[Cite as State v. Moore, 2014-Ohio-765.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2013-06-044 

 

 : O P I N I O N

 - vs - 3/3/2014 

 : 

JEFFREY S. MOORE, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 1012 CR 633 

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside 

Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee 

R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 10 South Third 

Street, Batavia, Ohio 45103 

 HENDRICKSON, J. 

{¶ 1} Defendant-appellant, Jeffrey S. Moore, appeals his sentence in the Clermont 

County Court of Common Pleas for two counts of involuntary manslaughter and one count of 

obstructing justice. As the trial court did not make the required findings for the imposition of 

consecutive sentences, this matter is remanded to the trial court for resentencing in 

accordance with R.C. 2929.14(C)(4). 
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{¶ 2} On or about July 29, 2010, appellant and his acquaintance, Ronald Godfrey, 

committed a felony theft offense. The two were spotted by neighbors during the commission 

of the offense and they fled the scene in a Penske truck. Godfrey was driving and appellant 

was a passenger. After a protracted attempt to evade police, appellant and Godfrey reached 

a red light at the intersection of State Route 32 and Bells Lane. There, Godfrey drove the 

truck onto the berm to avoid traffic stopped in front of him, proceeded into the intersection, 

collided with a van, and thereby killed both of the van's passengers. 

{¶ 3} Appellant and Godfrey exited the truck and attempted to further evade police, 

but they were soon captured. Upon capture, appellant falsely communicated to the police 

that the stolen truck was driven by a third person known as "Mike." Appellant continued to 

indicate that "Mike" was the driver for several hours until he eventually admitted that "Mike" 

was a fictitious person, and that the truck was actually driven by Godfrey. 

{¶ 4} On August 8, 2012, appellant was indicted for murder, involuntary 

manslaughter, and aggravated robbery. On March 29, 2013, appellant pled guilty to two 

counts of involuntary manslaughter in violation of R.C. 2903.04(A), felonies of the first 

degree, and one count of obstructing justice in violation of R.C. 2921.32(A)(5), a felony of the 

third degree. The remaining charges were dropped. At his sentencing hearing on June 3, 

2013, the trial court imposed a sentence of 11 years for each of the two involuntary 

manslaughter convictions and 18 months for the obstructing justice conviction, to be served 

consecutively for an aggregate prison term of 23 years and six months. Appellant appealed, 

raising as his sole assignment of error the following: 

{¶ 5} THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO 

CONSECUTIVE PRISON TERMS. 

{¶ 6} Appellant argues that the trial court's sentence is contrary to law, as the court 

failed to make the necessary statutory findings before imposing consecutive sentences as 
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required by R.C. 2929.14(C)(4). Therefore, he contends that pursuant to R.C. 

2953.08(G)(2)(b) this court must vacate his sentence and remand the matter for 

resentencing. For the reasons discussed below, we agree. 

{¶ 7} At the outset, we note that the state's brief recites an outdated standard of 

review. This court no longer reviews felony sentences under an abuse of discretion 

standard. State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 9, 

citing State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6-7. 

Rather, we have held that "the standard of review set forth in R.C. 2953.08(G)(2) shall govern 

all felony sentences." State v. Marshall, 12th Dist. Warren No. CA2013-05-042, 2013-Ohio5092, ¶ 6, quoting Crawford at ¶ 6. Pursuant to R.C. 2953.08(G)(2), an appellate court may 

vacate the sentence and remand the matter to the sentencing court for resentencing if the 

appellate court "clearly and convincingly finds" that the sentence is contrary to law. This is 

an "extremely deferential standard of review." Crawford at ¶ 8. 

{¶ 8} Nevertheless, "[a] consecutive sentence is contrary to law where the trial court 

fails to make the consecutive sentencing findings as required by R.C. 2929.14(C)(4)." 

Marshall at ¶ 8, citing, inter alia, State v. Warren, 12th Dist. Clermont No. CA2012-12-087, 

2013-Ohio-3483, ¶ 16; State v. McCoy, 12th Dist. Warren No. CA2013-04-033, 2013-Ohio4647. According to R.C. 2929.14(C)(4): 

If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the 

offender to serve the prison terms consecutively if the court finds 

that the consecutive service is necessary to protect the public 

from future crime or to punish the offender and that consecutive 

sentences are not disproportionate to the seriousness of the 

offender's conduct and to the danger the offender poses to the 

public, and if the court also finds any of the following: 

(a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a 

sanction imposed pursuant to section 2929.16, 2929.17, or 

2929.18 of the Revised Code, or was under post-release control 
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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. 

In short, the statute requires a trial court imposing a consecutive sentence to make three 

findings regarding that sentence: (1) that a consecutive sentence is necessary to protect the 

public from future crime or punish the offender, (2) that it is not disproportionate to the 

seriousness of the crimes and the danger the offender poses to the public, and (3) one of the 

three factors listed in subsections (a) through (c). Warren at ¶ 17. 

{¶ 9} This court does not require that a trial court imposing consecutive sentences 

state any "talismanic language" in order to comply R.C. 2929.14(C)(4). Id. at ¶ 16, citing 

State v. Kuykendall, 12th Dist. Clermont No. CA2004-12-111, 2005-Ohio-6872, ¶ 24. 

However, "the consecutive sentence findings must be made wholly separate and apart from 

any consideration given to the purposes and principles of sentencing [under R.C. 2929.11] 

and recidivism factors [under R.C. 2929.12]." Marshall at ¶ 14. Although there may be 

significant overlap in the factors identified in R.C. 2929.11, 2929.12, and 2929.14(C)(4), 

respectively, this court is not permitted "to parcel out findings from the trial court's colloquy." 

Id. at ¶ 17, 20. 

{¶ 10} In the present case, the trial court stated at appellant's sentencing hearing that 

it was required to impose a sentence that is consistent with the twofold principles and 

purposes of sentencing. Additionally, the trial court indicated that it was required to look at a 

variety of other factors in determining the appropriate sentence to impose. For example, in 
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examining the recidivism factors, the trial court noted that appellant had been given the 

opportunity to avoid a prison sentence for a prior conviction in 2009, but had squandered that 

opportunity, gone to prison, and completed his postrelease control only a month and a half 

before committing the present offenses. The trial court then examined the seriousness 

factors, and concluded that the involuntary manslaughter offenses were "inherently serious 

cases" because they led to the deaths of two people. It also concluded that the obstructing 

justice conviction was a "more serious offense than behaviors which normally constitute the 

offense" because it impeded an investigation into the serious crimes that led to the two 

deaths. 

{¶ 11} Further, the trial court looked for, and found, genuine remorse. Yet it noted that 

appellant had not responded favorably to sanctions that had been previously imposed for 

criminal convictions, and that appellant had "made conscience [sic] choices and decision[s] 

that day to engage in multiple criminal activities," which ultimately led to the deaths of two 

people. Taking all of these factors into account, the trial court stated its agreement with the 

state that appellant's offenses "scream out for consecutive sentences." 

{¶ 12} While the trial court may have identified what it believed to be ample 

justification for the imposition of consecutive sentences, it did not make the required findings 

regarding consecutive sentences on the record. See Stamper, 2013-Ohio-5669 at ¶ 25; 

Marshall, 2013-Ohio-5092 at ¶ 23-24. Thus, appellant's sole assignment of error is 

sustained. 

{¶ 13} Judgment reversed as to sentencing only and the cause remanded to the trial 

court for resentencing in accordance with R.C. 2929.14(C)(4). 

PIPER, J., concurs. 

 RINGLAND, P.J., concurs separately. 
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RINGLAND, P.J., concurring separately. 

 As I previously lamented in my concurring opinion in Marshall, 2013-Ohio-5092 at ¶ 

27, we are constrained by the legislature under R.C. 2929.14(C) from analyzing the trial 

court's sentence under a common sense approach. Despite our opinion in Warren, 2013-

Ohio-3483 at ¶ 16, that "talismanic language" is not required, such requirement appears to 

be alive and well. While I chafe at this legislative dictate, nevertheless I will follow it until 

directed otherwise by our higher court.