[Cite as State v. Barney, 2013-Ohio-4562.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-13-09 

 v. 

NATHAN S. BARNEY, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 12 CR 0177 

Judgment Affirmed 

Date of Decision: October 15, 2013 

 

APPEARANCES: 

 

Gene P. Murray for Appellant 

Derek W. DeVine for Appellee 
Case No. 13-13-09 

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SHAW, J.

{¶1} Defendant-appellant Nathan S. Barney (“Barney”) appeals the March 

30, 2013, judgment entry of the Seneca County Common Pleas Court sentencing 

Barney to 20 years in prison following Barney’s guilty pleas to four counts of 

Burglary in violation of R.C. 2911.12(A)(1), all felonies of the second degree, and 

one count of Burglary in violation of R.C. 2911.12(A)(3), a felony of the third 

degree. 

{¶2} On September 27, 2012, Barney was indicted in a five count 

indictment. Barney was charged with four counts of Burglary in violation of R.C. 

2911.12(A)(1), all felonies of the second degree, for incidents occurring 

November 27, 2011 (Count 1), May 8, 2012 (Count 3), May 14, 2012 (Count 4), 

and January 17, 2012 (Count 5). (Doc. 1). Barney was also indicted for Burglary 

in violation of R.C. 2911.12(A)(3), a felony of the third degree, for an incident 

occurring May 4, 2012 (Count 2). (Id.) 

{¶3} On October 11, 2012, Barney was arraigned and pled not guilty to the 

charges. (Doc. 8). 

{¶4} On January 24, 2013, a change of plea hearing was held wherein 

Barney agreed, pursuant to a written negotiated plea agreement, to plead guilty to 

the charges as indicted in this case. (Docs. 15, 16). In exchange, the State agreed 
Case No. 13-13-09 

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not to prosecute another separate case out of Tiffin.1

 (Doc. 15) The parties did 

not agree on a sentencing recommendation. (Id.) At the hearing, the court 

accepted Barney’s pleas and found him guilty.2

 (Doc. 16). The court then ordered 

a pre-sentence investigation and set the matter for a sentencing hearing. (Id.) 

{¶5} On February 28, 2013, a sentencing hearing was held. At the 

sentencing hearing, the prosecutor made a statement that for a period of months 

the city of Tiffin was “under siege” from the series of Burglaries perpetrated by 

Barney. (Tr. at 2). According to the prosecutor, the Burglaries changed the lives 

of those victims involved, and created “fear” and “havoc” in the community. (Tr. 

at 5). The prosecutor then recommended consecutive sentences for a total of 28 

years in prison. (Tr. at 7). 

{¶6} Several people then made statements on Barney’s behalf, requesting 

leniency. Two of Barney’s friends and co-workers made statements that Barney 

was “a genuine, caring[,] loving, hard-working team player” and that Barney 

“showed nothing but respect and kindness” to the elderly residents of the 

Autumnwood Care Center where Barney had worked for four years. (Tr. at 17, 

19). Barney’s mother also made a statement, as did Barney himself. Barney 

concisely stated that his time in jail had allowed him “time to get clean [from his 

 

1

 The handwritten notation on the written guilty plea lists this case as Tiffin PD Case #12-004377. 

2

 A transcript of this plea hearing was not provided. 
Case No. 13-13-09 

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prescription drug addiction] and get [his] mind right.” (Tr. at 22). Barney also 

apologized to the victims and to his family. (Tr. at 22). 

{¶7} Ultimately, the court sentenced Barney to 5 years in prison on Counts 

1, 3, 4, and 5, to be served consecutively to each other. (Tr. at 30). Barney was 

sentenced to 30 months in prison on Count 2, to be served concurrently to the 

other counts.3

 (Id.) Barney was thus sentenced to an aggregate prison term of 20 

years for these five counts. (Doc. 19). An entry reflecting this was filed March 1, 

2013. (Doc. 19). 

{¶8} It is from this judgment that Barney appeals, asserting the following 

assignment of error for our review. 

ASSIGNMENT OF ERROR 

IN AN ABUSE OF ITS DISCRETION, THE TRIAL COURT 

REVERSIBLY ERRED BY IMPOSING FOUR (4) 

CONSECUTIVE FIVE (5) YEAR SENTENCES UPON THE 

DEFENDANT-APPELLANT, ON COUNTS ONE, THREE, 

FOUR AND FIVE OF THE INDICTMENT, FOR BURGLARY, 

UNDER O.R.C. §2911.12(A)(1), ALL BEING FELONIES OF 

THE SECOND DEGREE, THEREFORE IN VIOLATION OF 

THE PRISON TERM SENTENCING GUIDELINES OF O.R.C. 

§2929.11(A), (B), AND O.R.C § 2929.12(B), (C), (D), (E), AND 

ALSO IN VIOLATION OF THE CONSECUTIVE PRISON 

TERM SENTENCING GUIDELINES OF O.R.C. §2929.41(A) 

AND §2929.14(C). FURTHERMORE, THE SENTENCING 

JUDGMENT ENTRY INDICATED A TOTAL STATED 

PRISON TERM OF TWENTY (20) YEARS, WHEN IN FACT, 

THERE WAS NO SUCH ‘STATED’ PRISON TERM IN THE 

 

3

 At this sentencing hearing, Barney was also sentenced on charges stemming from other cases. As there 

are no arguments before this court relating to those charges or the sentences, we do not further address 

them to prevent confusion on the charges and convictions pertaining to this case. 
Case No. 13-13-09 

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TRANSCRIPT OF THE SENTENCING HEARING, 

THEREBY RESULTING IN REVERSIBLE ERROR.

{¶9} In his assignment of error, Barney argues that the trial court erred by 

imposing consecutive sentences on Barney. Specifically, Barney contends that the 

consecutive sentences were not supported by the purpose of the felony sentencing 

factors in R.C. 2929.11, and R.C. 2929.12. In addition, Barney argues that the 

trial court erred by not specifically stating Barney’s aggregate prison term on the 

record at the sentencing hearing. 

{¶10} “A trial court’s sentence will not be disturbed on appeal absent a 

defendant’s showing by clear and convincing evidence that the sentence is 

unsupported by the record; the sentencing statutes’ procedure was not followed or 

there was not a sufficient basis for the imposition of a prison term; or that the 

sentence is contrary to law.” State v. Upkins, 3d Dist. Shelby No. 17-13-02, 2013-

Ohio-3986, ¶ 8, citing State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-Ohio767, ¶ 23 (the clear and convincing evidence standard of review set forth under 

R.C. 2953.08(G)(2) remains viable with respect to those cases appealed under the 

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *). 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.” Cross v. 

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. An appellate 

court should not, however, substitute its judgment for that of the trial court 
Case No. 13-13-09 

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because the trial court is “‘clearly in the better position to judge the defendant’s 

dangerousness and to ascertain the effect of the crimes on the victims.’” State v. 

Watkins, 3d Dist. Auglaize No. 2–04–08, 2004–Ohio–4809, ¶ 16, quoting State v. 

Jones, 93 Ohio St.3d 391, 400 (2001). 

{¶11} At the outset, we note that R.C. 2929.14(C)(4) requires a trial court 

to make specific findings before imposing consecutive sentences on an offender. 

While the trial court is required to make the specific findings, it is not required to 

list its reasoning for making the findings. State v. Hill, 3d Dist. No. 7-12-11, 

2013-Ohio-3873, ¶ 22. Specifically, with respect to the issues raised in this case 

R.C. 2929.14(C)(4) states, in relevant part: 

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: 

* * * 

(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.
Case No. 13-13-09 

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{¶12} In this case, Barney was convicted of a series of Burglary offenses he 

committed from November of 2011 to May of 2012. At the sentencing hearing, 

the trial court stated the following with regard to consecutive sentences: 

The court has considered the principals and purposes of felony 

sentencing under Ohio Revised Code Section 2929.11 and has 

balanced the seriousness and recidivism factors under Ohio 

Revised Code Section 2929.12. 

* * * 

Because of the different degrees of felonies, the Court has 

considered the factors and presumptions under Revised Code 

Section 2929.13 (B), (C), and (D) as it relates to each of these 

charges, convictions. 

* * * 

In case No. 177 the Court finds that the consecutive sentences 

are necessary to protect the public from future crime or to 

punish this defendant, and that consecutive sentences are not 

disproportionate to the seriousness of the defendant’s conduct 

and to the danger the defendant poses to the public. 

The Court further finds that 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 course of 

conduct adequately reflects the seriousness of the defendant’s 

conduct.

(Tr. at 24).4

 

4

 The language and the statutes cited by the trial court at the sentencing hearing were reflected in the 

sentencing entry as well. (Doc. 19). 
Case No. 13-13-09 

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{¶13} The court thus stated that it had considered the applicable statutes 

and directly cited the language of R.C. 2929.14(C)(4)(b) at the sentencing hearing. 

In addition, the court also stated the following on the record: 

Backing5

 [sic] into a car is, motor vehicles, bad. Breaking into a 

garage is bad. Breaking into an unoccupied structure of some 

sort, bad. Breaking into someone’s home – terrible. Horrible. 

* * * 

Homes have been broken into. Items stolen. Peoples[’] lives 

changed. 

(Tr. at 27-28). Thus before the court proceeded to sentence Barney to consecutive 

sentences for his second degree felony Burglary offenses, the trial court not only 

recited the language in 2929.14(C)(4)(b), but the court also gave some reasoning 

to support consecutive sentences, even though it was unnecessary. 

{¶14} However, Barney argues that his sentence was essentially unfair as 

Barney had no prior criminal history, had steady employment, and had only 

committed these Burglaries because of a drug addiction that Barney was working 

to overcome. Despite these arguments, the trial court’s sentence was authorized 

by law, the trial court explicitly stated that it had considered the applicable statutes 

both at the sentencing hearing and in the judgment entry of sentencing, and the 

trial court was within its discretion to sentence Barney to consecutive sentences. 

The trial court’s sentence was substantially less than the prosecutor’s 

 

5

 It would appear from the context here that the court meant “breaking” rather than backing. 
Case No. 13-13-09 

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recommended 28 year prison term, and it was considerably less than the maximum 

prison term allowable by law, as the court could have sentenced Barney to 8 years 

in prison on each of the four second degree felony Burglary offenses. 

{¶15} Nevertheless, we would note that evidence in the record does support 

the trial court’s decision to impose consecutive sentences. Barney’s burglaries 

were carried out over a span of months—a span that the prosecutor stated “created 

fear and * * * havoc in [the] community.” In addition, one of the victims of 

Barney’s burglaries was an 82 year old woman who awoke during the burglary. 

Barney also had other felony charges pending against him for similar crimes at the 

time of sentencing, and the PSI characterized Barney as a “Moderate” risk to 

recidivate. Finally, Barney also admittedly committed these crimes to acquire 

funds to allow him to feed an illicit drug habit. Therefore not only was Barney’s 

sentence not contrary to law, but there were also facts to support the consecutive 

sentences in the record. 

{¶16} Barney makes one final argument that the trial court erred by 

contending that the trial court failed to state Barney’s aggregate prison term on the 

record at the sentencing hearing. With regard to Barney’s sentence at the 

sentencing hearing, the trial court stated the following: 

Case No. 12CR0177, it will be the sentence of this Court that you 

serve a stated prison term of five years at the Ohio Department 

of Rehabilitations and Corrections on Count One, a stated 

prison term of 30 months at the Ohio Department of 
Case No. 13-13-09 

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Rehabilitation and Correction on Count Two, a stated prison 

team [sic] of five years on Count Three, a stated prison term of 

five years on Count Four, a stated prison term of five years on 

Count Five. 

The Sentences for Counts One, Three, Four and Five will be 

served consecutively to each other. The sentence in Count Two 

shall be served currently [sic]. 

(Tr. at 30-31). 

{¶17} While it is true that the trial court never explicitly stated the 

aggregate prison term on the record at the sentencing hearing, the trial court did 

plainly order the five year prison sentences for Counts 1, 3, 4, and 5 to be served 

consecutively. Moreover, after stating the length of the sentences but before the 

trial court concluded the hearing, the trial court asked Barney’s counsel if there 

was anything further from the defense and counsel said that there was not, 

indicating no confusion. Furthermore, if Barney or his counsel was unable to add 

the figures from the consecutive sentences together at the sentencing hearing, the 

trial court’s judgment entry of sentencing explicitly states that the “total stated 

prison term [is] Twenty (20) years.” (Doc. 19). As Barney cites us to no law 

showing us how the trial court’s omission was error and as there did not appear to 

be confusion about the length of the sentence at the sentencing hearing, we cannot 

find that the trial court erred. Accordingly, Barney’s assignment of error is 

overruled. 
Case No. 13-13-09 

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{¶18} For the foregoing reasons, Barney’s assignment of error is overruled 

and the judgment of the Seneca County Common Pleas Court is affirmed. 

Judgment Affirmed 

PRESTON, P.J. and ROGERS, J., concur. 

/jlr