[Cite as State v. Balderson, 2018-Ohio-3683.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 17AP-690 

v. : (C.P.C. No. 17CR-1925)

Brian L. Balderson, : (ACCELERATED CALENDAR) 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on September 13, 2018 

 

On brief: Ron O'Brien, Prosecuting Attorney, and 

Kimberly M. Bond, for appellee. 

On brief: Brian L. Balderson, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Defendant-appellant, Brian L. Balderson, appeals from the August 28, 2017 

judgment of the Franklin County Court of Common Pleas imposing consecutive sentences. 

For the following reasons, we affirm. 

{¶ 2} On April 6, 2017, a Franklin County Grand Jury indicted Balderson on two 

counts of forgery, in violation of R.C. 2913.31, and two counts of receiving stolen property, 

in violation of R.C. 2913.51. Balderson initially entered a not guilty plea. On July 25, 2017, 

he withdrew his not guilty plea and entered a guilty plea to the two counts of forgery. The 

trial court accepted his guilty plea, found him guilty, entered a nolle prosequi on the counts 
No. 17AP-690 2 

of receiving stolen property, and delayed sentencing for the preparation of a presentence 

investigation report ("PSI"). 

{¶ 3} At the sentencing hearing, the trial court imposed a 7-month prison term for 

each forgery count and ordered that the terms be served consecutively, for a total of 14 

months. The trial court also ordered Balderson to pay restitution in the amount of $834.72, 

as jointly recommended by the parties. 

{¶ 4} Balderson, pro se, appealed his sentence, asserting the following assignment 

of error: 

The trial court erred in sentencing Appellant to consecutive 

sentences without findings from the record. 

{¶ 5} In his sole assignment of error, Balderson challenges the imposition of 

consecutive sentences. He appears to argue that the record does not support consecutive 

sentencing. As an initial matter, Balderson complains that the trial court and the 

prosecutor referred to a PSI but the PSI was not made available to him. He also contends 

that the PSI was not made a part of the record because it was not presented to the court at 

the sentencing hearing and was not a part of the information provided to him by the Ohio 

Public Defender when the attorney withdrew from representing him on appeal. 

{¶ 6} If a PSI is prepared, the court shall allow the prosecutor handling the case 

and the defendant's counsel or the defendant to inspect the report prior to sentencing. R.C. 

2951.03(B) and (D)(1). The prosecutor, the defendant's counsel, and the defendant are 

required to return any copies of the PSI to the court following sentence and are not 

permitted to retain a copy. R.C. 2951.03(D)(2). The contents of a PSI are confidential and 

are not a public record, R.C. 2951.03(D)(1), but the report is part of the record on appeal 

when the sentence is appealed. R.C. 2953.08(F)(1). 

{¶ 7} The trial court ordered the preparation of a PSI. At Balderson's sentencing 

hearing, the trial court noted that it had received and reviewed the PSI. The court asked 

defense counsel if she had any corrections or additions to the report. Defense counsel 

stated that she did not. This statement implies that she reviewed the PSI prior to 

sentencing. Because R.C. 2951.03(B) and (D)(1) require that the trial court allow either 

defense counsel or the defendant to read the PSI prior to sentencing, Balderson's complaint 

that he was not able to review the PSI is without merit. Also, the public defender could not 
No. 17AP-690 3 

provide Balderson with a copy of the PSI because all copies of the PSI must be returned to 

the trial court after sentencing, and the PSI is not a public record and must be kept 

confidential. R.C. 2951.03(D)(1) and (2). The prosecutor filed a motion to supplement the 

appellate record with the PSI. In accordance with R.C. 2953.08(F)(1), we granted that 

request. Thus, we are able to review the PSI to determine whether the trial court's findings 

with regard to consecutive sentences are supported by the record and the PSI. 

{¶ 8} In order to impose consecutive terms of imprisonment, R.C. 2929.14(C)(4) 

requires that the trial court make at least three distinct findings: (1) that consecutive 

sentences are necessary to protect the public from future crime or to punish the offender, 

(2) 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 (3) that one or more of the 

following subsections 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. 

{¶ 9} A trial court is required to make the findings mandated by R.C. 2929.14(C)(4) 

at the sentencing hearing and must include those findings in its sentencing entry. State v. 

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus. "[A] word-for-word recitation of 

the language is not required, and as 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. at ¶ 29. 
No. 17AP-690 4 

{¶ 10} In this case, all of the required statutory findings were incorporated in the 

trial court's sentencing journal entry. At the sentencing hearing, the trial court made the 

following findings in support of consecutive sentences: 

Pursuant to Revised Code 2929.14 subsection C4, because 

these offenses constitute an ongoing course of conduct, the 

court believes that no single sentence can satisfy that course of 

conduct, the danger that that conduct poses to the community, 

and in order to ensure the safety of the community, those 

sentences will run consecutive with each other, for a total of 14 

months of incarceration with 79 days of credit. 

(Tr. at 29.) 

{¶ 11} Although the trial court used some of the statutory terminology in making its 

findings, it did not use the exact language of the statute. A talismanic incantation of the 

words of the statute is not necessary, however, as long as an appellate court is able to discern 

that the trial court engaged in the correct analysis. Bonnell at ¶ 37. It is clear from the 

sentencing hearing transcript that the trial court considered Balderson's lengthy criminal 

history and found that consecutive sentences were necessary to protect the public from 

future crime and to punish Balderson. This satisfies the first finding required under R.C. 

2929.14(C)(4) and also a finding under R.C. 2929.14(C)(4)(c). 

{¶ 12} The disproportionality finding of R.C. 2929.14(C)(4) requires that the trial 

court find that consecutive sentences are not disproportionate to (1) the seriousness of the 

offender's conduct and (2) to the danger the offender poses to the public. State v. Hairston, 

10th Dist. No. 17AP-416, 2017-Ohio-8719, ¶ 13. Instead of referencing proportionality, the 

trial court found that "no single sentence can satisfy that course of conduct, the danger that 

that conduct poses to the community." (Tr. at 29.) This language is more akin to the finding 

in R.C. 2929.14(C)(4)(b) which states: 

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. 

Courts have held that even though a trial court employed the language of R.C. 

2929.14(C)(4)(b), rather than the specific language of R.C. 2929.14(C)(4), the statement 
No. 17AP-690 5 

equated to a proportionality/danger to the public finding. State v. White, 7th Dist. No. 16 

MA 0143, 2017-Ohio-7797, ¶ 14; State v. Fields, 10th Dist. No. 16AP-417, 2017-Ohio-661. 

By stating "no single sentence can satisfy that course of conduct," the trial court weighed 

the severity of consecutive sentences against the seriousness of the conduct. This 

phraseology is sufficient to indicate that the trial court engaged in a proportionality analysis 

even though it did not use the statutory language. 

{¶ 13} Accordingly, Balderson's sole assignment of error is overruled, and we affirm 

the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed.

SADLER and LUPER SCHUSTER, JJ., concur.