[Cite as State v. Clinkscale, 2016-Ohio-773.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

BRUCE CLINKSCALE, 

 DEFENDANT-APPELLANT 

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CASE NO. 15 MA 57 

OPINION 

 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 2014 CR 633-A 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Attorney Paul Gains 

Mahoning County Prosecutor 

Attorney Ralph Rivera 

Assistant Prosecutor 

21 West Boardman Street 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney John Falgiani, Jr. 

8872 East Market Street 

P.O. Box 8533 

Warren, Ohio 44484 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: February 24, 2016 
[Cite as State v. Clinkscale, 2016-Ohio-773.]

DeGENARO, J. 

{¶1} Defendant-Appellant, Bruce Clinkscale, appeals the judgment of the 

Mahoning County Court of Common Pleas in which he was sentenced to two years of 

prison consecutive to a prison term of fifteen years that he was currently serving from 

previous convictions. Clinkscale asserts his sentence should not have been imposed 

consecutive to his current prison term and moreover is disproportionate to his offense 

and his co-defendant's sentence. Because the record demonstrates that the trial 

court adhered to the felony sentencing statutes, the trial court's judgment is affirmed. 

{¶2} In 2010, Clinkscale pled and was sentenced to fifteen years in prison by 

the Mahoning County Court of Common Pleas in consolidated cases from 2006 and 

2007. While serving this sentence at the Ohio State Penitentiary in Youngstown, 

Ohio, Clinkscale and his wife Adrial were indicted by a grand jury for conveying drugs 

of abuse onto the grounds of a governmental facility, R.C. 2921.36(A)(2)(G)(2), a 

third degree felony. 

{¶3} Adrial pled guilty and the State recommended a community control 

sanction; the trial court imposed a four year community control sanction. 

{¶4} The State and Clinkscale entered into a Crim.R. 11 plea agreement 

which provided that Clinkscale would plead guilty and in exchange the State would 

seek a sentence of two years “no more and no less." There was no indication in the 

plea agreement whether the sentence was to be served concurrently or 

consecutively. The sentencing range for this offense is nine to thirty-six months. R.C. 

2929.14. 

{¶5} At the sentencing hearing the State requested that the sentence be 

imposed consecutive to Clinkscale's current prison term, arguing that Clinkscale 

enticed his wife to bring drugs into the prison demonstrating an inability to follow the 

law, exemplified by the fact he was in prison and committed the instant offense. 

Although the State noted that there did not appear to be a statutory section dealing 

with incarcerated offenders and consecutive sentences, the prosecutor argued that 

the trial court should take the opportunity to send a message to deter other offenders 

and protect the community and correction officers. The State noted that if Clinkscale 
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was given a concurrent sentence it would send a message to prisoners that there are 

no ramifications for criminal offenses committed while incarcerated. 

{¶6} Defense counsel raised two arguments, first that the offense can be 

punished with probation. Second, Clinkscale is not the first prisoner to commit an 

offense while incarcerated, therefore the issue is proportionality, especially keeping in 

mind that his wife and co-defendant received probation, although counsel conceded 

Clinkscale did have a record. The State countered that this was the first offense for 

Adrial other than a speeding ticket. 

{¶7} The trial court made the following statements during the hearing: 

I think there is certainly something to be said for the need for a more 

severe punishment for a crime that's committed while somebody is 

already in prison and, basically, for the same reasons that you've just 

enumerated; if we don't severely punish people who are already in 

prison committing more crimes, there is nothing to deter that from 

happening because everybody who is in the same situation where--you 

basically have nothing to lose, and so unless we, as a society, force 

you to have something to lose, then there's no motivation for anybody 

while they're in prison to rehabilitate, to change your ways, to do 

anything different than what they're in there for, which is continuing to 

commit crimes. 

 So I don't believe that the nature of the crime makes it one that 

suggests that Defendant is amenable to community control, and I also 

believe that prison is the only appropriate sanction that is consistent 

with the principles and purposes of sentencing. The Defendant was 

serving a prison term at the time of the offense. He had previously 

served a prison term, and the minimum sanction will not accomplish the 

overriding purpose of felony sentencing without imposing an 

unnecessary burden on state and local government resources. 

* * * 
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 Upon consideration of the oral statements of Defendant, the 

prosecutor, the presentence investigation report and all of the 

circumstances of this case, as well as the principles and purposes of 

sentencing under Revised Code Section 2929.11, and having 

considered the seriousness and recidivism factors under 2929.12 for 

the offense of illegal conveyance of drugs of abuse onto the grounds of 

a governmental facility, a violation of Revised Code Section 

2921.36(A)(2)(G)(2), a felony of the third degree, the Court finds that 

the Defendant previously pleaded guilty to that charge and that he is 

not amenable to community control. Therefore, Defendant is sentenced 

to serve a term of two years in prison, to be served consecutive with 

Case Number * * * 2007 CR 56. The Court finds that the crime was 

committed while Defendant was under a sanction, and that a single 

term does not adequately reflect the seriousness of the conduct. The 

Court also finds that Defendant's criminal history shows consecutive 

terms are needed to protect the public. 

{¶8} The trial court imposed a two-year prison term to be served consecutive 

to Clinkscale's current fifteen-year prison term, finding in the sentencing entry: 

The Court has reviewed ORC 2929.11, 2929.13, and 2929.14 as 

it applies to Defendant. 

The Court considered the record, oral statements, and the 

principles and purposes of sentencing under Ohio Revised Code 

2929.11, and has balanced the seriousness and recidivism factors 

under Ohio Revised Code 2929.12. The Court find that Defendant is 

not amenable to a community control sanction and prison is the only 

sanction consistent with the principles and purposes of sentencing that 

does not place an unreasonable burden on the State and Local 

resources. 
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* * * 

The Court finds in this matter consecutive sentences are necessary to 

protect the public from future crime and to punish the offender 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 and; the offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

{¶9} Clinkscale asserts in his sole assignment of error: 

The trial court abused its discretion and acted contrary to law in 

imposing a consecutive sentence upon Appellant. 

{¶10} This Court is currently split as to the standard of review to apply in 

felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014–Ohio–919 

(Vukovich, J., Donofrio, J., majority with DeGenaro, J., concurring in judgment only 

with concurring in judgment only opinion), which applied the two-part test set forth in 

the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 

N.E.2d 124, and State v. Wellington, 7th Dist. No. 14 MA 115, 2015–Ohio–1359 

(Robb, J., DeGenaro, J., majority with Donofrio, J. concurring in judgment only with 

concurring in judgment only opinion) which applied R.C. 2953.08(G) and limiting 

appellate review of felony sentences to determining whether they are clearly and 

convincingly contrary to law. The issue is currently before the Ohio Supreme Court. 

State v. Marcum, 141 Ohio St.3d 1453, 2015–Ohio–239, 23 N.E.3d 1453. 

Regardless of which standard of review is applied here, the outcome is the same. 

{¶11} R.C. 2929.14 provides a trial court may impose consecutive sentences 

upon an offender if the court makes three statutory findings: 

[T]hat the consecutive service is necessary to protect the public from 
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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 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. 

R.C. 2929.14(C)(4). 

{¶12} The findings must be made both at the sentencing hearing and in the 

sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 

659, ¶ 37. However, a trial court need not state reasons to support its findings nor is 

it required to use any "magic" or "talismanic" words, so long as it is apparent that the 

court conducted the proper analysis. State v. Jones, 7th Dist. No. 13 MA 101, 2014-

Ohio-2248, ¶ 6. "Pursuant to Bonnell, this court must also determine whether the 

record contains evidence in support of the trial court's findings." State v. Correa, 7th 

Dist. 13 MA 23, 2015-Ohio-3955, ¶ 76. 

{¶13} Both sides were given the opportunity to make statements to the court. 
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The prosecutor's argument included references to the consecutive sentencing 

factors, specifically that Clinkscale was in prison and still broke the law, and that the 

court should take the opportunity to send a message to deter other incarcerated 

offenders. The trial court acknowledged these arguments, stating; "I think there is 

certainly something to be said for the need for a more severe punishment for a crime 

that's committed while somebody is already in prison and, basically, for the same 

reasons that you've just enumerated; if we don't severely punish people who are 

already in prison committing more crimes, there is nothing to deter that from 

happening because everybody who is in the same situation where--you basically 

have nothing to lose[.]" This satisfies the second finding required under subpart 

(C)(4) that consecutive sentences are not disproportionate to the conduct and the 

danger posed to the public,. 

{¶14} Regarding the first finding required under subpart (C)(4), supra, that a 

consecutive sentence is necessary to protect the public or punish the offender, the 

trial court satisfied this requirement, stating: "so unless we, as a society, force you to 

have something to lose, then there's no motivation for anybody while they're in prison 

to rehabilitate, to change your ways, to do anything different than what they're in 

there for, which is continuing to commit crimes." Finally, the trial court made the 

required finding under subpart (C)(4)(c) that the offender's criminal history 

demonstrates consecutive sentences are necessary to protect the public from future 

crimes by the offender by stating: "The Court also finds that Defendant's criminal 

history shows consecutive terms are needed to protect the public." The trial court 

then memorialized these findings in the sentencing entry. 

{¶15} The trial court complied with all applicable statutes in order to impose a 

consecutive sentence. Furthermore, the two-year prison term imposed for this 

offense is within the general nine to thirty-six month range applicable for most third 

degree felonies. Accordingly, this argument is meritless. 

{¶16} Clinkscale argues in the alternative that his sentence is disproportionate 

to the sentence received by his wife, Adrial. "A defendant alleging disproportionality 
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in felony sentencing has the burden of producing evidence to 'indicate that his 

sentence is directly disproportionate to sentence given to other offenders with similar 

records who have committed these offenses." State v. Williams, 7th Dist. No. 

13MA125, 2015-Ohio-4100, at ¶ 52 (citing State v. Wilson, 8th Dist. No. 99331, 

2013–Ohio–3915, ¶ 16). In Williams, the appellant argued that his sentence was 

disproportionate to three other defendants who committed similar offenses. While this 

Court found that the appellant did not provide evidence of similarly situated 

defendants, this Court also found that he failed to provide evidence that his own 

sentence was disproportionate. Id. at ¶ 52. 

{¶17} Clinkscale has failed to provide evidence of similarly situated offenders. 

As such, he has not met his burden to argue disproportionality in that regard. 

Regarding Adrial, his wife and co-defendant, the record precludes a finding that 

Clinkscale and Adrial were similarly situated. At the time of the commission of the 

offense Adrial was not incarcerated in a penitentiary, and except for a speeding 

violation, she had no criminal record until her conviction in this case. Contrarily, 

Clinkscale was serving a fifteen-year sentence imposed for multiple convictions. 

Clinkscale's criminal history is incomparable to Adrial's. 

{¶18} Accordingly, Clinkscale's sole assignment of error is meritless, and the 

judgment of the trial court is affirmed. 

Waite, J., concurs. 

Robb, J., concurs.