[Cite as State v. McAllister, 2020-Ohio-4492.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 2019 CA 00118 

 : 

HAZEL MCALLISTER : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of 

Common Pleas, 18 CR 120 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: September 17, 2020 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

WILLIAM C. HAYES WILLIAM T. CRAMER 

LICKING COUNTY PROSECUTOR 470 Olde Worthington Road, Suite 200 

 Westerville, OH 43082 

PAULA M. SAWYERS 

20 S. 2nd St., 4th Floor 

Newark, OH 43055 
Licking County, Case No. 2019 CA 00118 2 

Delaney, J. 

{¶1} Defendant-Appellant Hazel McAllister appeals the October 31, 2019 

sentencing judgment entry of the Licking County Court of Common Pleas. PlaintiffAppellee is the State of Ohio. 

FACTS AND PROCEDURAL HISTORY 

Underlying Events 

{¶2} On August 17, 2016, troopers with the Ohio State Highway Patrol were 

investigating an automobile accident in Licking County, Ohio. During their investigation, 

they were approached by a person who observed a woman injecting drugs in the restroom 

of a fast food restaurant. The troopers made contact with the woman as she was getting 

into her vehicle. The woman was later identified as Defendant-Appellant Hazel McAllister. 

{¶3} While speaking with McAllister, the troopers confirmed she was the sole 

occupant of the vehicle, she did not have a valid driver’s license, and she was the subject 

of an active felony warrant. 

{¶4} McAllister was taken into custody and the registered owner of the vehicle 

was contacted. The owner advised that McAllister was her cousin and she had loaned 

the vehicle to her that morning. The owner consented to a search of the vehicle. 

{¶5} During the search of the vehicle, law enforcement personnel located 

multiple items: (1) an unsecured and loaded .45 caliber Kimber Warrior handgun on the 

front passenger floorboard; (2) two baggies containing marijuana; (3) a piece of tin foil 

containing heroin; and (3) two vacuum sealed bags containing 883.8 grams of 

methamphetamine. 
Licking County, Case No. 2019 CA 00118 3 

Indictment 

{¶6} On May 25, 2017, in Case No. 2017 CR 00497, the Licking County Grand 

Jury indicted Defendant-Appellant Hazel McAllister for aggravated possession of drugs, 

having a weapon under disability, carrying a concealed weapon, and possession of 

heroin. At that time of the indictment, McAllister was incarcerated in Summit County. Case 

No. 2017 CR 00497 was dismissed without prejudice on December 15, 2017. 

{¶7} On February 21, 2018, the Licking County Grand Jury indicted DefendantAppellant Hazel McAllister on four counts in Case No. 2018 CR 00120: (1) aggravated 

drug possession (methamphetamine) in an amount that equals or exceeds one hundred 

times bulk, a first-degree felony in violation of R.C. 2925.11(A)(C)(1)(e); (2) having 

weapons while under disability, a third-degree felony in violation of R.C. 2923.13(A)(2); 

(3) carrying concealed weapons, a fourth-degree felony in violation of R.C. 2923.12(A)(2); 

and (4) possession of drugs (heroin), a fifth-degree felony in violation of R.C. 

2925.11(A)(C)(6)(a). The indictment also included forfeiture specifications for the firearm 

under R.C. 2941.1417(A) and 2981.02(A)(3). 

Criminal Proceedings 

{¶8} McAllister entered a plea of not guilty to the charges and the matter was 

scheduled for a jury trial. McAllister was placed on Supervised Pre-Trial Release 

Supervision. 

{¶9} After her incarceration in Summit County, Allister was incarcerated in the 

Dayton Correctional Facility and released on January 13, 2019. After her release, she 

was instructed to report to Licking County Adult Court Services. On January 23, 2019, the 
Licking County, Case No. 2019 CA 00118 4 

trial court issued a capias for McAllister’s arrest for her failure to report to ACSD after her 

release from the Dayton Correctional Facility. 

{¶10} The matter was scheduled for jury trial on March 12, 2019. McAllister failed 

to appear. On March 12, 2019, the trial court revoked McAllister’s bond and ordered a 

capias for McAllister’s arrest. McAllister was arrested and appeared in court on March 18, 

2019. The trial court set McAllister’s bond at $50,000 and ordered electronic monitoring. 

The jury trial was rescheduled to April 24, 2019. 

{¶11} McAllister failed to appear for the April 24, 2019 jury trial. The trial court 

revoked McAllister’s bond and issued a capias for her arrest. 

{¶12} McAllister turned herself in and appeared for a bond forfeiture hearing on 

May 8, 2019. The trial court set McAllister’s bond at $150,000. The jury trial was continued 

to June 18, 2019. Upon the State’s motion, the trial was continued to July 24, 2019. 

{¶13} On July 19, 2019, McAllister filed a motion to continue the jury trial and set 

the matter for a change of plea and sentencing hearing. The change of plea and 

sentencing hearing was scheduled for September 9, 2019. 

{¶14} On August 20, 2019, McAllister’s probation officer filed an application for an 

order for a capias for her arrest. He stated she could not be located and she had failed to 

report to ACSD since July 29, 2019. The trial court ordered a capias issued for her arrest. 

{¶15} On September 9, 2019, the matter came on for a change of plea and 

sentencing hearing. McAllister failed to appear. The trial court revoked McAllister’s bond 

and ordered a capias issued for her arrest. 

{¶16} A bond forfeiture hearing was held on September 19, 2019. McAllister 

appeared at the hearing. The trial court set McAllister’s bond at $1,000,000. 
Licking County, Case No. 2019 CA 00118 5 

{¶17} The change of plea and sentencing hearing was scheduled for October 30, 

2019. At the hearing, counsel for McAllister stated that he met with her at the jail and in 

court before the hearing. He stated he understood that McAllister did not wish to enter 

into a plea agreement with the State or enter pleas of guilty. (October 30, 2019 Hrg., T. 

3). The State responded the plea agreement would drop the major drug offender 

accusation related to the aggravated drug possession charge, which would remove the 

mandatory maximum prison term of eleven years. The first count would remain a firstdegree felony and the State agreed to defer to the trial court for sentencing. (T. 4). The 

State contended the Bill of Particulars and Amended Bill of Particulars contained the 

statutory major drug offender language. (T. 5). McAllister also faced mandatory prison 

time on her other charges. The matter was set for jury trial. (October 30, 2019, Judgment 

Entry). 

{¶18} On October 31, 2019, the State filed a motion to amend the indictment as 

to Count One to indicate that it was a violation of R.C. 2925.11(A)(C)(1)(d), a felony of 

the first-degree and the language of the statute to indicate that “the amount of the drugs 

equals or exceeds fifty times bulk but is less than one hundred times bulk.” The parties 

came to the trial court on October 31, 2019 for a change of plea and sentencing hearing. 

McAllister stated at the hearing it was her intention to withdraw her not guilty pleas. The 

trial court conducted the plea colloquy. McAllister pleaded guilty to an amended Count 

One, aggravated possession of drugs, a first-degree felony in violation of R.C. 

2925.11(A)(C)(1)(d), which carried a maximum prison term of three to eleven years; 

Count Two, having weapons under disability, a third-degree felony in violation of R.C. 

2923.12(A)(1) and (2), with a maximum prison term of 36 months; Count Three, carrying 
Licking County, Case No. 2019 CA 00118 6 

a concealed weapon, a fourth-degree felony in violation of R.C. 2923.12(A)(2)(f)(1), with 

a maximum prison term of 18 months; and Count Four, possession of heroin, a fifthdegree felony in violation of R.C. 2925.11(A)(C)(6)(a), with a maximum prison term of one 

year. (T. 10). 

{¶19} The trial court accepted McAllister’s guilty pleas to the four charges. The 

trial court noted that a presentence investigation report had been prepared and it had 

reviewed the report. (T. 17). In regards to sentencing, counsel for McAllister stated that 

she had provided information to local law enforcement regarding drug activity in Franklin 

County that had been passed on to the DEA. (T. 18). Counsel also argued the incident 

occurred in 2016. Based on her arrest in 2016, her probation in Summit County was 

revoked and she served prison time. After she was released from prison, McAllister was 

involved in a car accident that caused her serious injury and fatal injuries to her relative. 

(T. 19). McAllister stated she failed to appear in court after the $150,000 bond was 

imposed because of the car accident. (T. 24). 

{¶20} McAllister informed the trial court she had two young children. (T. 21). While 

she was on pretrial bond, she maintained employment and gave clean drug screens. 

When she violated bond, she turned herself in to the bondsman. (T. 21). 

{¶21} The trial court noted that McAllister had been granted judicial release twice 

and it had been revoked both times. (T. 22). She applied for judicial release a third time 

and it was denied. (T. 22). Before imposing sentence, the trial court stated: 

THE COURT: Okay. Ms. McAllister, this is two pounds of 

Methamphetamine. 

DEFENDANT: I know. 
Licking County, Case No. 2019 CA 00118 7 

THE COURT: I’ll never see another seizure that large, never seen one come 

close to that, 883 grams. I forget what it takes to be mandatory prison, but 

it’s like 15 or something like that. And it was in 2016. But you were on parole 

at the time it looks like or on judicial release, something, on supervision at 

least, and since you got out of prison and posted your bond here, you’ve 

just – you’ve been a bondsmen’s nightmare. In any event – 

DEFENDANT: I turned myself in with my bondsman. 

THE COURT: Which time? 

DEFENDANT: On the 18th, August 18th. 

THE COURT: Okay. Well, that’s after their second or third warrant was 

issued for your arrest. What was the bond posted then when you showed 

up again? 

DEFENDANT: Fifty thousand, but I was released from prison. 

THE COURT: Is it a million now? Is that what your bond is? 

DEFENDANT: Yes. 

THE COURT: Okay. Since you failed to appear after the $150,000 bond. 

DEFENDANT: Yes, sir. That was the time of the accident. 

(T. 23-24) 

{¶22} The trial court then sentenced McAllister: 

THE COURT: Okay. Well, Ms. McAllister, on that basis here today, I’ll 

impose a term of * * * five years in the state penitentiary on Count No. 1. I’ll 

impose a term of three years in the state penitentiary on Count No. 2, 

weapons under disability. I’ll impose a term of one year in the state 
Licking County, Case No. 2019 CA 00118 8 

penitentiary on the carrying concealed weapons charge, and one year on 

the Heroin possession charge. I’ll order they run consecutively with each 

other for a 10-year prison term. 

* * * 

THE COURT: I find that consecutive sentences are necessary to protect 

the public, punish the Defendant, not disproportionate to the crime she’s 

committed, and necessitated by her criminal history * * * and that this 

offense occurred while she was on supervision. 

(T. 24, 26-27). 

{¶23} On October 31, 2019, the trial court filed its judgment entry sentencing 

McAllister to an aggregate prison term of ten years. In the sentencing entry, the trial court 

sentenced McAllister to consecutive prison terms: 

The Court has decided that the offender shall serve the prison terms 

consecutively, pursuant to R.C. 2929.14(C)(4), because the Court finds 

that the consecutive sentences are 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 the Court also finds the 

following: The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under s 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. The offender’s 
Licking County, Case No. 2019 CA 00118 9 

history of criminal conduct demonstrates that consecutive sentences are 

necessary to protect the public from future crime by the offender. 

{¶24} It is from this judgment entry that McAllister now appeals. 

ASSIGNMENT OF ERROR 

{¶25} McAllister raises one Assignment of Error: 

{¶26} “THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE 

SENTENCES WITHOUT MAKING THE REQUISITE STATUTORY FINDINGS AND IN 

CONTRAVENTION OF THE CLEAR AND CONVINCING EVIDENCE THAT 

APPELLANT WAS NOT SO DANGEROUS AS TO REQUIRE CONSECUTIVE 

SENTENCES.” 

ANALYSIS 

{¶27} McAllister argues in her sole Assignment of Error that the trial court erred 

when it imposed consecutive sentences because it failed to make the requisite findings 

under R.C. 2929.14(C)(4) and the record did not support consecutive sentences. We 

disagree. 

{¶28} McAllister was convicted and sentenced to five years in prison for 

aggravated possession of drugs, a first-degree felony; three years in prison for having 

weapons under disability, a third-degree felony; one year in prison for carrying concealed 

weapons, a fourth-degree felony; and one year in prison for possession of drugs, a fifthdegree felony. The trial court ordered the prison terms were to run consecutively for an 

aggregate term of ten years. 
Licking County, Case No. 2019 CA 00118 10 

{¶29} We review sentencing under R.C. 2953.08(G)(2). “[A]ppellate courts must 

adhere to the plain language of R.C. 2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 

516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 7. An appellate court may only modify or vacate 

a sentence if it finds by clear and convincing evidence that the record does not support 

the sentencing court's decision. Id. at ¶ 23. Clear and convincing evidence is that “ ‘which 

will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought 

to be established.’ ” State v. Silknitter, 3rd Dist. Union No. 14-16-07, 2017-Ohio-327, ¶ 7, 

citing Marcum, supra. Clear and convincing evidence is that measure or degree of proof 

which is more than a mere “preponderance of the evidence,” but does not require the 

certainty of “beyond a reasonable doubt.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 

118 (1954), paragraph three of the syllabus. 

{¶30} 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. R.C. 2929.14(C)(4) 

concerns the imposition of consecutive sentences and 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: 
Licking County, Case No. 2019 CA 00118 11 

(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. 

{¶31} “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.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 

2014-Ohio-3177, syllabus. 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 

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. 
Licking County, Case No. 2019 CA 00118 12 

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

entry. Id. at the syllabus. 

{¶32} The relationship between the clear and convincing standard and the R.C. 

2929.14(C)(4) findings was explained in State v. Venes, 8th Dist. No. 98682, 2013-Ohio1891, ¶ 19-22: 

 If the court has properly made the required findings in order to impose 

consecutive sentences, we must affirm those sentences unless we “clearly 

and convincingly” find “[t]hat the record does not support the court's 

findings[.]” 

 It is important to understand that the “clear and convincing” standard 

applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 

2953.08(G)(2) makes it clear that “[t]he appellate court's standard for review 

is not whether the sentencing court abused its discretion.” As a practical 

consideration, this means that appellate courts are prohibited from 

substituting their judgment for that of the trial judge. It is also important to 

understand that the clear and convincing standard used by R.C. 

2953.08(G)(2) is written in the negative. It does not say that the trial judge 

must have clear and convincing evidence to support its findings. Instead, it 

is the court of appeals that must clearly and convincingly find that the record 

does not support the court's findings. In other words, the restriction is on the 

appellate court, not the trial judge. This is an extremely deferential standard 

of review. 
Licking County, Case No. 2019 CA 00118 13 

 In reaching this conclusion, we note that the term “record” as used in 

R.C. 2953.08(G)(2) is very broad. It encompasses all of the proceedings 

before the court, not just the sentencing. And while the court has the 

obligation to make separate and distinct findings under R.C. 2929.14(C)(4) 

before imposing sentence, support for those findings may appear anywhere 

in the “record” and not just at the time the court imposes consecutive 

sentences. 

State v. Payton, 5th Dist. Muskingum No. CT2017-0095, 2018-Ohio-3864, 2018 WL 

4600875, ¶ 22. 

{¶33} McAllister acknowledges the trial court made the proper R.C. 2929.14(C)(4) 

findings in the October 31, 2019 sentencing entry. She argues the trial court did not make 

the proper findings during the sentencing hearing. At the sentencing hearing, the trial 

court stated consecutive sentences were necessary “to protect the public, punish the 

Defendant, not disproportionate to the crime she’s committed, and necessitated by her 

criminal history * * * and that this offense occurred while she was on supervision.” (T. 26-

27). McAllister notes the trial court indicated that consecutive sentences were 

proportionate to the seriousness of her conduct but did not mention whether consecutive 

sentences were proportionate to the danger she posed to the public. She argues the trial 

court made an incomplete finding as to proportionality, the third required finding to impose 

consecutive sentences. She does not argue 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). 
Licking County, Case No. 2019 CA 00118 14 

{¶34} As stated above, the trial court is not required to recite a word-for-word 

recitation of the language of the statute. ““[A]s 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.” 

Bonnell, 2014-Ohio-3177, ¶ 29. 

{¶35} During its sentencing of McAllister, the trial court addressed the seriousness 

of McAllister’s conduct. The amount of methamphetamine in McAllister’s possession, 833 

grams or almost two pounds, appeared to shock the trial court. It stated it had never seen, 

and probably never will see again, a seizure of methamphetamine that large. It believed 

that a much lesser amount of methamphetamine required a mandatory prison term. 

During her arrest, a loaded weapon was also found in her possession. 

{¶36} The trial court noted McAllister’s habit of ignoring court orders. At the time 

of her arrest for possession of 883 grams of methamphetamine, heroin, and a loaded 

firearm, she was on either felony probation or parole. She was also the subject of an 

active felony warrant. She had been previously granted judicial release two times and 

had it revoked both times. When she applied for judicial release a third time, it was denied. 

During the pendency of this case, McAllister failed to appear in court at least three times 

for which she was arrested. She also failed to appear for pre-trial supervision, also 

requiring the issuance of a capias. She did not contact her attorneys or the trial court to 

excuse her absences. Her original bond was set at $50,000. At the time of sentencing, 

McAllister’s bond was set at $1,000,000. 

{¶37} We find the trial court made the proportionality finding as required by R.C. 

2929.14(C)(4). While the trial court did not use the words “consecutive sentences are not 
Licking County, Case No. 2019 CA 00118 15 

disproportionate to the seriousness of the offender's conduct and to the danger the 

offender poses to the public” before imposing consecutive sentences, it did state at the 

sentencing hearing that consecutive sentences were “not disproportionate to the crime 

she’s committed.” (T. 26-27). The trial court addressed the seriousness of McAllister’s 

conduct when it noted the large amount of methamphetamine found in her possession. It 

considered the danger she posed to the public in her continued failure to abide by court 

orders ranging from appearing in court to refraining from engaging in criminal activity 

while on parole or probation. Based on the seriousness of her conduct and the danger of 

her continued failure to abide by the law, the trial court found a single sentence 

inadequate. Further, the trial court stated in the sentencing entry that “consecutive 

sentences are not disproportionate to the seriousness of the offender’s conduct and to 

the danger the offender poses to the public.” 

{¶38} 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. The trial court’s deviation from the statutory 

language was not so egregious so as to render the sentence clearly and convincingly 

contrary to law. 

{¶39} We overrule McAllister’s sole Assignment of Error. 

 
Licking County, Case No. 2019 CA 00118 16 

CONCLUSION 

{¶40} The judgment of the Licking County Court of Common Pleas is affirmed. 

By: Delaney, J., 

Hoffman, P.J., and 

Baldwin, J., concur.