[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. Delane y , J. : Hon. Crai g R. Baldwin, J. -vs- : : Case No. 2019 CA 00118 : HAZEL MCALLISTER : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Court o f 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 Worthin g ton Road, Suite 200 Westerville, OH 43082 PAULA M. SAWYERS 20 S. 2nd St., 4th Floo r Newark, OH 43055Licking County, Case No. 2019 CA 00118 2

Delaney, J. {¶1} Defendant-Appellant Hazel McAllister appeals the October 3 1, 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 P atrol were investigating an automobile accident in Licking County, Ohio. D uring 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 w oman as she was getting

into her vehicle. The woman was later identified as Defendant-A ppellant 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 lice nse, 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 searc h of the vehicle. {¶5} During the search of the vehicle, law enforcement personne l located multiple items: (1) an unsecured and loaded .45 caliber Kimber Warrior handgun on the front passenger floorboard; (2) two baggies containing marijuan a; (3) a piece of tin foil containing heroin; and (3) two vacuum sealed bags containing 88 3.8 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 Co unty Grand Jury indicted Defendant-Appellant Hazel McAllister for aggravat ed possession of drugs, having a weapon under disability, carrying a concealed weapon, and possession of heroin. At that time of the indictment, McAllister was incarcer ated in Summit County. Case No. 2017 CR 00497 was dismissed without prejudice on December 1 5, 2017. {¶7} On February 21, 2018, the Licking County Grand Jury indict ed DefendantAppellant Hazel McAllister on four counts in Case No. 2018 CR 0 0120: (1) aggravated drug possession (methamphetamine) in an amount that equals or e xceeds 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 violat ion of R.C. 2923.13(A)(2); (3) carrying concealed weapons, a fourth-degree felony in viola tion 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 sp ecifications 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 inc arcerated in the Dayton Correctional Facility and re leased on January 13, 2019. After her release, she was instructed to report to Licking County Adult Court Services . On January 23, 2019, theLicking County, Case No. 2019 CA 00118 4

trial court issued a capias for McAllister’s arrest for her fai lure 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 McAlliste r’s bond and ordered a capias for McAllister’s arrest. McAllister was arrested and app eared in court on March 18, 2019. The trial court set McAllister’s bond at $50,000 and orde red electronic monitoring. The jury trial was rescheduled to April 24, 2019. {¶11} McAllister failed to appear for the April 24, 2019 jury t rial. The trial court

revoked McAllister’s bond and issu ed a capias for her arrest. {¶12} McAllister turned herself in and appeared for a bond forf eiture 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 contin ued to July 24, 2019. {¶13} On July 19, 2019, McAllister filed a motion to continue t he jury trial and set the matter for a change of plea and sentencing hearing. The cha nge 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 l ocated and she had failed to report to ACSD since July 29, 2019. The trial court ordered a c apias issued for her arrest. {¶15} On September 9, 2019, the matter came on for a change of plea and sentencing hearing. McAllister fa iled to appear. The trial cour t 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 tr ial 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 f or 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 McAllist er 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, wh ich 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 Par ticulars 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 th e indictment as

to Count One to indicate that it was a violation of R.C. 2925.1 1(A)(C)(1)(d), a felony of the first-degree and the language of the statute to indicate th at “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 ple a and sentencing hearing. McAllister stated at the hearing it was her intention to withdr aw her not guilty pleas. The trial court conducted the plea colloquy. McAllister pleaded gui lty to an amended Count One, aggravated possession of drugs, a first-degree felony in v iolation of R.C. 2925.11(A)(C)(1)(d), which carried a maximum prison term of thr ee to eleven years; Count Two, having weapons under d isability, a third-degree felo ny in violation of R.C. 2923.12(A)(1) and (2), with a maximum prison term of 36 months; Count Three, carryingLicking 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 b een 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 als o 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 f atal 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 chi ldren. (T. 21). While she was on pretrial bond, she maintained employment and gave cl ean 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 ju dicial release twice and it had been revoked both times. (T. 22). She applied for ju dicial 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 see n one come close to that, 883 grams. I forget what it takes to be mandator y prison, but it’s like 15 or something like that. And it was in 2016. But yo u 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 her e, 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 warra nt 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 stateLicking 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 p rotect the public, punish the Defendant, not disproportionate to the c rime she’s committed, and necessitated by her criminal history * * * and t hat this offense occurred while she was on supervision. (T. 24, 26-27). {¶23} On October 31, 2019, the trial court filed its judgment e ntry sentencing McAllister to an aggregate prison term of ten years. In the sen tencing 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 Cour t finds that the consecutive sentences are necessary to protect the pub lic from future crime or to punish the offender and that consecutive sen tences are not disproportionate to the seriousness of the offender’s condu ct 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 o ffenses 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. Th e offender’sLicking County, Case No. 2019 CA 00118 9

history of criminal conduct demonstrates that consecutive sente nces are necessary to protect the public from future crime by the offend er. {¶24} It is from this judgment entry that McAllister now appeal s. 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 I N

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 th e 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 consecu tive sentences. We disagree. {¶28} McAllister was convicted and sentenced to five years in p rison for aggravated possession of drugs, a first-degree felony; three ye ars in prison for having weapons under disability, a third-degree felony; one year in pr ison for carrying concealed weapons, a fourth-degree felony; and one year in prison for pos session 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]ppella te 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 ma y only modify or vacate a sentence if it finds by clear and convincing evidence that th e 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 pr oof 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 con current 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 consec utive sentences and provides: If multiple prison terms are imposed on an offender for convict ions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive ser vice 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 par t 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 tha t 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 analysi s and can determine that the record contains evidence to support the findings, consecutive s entences 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 includ ed in the sentencing entry. Id . at the syllabus. {¶32} The relationship between the clear and convincing standar d 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 or der 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 convinci ng” 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 stan dard 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 rest riction is on the appellate court, not the trial judge. This is an extremely defe rential 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 pro ceedings before the court, not just the sentencing. And while the court has the obligation to make separate and distinct findings under R.C. 29 29.14(C)(4) before imposing sentence, support for those findings may appear anywhere in the “record” and not just at the time the court imposes cons ecutive

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 t he trial court did not make the proper findings during the sentencing hearing. At the sente ncing hearing, the trial court stated consecutive sentences were necessary “to protect t he public, punish the Defendant, not disproportionate to the crime she’s committed, a nd 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 consecutiv e sentences were proportionate to the seriousness of her conduct but did not men tion whether consecutive sentences were proportionate to the danger she posed to the pub lic. She argues the trial court made an incomplete finding as to proportionality, the thi rd required finding to impose consecutive sentences. She does not argue the trial court faile d to make the “necessary” finding under R.C. 2929.14(C)(4) or any of the three alternativ e 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 recit e a word-for-word recitation of the language of the statute. ““[A]s long as the r eviewing court can discern that the trial court engaged in the correct analysis and can de termine that the record contains evidence to support the findings, consecutive sentence s should be upheld.”

Bonnell , 2014-Ohio-3177, ¶ 29. {¶35} During its sentencing of McAllister, the trial court addr essed the seriousness of McAllister’s conduct. The amount of methamphetamine in McAll ister’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 mandato ry prison term. During her arrest, a loaded weapon was also found in her posses sion. {¶36} The trial court noted McAllister’s habit of ignoring cour t orders. At the time of her arrest for possession of 883 grams of methamphetamine, h eroin, 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 releas e a third time, it was denied. During the pendency of this case, McAllister failed to appear i n court at least three times for which she was arrested. She also failed to appear for pre-t rial supervision, also requiring the issuance of a capias. She did not contact her att orneys or the trial court to excuse her absences. Her original bond was set at $50,000. At t he 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 “con secutive sentences are notLicking County, Case No. 2019 CA 00118 15

disproportionate to the seriousness of the offender's conduct a nd to the danger the offender poses to the public” befo re imposing consecutive sente nces, it did state at the sentencing hearing that consecutive sentences were “not disprop ortionate to the crime she’s committed.” (T. 26-27). The trial court addressed the ser iousness 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 engag ing in criminal activity while on parole or probation. Based on the seriousness of her c onduct and the danger of her continued failure to abide by the law, the trial court foun d a single sentence inadequate. Further, the trial court stated in the sentencing e ntry that “consecutive sentences are not disproportionate to the seriousness of the of fender’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 clea rly 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.