar in the van and appellant drove away in 

the truck. As outlined above, the eyewitnesses at Dover Gardens Tavern only saw 

appellant climbing out of the truck after it crashed into the bar. None of the witnesses 

testified that a second individual emerged from the truck following the crash. When 

there are two versions of events, neither of which is unbelievable, it is not our province to 

choose which one should be believed. State v. Gore, 131 Ohio App.3d 197, 201, 722 

N.E.2d 125 (7th Dist.1999). Rather, we defer to the factfinder who was best able to 

weigh the evidence and judge the credibility of witnesses by viewing the demeanor, voice 

inflections, and gestures of the witnesses testifying. Seasons Coal Co. v. Cleveland, 10 

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1994); DeHass, 10 Ohio St.2d at 231, 227 N.E.2d 
212. Accordingly, appellant’s convictions are not against the manifest weight of the 

evidence simply because the jury rejected the defense’s version of the events. 

{¶32} Furthermore, appellant argues that the trial testimony “was consistently 

riddled with allegations that a man in a red shirt had been driving the [truck].” Appellant 

suggests that Thomas Sutton (“Sutton”), who was inside the bar after the crash and was 

wearing a red hoodie, drove the vehicle that crashed into the bar. We disagree. 

{¶33} Officer Kehl testified that when he arrested appellant, appellant informed 

him that someone else was driving the truck. Officer Kehl explained that appellant did 

not identify the person he claimed had been driving the truck, but said he was wearing a 

red sweatshirt. Officer Kehl testified that he found no merit to appellant’s allegation and 

that he did not find an individual wearing a red sweatshirt. 

{¶34} McElhannon testified that when the officers were handcuffing appellant, 

appellant was “yelling that it wasn’t him. It was the guy in the red hoodie.” 

{¶35} Sutton testified that he was at Dover Gardens Tavern on the night of the 

incident and that he was wearing a red hoodie. Sutton explained that at some point in 

time, he took off the red hoodie and placed it on a chair at his table. Sutton testified that 

when the truck crashed into the bar, “I [ran] as far as I could to avoid anything.” Sutton 

explained that he ran towards the bathrooms in the back of the bar to get out of the way of 

the commotion and the debris. Sutton testified that he had been at Dover Gardens 

Tavern for “an hour or so” before the truck crashed into the bar. Sutton stated that he 

remained inside the bar for approximately 20 minutes after the accident, and that he 
remained on the premises outside of the bar for another hour or two. Sutton testified that 

he picked up his red hoodie before exiting the bar. Sutton explained that he told officers 

that he was not the driver of the truck and that he had been sitting at the bar drinking 

when the crash occurred. 

{¶36} Marietta Bernarding (“Bernarding”), testified that she arrived at Dover 

Gardens Tavern on the night of the incident between 8:00 and 8:30 p.m. Bernarding 

testified that before the truck crashed into the bar, she saw a customer wearing a red 

hoodie. She explained that she made a statement to police officers on the night of the 

incident. In her statement, Bernarding asserted that she did not see an individual wearing 

a red hoodie exit the truck after it crashed into the bar. 

{¶37} After reviewing the record, we cannot say that appellant’s convictions are 

against the manifest weight of the evidence. Appellant’s self-serving statement to 

Officer Kehl alleging that a man wearing a red shirt crashed the truck into Dover Gardens 

Tavern is entirely unsupported by the testimony adduced at trial. Appellant was the only 

individual that the witnesses observed exiting the truck after the crash. The trier of fact 

heard the evidence presented and was able to take into account inconsistencies in the 

testimony and to assess the credibility of the witnesses. We cannot say that this is the 

exceptional case where the evidence weighs heavily against the convictions nor that the 

jury clearly lost its way and created a manifest miscarriage of justice. 
{¶38} Based on the foregoing analysis, we find that appellant’s convictions are 

supported by sufficient evidence and are not against the manifest weight of the evidence. 

Accordingly, appellant’s first assignment of error is overruled. 

C. Ineffective Assistance of Counsel 

{¶39} In his second assignment of error, appellant argues that he was denied 

effective assistance of counsel as guaranteed by the Sixth Amendment of the United 

States Constitution. Specifically, appellant contends that trial counsel’s failure to file a 

motion to suppress evidence obtained during Detective Reikowski’s interview of 

appellant constituted ineffective assistance. 

{¶40} To establish ineffective assistance of counsel, a defendant must demonstrate 

(1) that counsel’s performance fell below an objective standard of reasonable 

representation and (2) that he was prejudiced by that performance. Strickland v. 

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice 

is established when the defendant demonstrates “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. at 694. 

{¶41} The failure to prove either prong of the Strickland two-part test makes it 

unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 

378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court 

need not determine whether counsel’s performance was deficient before examining the 
prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice 

* * * that course should be followed.” Strickland at id. 

{¶42} In the instant matter, we need not address the first Strickland prong because 

appellant cannot show prejudice, or a reasonable probability that but for trial counsel’s 

failure to file a motion to suppress the evidence, the proceeding’s result would have been 

different. 

{¶43} Detective Reikowski testified that he interviewed appellant on the day after 

the incident at Dover Gardens Tavern. Detective Reikowski explained: 

we sat him down, we read him Miranda, and explained very clearly we 

wanted him to read the Miranda, understand it. He pretty quickly decided 

he didn’t want to, but he was trying to pull information from us. So it’s 

pretty common procedure to just kind of let him talk. So he was talking 

about it, and he made reference to the fact he knows he’s the driver and 

there’s nothing he can do to change that. 

And then we jumped into the fictional red shirt, and I told him, “[w]e could 

talk about that, but again I need Miranda to cover myself and you so you 

understand what we’re doing.” (Tr. 773.) 

(Emphasis added.) 

 

{¶44} Appellant contends that his statement to Detective Reikowski “is tantamount 

to a confession” and that because his attorney did not move to suppress his statement, the 

state “was ultimately permitted to use this [statement] as a confession.” Furthermore, 

appellant argues that had the “confession” not been admitted at trial, it is unlikely that he 

would have been convicted. 
{¶45} After reviewing the record, we find that appellant’s ineffective assistance 

claim fails under the second Strickland prong. Detective Reikowski clarified that 

appellant made no admission as to being the driver of the truck that crashed into the bar: 

“[t]he statements when he said, ‘I know I’m the driver,’ were followed up by references 

to the red-shirted guy.” (Tr. 774.) Even if appellant’s trial counsel had moved to 

suppress his statements to Detective Reikowski, the state presented ample evidence that 

appellant drove the truck that crashed into Dover Gardens Tavern. Furthermore, 

appellant’s statement was voluntary and made after he had been Mirandized. 

Accordingly, appellant cannot demonstrate that he was prejudiced by counsel’s alleged 

deficient performance. 

{¶46} Based on the foregoing analysis, appellant’s second assignment of error is 

overruled. 

D. Trial Court’s Sentence 

{¶47} In his third assignment of error, appellant argues that the trial court erred in 

imposing consecutive sentences. Specifically, appellant contends that the court erred in 

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

and are not disproportionate to the offenses. 

{¶48} We review felony sentences under the standard set forth in 

R.C. 2953.08(G)(2). State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 16. R.C. 

2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court may 

overturn the imposition of consecutive sentences where the court “clearly and 
convincingly” finds that (1) “the record does not support the sentencing court’s findings 

under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.” 

{¶49} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, 

the trial court must find that consecutive sentences are (1) necessary to protect the public 

from future crime or to punish the offender, (2) that such sentences would not be 

disproportionate to the seriousness of the conduct and to the danger the offender poses to 

the public, and (3) that one of the following 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 postrelease 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. 

{¶50} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the 

statutory findings at the sentencing hearing, which means that “‘the [trial] court must note 

that it engaged in the analysis’ and that it ‘has considered the statutory criteria and 

specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140 Ohio 

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio 

St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to 

discern that the record contains evidence to support the findings. State v. Davis, 8th Dist. 
Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not, 

however, required to state its reasons to support its findings, nor is it required to give a 

rote recitation of the statutory language, “provided that the necessary findings can be 

found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37. 

{¶51} In the instant matter, the trial court ordered the aggravated vehicular assault 

counts to run consecutively to one another and ordered the failure to comply count to run 

consecutively to all other counts. 

{¶52} Appellant argues that the trial court erred in finding that consecutive 

sentences are required to protect the public from future crime and are not disproportionate 

to the offenses. Appellant suggests that the trial court imposed consecutive sentences 

because he “did not accept full responsibility at the sentencing hearing, and maintained 

his innocence.” Furthermore, although appellant concedes that the trial court made the 

necessary findings to impose consecutive sentences, he contends that the trial court’s 

findings “were nothing more than a mere talismanic incantation, and insufficient under 

Bonnell.” After reviewing the record, we disagree. 

{¶53} In the instant matter, the record reflects that the trial court made the requisite 

R.C. 2929.14(C)(4) findings in support of its imposition of consecutive sentences. In 

making the first finding, the trial court stated that “consecutive service is necessary to 

protect the public from future crime and to punish this defendant.” (Tr. 1997-1998.) 

Furthermore, the trial court stated, “I’m afraid that you will kill people in the future[.]” 

(Tr. 2000.) In making the second finding, the trial court stated that “consecutive 
sentences are not disproportionate for the seriousness of this defendant’s conduct and to 

the danger that you impose to the public.” (Tr. 1998.) In making the third finding under 

R.C. 2929.14(C)(4)(b), the trial court stated that “at least two of the multiple offenses 

were committed in this case as part of one or more courses of conduct and that the harm 

that you caused was so great and so unusual that no single prison term for any of these 

offenses committed as part of any course of conduct would adequately reflect the 

seriousness of this conduct.” (Tr. 1998.) 

{¶54} The trial court emphasized that in 2011, appellant was convicted of failure 

to comply after he “ran a red light, and became involved in an accident after he was 

fleeing from the police.”1

 (Tr. 1982.) The trial court found the 2011 incident to be 

significant because appellant fled from the police in the instant matter “knowing that [he] 

created an accident the last time that [he] fled.” (Tr. 1999.) The trial court stated that 

“[p]olice chases are by far the most dangerous thing that the police officers encounter.” 

(Tr. 1998.) The trial court discussed how appellant’s actions affected the victims: 

you have created and caused havoc in our society. You have hurt these 

people so tremendously that you’ve changed the course of hundreds of 

people’s lives as a result of what you did that day. 

 

* * * 

We are so lucky that a family of five is not dead as a result of what 

happened. Had you entered Dover Center that night, you could have killed 

people. You could have killed any one of these people easily and you 

 1 In Cuyahoga C.P. No. CR-11-547153-A, appellant pled guilty to failure to 

comply with an order or signal of a police officer, in violation of R.C. 2921.331(B), 

and was sentenced to a prison term of two years. 
almost killed four of them as a result of what happened. (Tr. 1999-2000.) 

 

Finally, the trial court noted that appellant did not accept responsibility for his actions and 

continued to maintain that someone else was driving the truck, despite all of the evidence 

to the contrary. 

{¶55} In light of the foregoing analysis, we conclude that the trial court made the 

appropriate consecutive sentence findings and engaged in the analysis required under 

R.C. 2929.14(C)(4). We cannot “clearly and convincingly” find that the record does not 

support the trial court’s findings. Furthermore, the trial court properly incorporated its 

findings into the sentencing journal entry as required. Bonnell, 140 Ohio St.3d 209, 

2014-Ohio-3177, 16 N.E.3d 659, at syllabus. 

{¶56} In the alternative, appellant argues that the trial court’s sentence was 

contrary to law under R.C. 2953.08(A)(1). R.C. 2953.08 provides, in relevant part: 

(A) a defendant who is convicted of * * * a felony may appeal as a matter 

of right the sentence imposed upon the defendant on one of the following 

grounds: 

(1) The sentence consisted of or included the maximum prison term allowed 

for the offense by division (A) of section 2929.14 or section 2929.142 of 

the Revised Code, the maximum prison term was not required for the 

offense pursuant to Chapter 2925. or any other provision of the Revised 

Code, and the court imposed the sentence under one of the following 

circumstances: 

(a) The sentence was imposed for only one offense. 

(b) The sentence was imposed for two or more offenses arising out of a 

single incident, and the court imposed the maximum prison term for the 

offense of the highest degree. 
(Emphasis added.) 

{¶57} Although appellant asserts that the trial court only imposed the maximum 

sentence for the failure to comply count, the record reflects that the trial court also 

imposed the maximum sentence for breaking and entering, a fifth-degree felony, as 

charged in Count 31. Appellant argues that “the [t]rial [c]ourt’s use of non-maximum 

consecutive sentences to fashion a virtual life sentence is tantamount to [R.C. 

2953.08(A)(1)] issues, and is therefore contrary to law[.]” Appellant’s brief at 19. In 

support of his argument, appellant contends that (1) “this was not the most egregious 

form of this crime,” (2) the truck only crashed into Dover Gardens Tavern because the 

police “used the speed sticks in a dangerous fashion,” (3) there was some evidence 

suggesting that he was not the driver of the truck, and (4) he did in fact express remorse 

to the victims. 

{¶58} A sentence is contrary to law if the sentence falls outside the statutory range 

for the particular degree of offense or if the trial court fails to consider the purposes and 

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set 

forth in R.C. 2929.12. State v. Carrington, 8th Dist. Cuyahoga No. 100918, 

2014-Ohio-4575, ¶ 22, citing State v. Hodges, 8th Dist. Cuyahoga No. 99511, 

2013-Ohio-5025, ¶ 7. 

{¶59} This court has held that a trial court “fulfills its duty under the statutes by 

indicating that it has considered the relevant sentencing factors.” State v. Smith, 8th Dist. 

Cuyahoga No. 100206, 2014-Ohio-603, ¶ 14, citing State v. Saunders, 8th Dist. Cuyahoga 
No. 98379, 2013-Ohio-490, ¶ 4. The trial court “need not go through each factor on the 

record — it is sufficient that the court acknowledges that it has complied with its statutory 

duty to consider the factors without further elaboration.” Id., citing State v. Pickens, 8th 

Dist. Cuyahoga No. 89658, 2008-Ohio-1407, ¶ 6. In fact, consideration of the 

appropriate factors set forth in R.C. 2929.11 and 2929.12 can be presumed unless the 

defendant affirmatively shows to the contrary. State v. Jones, 8th Dist. Cuyahoga No. 

99759, 2014-Ohio-29, ¶ 13. 

{¶60} After reviewing the record, we find that the trial court’s sentence is not 

contrary to law. Appellant’s sentences for his felonies of the first, third, fourth, and fifth 

degree were within the statutory ranges under R.C. 2929.14(A). Furthermore, during the 

sentencing hearing, the trial court stated that it “considered all of the required factors 

under 2929.11, 12, and 13[.]” The trial court’s sentencing journal entry provides, in 

relevant part, that “the court considered all required factors of the law. The court finds 

that prison is consistent with the purposes of R.C. 2929.11.” Aside from the trial court’s 

notation in the sentencing entry that it “considered all required factors of law” including, 

specifically, R.C. 2929.11, the record in this case reflects that the trial court did, in fact, 

consider both R.C. 2929.11 and 2929.12 when sentencing appellant. 

{¶61} The trial court reviewed a prior presentence investigation report and 

appellant’s competency report. The trial court heard statements from several victims and 

their family members, the prosecutor, defense counsel, appellant’s mother, and appellant. 

The trial court proceeded to review appellant’s extensive criminal record that began in 
1998. Appellant’s record includes charges of burglary, gross sexual imposition, robbery, 

domestic violence, driving under suspension, fleeing the scene, attempted felonious 

assault, receiving stolen property, assault, resisting arrest, breaking and entering, criminal 

damaging, criminal mischief, attempted theft, failure to comply, possessing criminal 

tools, contributing to the delinquency of a minor, grand theft of a motor vehicle, bringing 

stolen property into another state, and driving with expired and fictitious plates. 

{¶62} The trial court considered the harm that appellant caused to the victims. 

Thirteen Dover Gardens Tavern patrons were hospitalized as a result of appellant’s 

conduct, and 4 of the 13 patrons were life-flighted with critical injuries. The trial court 

considered that appellant did not take responsibility for his actions and, despite all of the 

evidence to the contrary, insisted that he was not the driver of the truck that crashed into 

the bar. 

{¶63} Accordingly, because the felony sentences were within the permissible 

statutory ranges and the trial court considered the required factors of law, appellant’s 

sentence is not contrary to law. 

{¶64} Finally, we note that appellant’s reliance on R.C. 2953.08(A)(1) is 

misplaced. Appellant’s aggravated robbery convictions were the offenses of the highest 

degree, and the trial court did not impose the maximum prison term for these first-degree 

felonies. 

{¶65} Based on the foregoing analysis, we conclude that the trial court did not err 

by imposing consecutive sentences. The trial court made the appropriate consecutive 
sentence findings and engaged in the proper analysis under R.C. 2929.14(C)(4), and we 

cannot “clearly and convincingly” find that the record does not support the trial court’s 

findings. Furthermore, because the trial court sentenced appellant within the permissible 

statutory ranges and considered the required factors of law, appellant’s sentence is not 

contrary to law. 

{¶66} Accordingly, appellant’s third assignment of error is overruled. 

III. Conclusion 

{¶67} After thoroughly reviewing the record, we find that appellant’s convictions 

are supported by sufficient evidence and are not against the manifest weight of the 

evidence. We cannot say that trial counsel’s failure to file a motion to suppress the 

evidence from appellant’s interview with Detective Reikowski constituted ineffective 

assistance. Furthermore, appellant cannot demonstrate a reasonable probability that the 

proceeding’s result would have been different if his trial counsel had moved to suppress 

the evidence. Finally, the trial court did not err by imposing consecutive sentences, and 

appellant’s sentence is not contrary to law. 

{¶68} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 
pleas court to carry this judgment into execution. The defendant’s convictions having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

SEAN C. GALLAGHER, J., CONCUR