[Cite as State v. Upkins, 2013-Ohio-3986.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SHELBY COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 17-13-02 

 v. 

LAMONE UPKINS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Shelby County Common Pleas Court 

Trial Court No. 11CR000264 

Judgment Affirmed 

Date of Decision: September 16, 2013 

 

APPEARANCES: 

 

Jonathan M. Richard for Appellant 

Timothy S. Sell and Jeffrey J. Beigel for Appellee 
Case No. 17-13-02 

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SHAW, J. 

{¶1} Defendant-appellant, Lamone Upkins (“Upkins”), appeals the January 

15, 2013 judgment of the Shelby County Court of Common Pleas finding him 

guilty of four counts of trafficking in drugs and sentencing him to serve thirty-six 

months in prison. 

{¶2} On September 29, 2011, the Shelby County Grand Jury indicted 

Upkins on four counts of trafficking in drugs in violation of R.C. 2925.03(A)(1), 

all felonies of the fifth degree. The indictment alleged that Upkins sold 

Clonazepam to a confidential informant on four separate occasions. A jury trial 

was held on December 29, 2011. The jury found Upkins guilty on all four counts. 

{¶3} On February 13, 2012, a sentencing hearing was held. The trial court 

sentenced Upkins to serve nine months in prison on each count, to be served 

consecutively for a total stated prison term of thirty-six months. 

{¶4} Upkins appealed his sentence to this Court, assigning as error the trial 

court’s failure to make the required statutory findings prior to imposing 

consecutive sentences pursuant to R.C. 2929.14(C)(4). In State v. Upkins, 3d Dist. 

Shelby No. 17-13-12, 2012-Ohio-6114, we found that the trial court did not make 

the required statutory findings and remanded the case to the trial court to address 

those findings. 
Case No. 17-13-02 

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{¶5} On January 15, 2013, the trial court resentenced Upkins again 

imposing consecutive sentences for a total stated prison term of thirty-six months. 

{¶6} Upkins now brings this appeal, asserting the following assignment of 

error. 

THE TRIAL COURT ERRED IN SENTENCING THE 

APPELLANT TO SERVE CONSECUTIVE SENTENCES, AS 

THE APPELLANT’S SENTENCE DOES NOT SERVE THE 

PURPOSE OF THE SENTENCING STATUTE PURSUANT 

TO OHIO REVISED CODE ANN. § 2929.11(A), IS CLEARLY 

AND CONVINCINGLY CONTRARY TO LAW, AND THE 

RECORD CLEARLY AND CONVINCINGLY DOES NOT 

SUPPORT THE TRIAL COURT’S FINDINGS. 

{¶7} In his sole assignment of error, Upkins argues that the trial court erred 

in imposing consecutive sentences. Specifically, Upkins again asserts on appeal 

that the trial court failed to make the appropriate statutory findings to impose 

consecutive sentences. He also maintains that imposing consecutive sentences is 

inconsistent with the purposes and principles of the felony sentencing statutes and 

that the record does not support the trial court’s decision to impose consecutive 

sentences. 

{¶8} 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. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-
Case No. 17-13-02 

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Ohio-767, ¶ 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) * * *); State v. 

Tyson, 3d Dist. Allen Nos. 1–04–38; 1–04–39, 2005–Ohio–1082, ¶ 19, citing R.C. 

2953.08(G). 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 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). 

{¶9} 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. 

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: 
Case No. 17-13-02 

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* * * 

(c) The offender’s history of criminal conduct demonstrates 

that consecutive sentences are necessary to protect the public 

from future crime by the offender. 

{¶10} Here, the trial court stated the following on the record at the 

resentencing hearing prior to imposing consecutive sentences. 

[T]he Court finds that consecutive sentencing is necessary to 

protect the public from future crimes, and it is not 

disproportionate to the seriousness of your [] conduct and the 

danger that you [] pose to the public. 

Further, the Court specifically finds that [] your past history of 

criminal conduct demonstrates that consecutive sentencing is 

necessary to protect the public from future crimes by [] you. 

(Tr. at 10). 

{¶11} In its judgment entry resentencing Upkins, the trial court stated the 

following relevant to the required statutory findings. 

For reasons stated on the record, and after consideration of the 

factors under the Revised Code Section 2929.12, the Court also 

finds that prison is consistent with the purposes of 2929.11 and 

the Defendant is not amenable to an available community 

control sanction. This court further finds that consecutive 

sentencing is necessary to protect the public from future crimes 

and is not disproportionate to the seriousness of the offender’s 

conduct and the danger the offender poses to the public. 

Further, this court specifically finds that the offender’s history 

of criminal conduct demonstrates that consecutive sentences are 

necessary to protect the public from future crime by the 

offender. 

(Doc. No. 22 at 2). 
Case No. 17-13-02 

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{¶12} On appeal, Upkins concedes that the trial court properly made the 

statutory finding regarding his history of criminal conduct stated in R.C. 

2929.14(C)(4)(c). However, with specific regard to the other two statutory 

findings contained in R.C. 2929.14(C)(4), Upkins argues that “it is not enough for 

the sentencing court to simply extract the statutory language and put it on the 

record. Instead, the court must ‘engage in the required analysis.’ ” (Appellant’s 

Brief at 9). 

{¶13} Upkins’ argument on appeal is inapposite to the precedent set by 

multiple appellate jurisdictions which have stated that R.C. 2929.14(C)(4) does 

not require the trial court to justify its findings by giving reasons for making those 

findings. See e.g, State v. Goins, 8th Dist. Cuyahoga No. 98256, 2013–Ohio–263,

¶ 11; State v. McKinley, 3rd Dist. Van Wert No. 15-12-07, 2012-Ohio-6117,¶ 10; 

State v. Nowlin, 5th Dist. Muskingum No. CT2012–0015, 2012–Ohio–4923, ¶ 69; 

State v. Smith, 12th Dist. Clermont No. CA–2012–01–004, 2012–Ohio–4523, ¶ 

31. 

{¶14} In support of his argument, Upkins relies upon State v. Venes, 8th 

Dist. Cuyahoga No. 98682, 2013-Ohio-1891. Specifically, the court in Venes

stated the following regarding the trial court’s duty to make the required statutory 

findings under R.C. 2929.14(C)(4): 

By imposing a requirement that the trial judge make specific 

findings before ordering sentences to be served consecutively, 
Case No. 17-13-02 

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the General Assembly toughened the standard for consecutive 

sentences. However, the revived consecutive sentencing statute 

codified in R.C. 2929.14(C)(4) does not place a heavy burden on 

a trial judge. Indeed, it is arguably easier to impose consecutive 

sentences today than it was under former R.C. 2929.14(E)(4) 

because the revived version did away with the requirement that 

the court justify its findings by giving reasons for making those 

findings. 

Because the statute so clearly requires specific findings for the 

imposition of consecutive sentences, those findings must be 

entered at the time the court orders sentences to be served 

consecutively. What we mean by this is that regardless of what 

the trial judge might say during sentencing regarding the 

purposes and goals of criminal sentencing, compliance with R.C. 

2929.14(C)(4) requires separate and distinct findings in addition 

to any findings relating to purposes and goals of criminal 

sentencing. Too often, we have been called to examine words or 

phrases scattered throughout a sentencing transcript and piece 

them together to decide whether the court made the required 

findings. This case is a good example: the state referenced 

“findings” on pages 64, 76, 78, 80, and 83 of the transcript in 

support of consecutive sentences. This alone is proof that the 

court did not make separate and distinct findings on the record 

relative to the imposition of consecutive sentences. If the word 

“findings” is to have any meaning at all, it means nothing less 

than the court must “engage[ ] in the required analysis and 

select [ ] the appropriate statutory criteria” before ordering 

sentences to be served consecutively. Only then will the 

imposition of consecutive sentences not be contrary to law. 

(Id. at ¶ ¶ 16-17) (Internal citations omitted). 

{¶15} Contrary to the scenario in Venes, the trial court in this case did make 

separate and distinct findings by using the precise language chosen by the 

legislature in R.C. 2929.14(C)(4). Moreover, nowhere in Venes did the court state 
Case No. 17-13-02 

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that reciting the statutory language to make the required findings was insufficient 

to comply with the statute. 

{¶16} Notably, in a subsequent case before the same court, the appellant 

tried to make an argument similar to Upkins’ by contending that the trial court’s 

findings under R.C. 2929.14(C)(4) were insufficient because “the sentencing 

transcript shows the court made no meaningful analysis of those findings.” State 

v. Wright, 8th Dist. Cuyahoga No. 98901, 2013-Ohio-3132, ¶ 8. In response, the 

Eighth District stated that the “[appellant’s] argument misinterprets the 

requirements placed on the trial court under R.C. 2929.14(C)(4) for consecutive 

sentencing purposes.” Id. The court cited Venes and held that “because the record 

reflects that the trial court made the findings under R.C. 2929.14(C)(4), its duty 

for imposing consecutive sentences was fulfilled.” Id. at ¶ 9. Accordingly, we 

also conclude that the trial court in this case fulfilled its duty under R.C. 

2929.14(C)(4) when it made the findings by reciting the relevant statutory 

language. Therefore, we find no merit in Upkins’ argument that the trial court was 

required to engage in a separate analysis on the record to justify its findings. 

{¶17} Upkins also argues that the trial court’s imposition of consecutive 

sentences is inconsistent with the purposes and principles of felony sentencing and 

is not supported by the record. 
Case No. 17-13-02 

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{¶18} In sentencing an offender, a trial court must consider R.C. 2929.11 

and 2929.12. State v. Pence, 3d Dist. Auglaize No. 2–11–18, 2012–Ohio–1794, ¶ 

9. The purposes and principles for felony sentencing provided in R.C. 2929.11 are: 

[T]o protect the public from future crimes by the offender and 

others and to punish the offender, and shall be commensurate 

with and not demeaning to the seriousness of the offender’s 

conduct and its impact upon the victim, and consistent with 

sentences imposed for similar crimes committed by similar 

offenders. 

State v. Hites, 3d Dist. Hardin No. 6–11–07, 2012–Ohio–1892, ¶ 8. 

{¶19} Section 2929.12(B) of the Revised Code further requires the 

sentencing court to consider factors that indicate the offender’s conduct is more or 

less serious than conduct that normally constitutes the offense and factors that 

indicate the offender is likely or not likely to commit future offenses. State v. 

Billeg, 3d Dist. Wyandot No. 16–12–03, 2013–Ohio–219, ¶ 22. 

{¶20} Prior to imposing consecutive sentences, the trial court at the 

sentencing hearing specifically stated that it “considered the purposes and 

principles of sentencing under R.C. 2929.11 and the seriousness and the 

recidivism factors under R.C. 2929.12 as well as the consecutive sentencing 

factors under R.C. 2929.14(C)(4).” (Tr. at 9). The trial court then discussed 

Upkins’ criminal history on the record. In particular, the trial court noted that 

Upkins’ criminal record stretches back as far as 1988 and involved numerous 
Case No. 17-13-02 

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misdemeanor and felony charges, including burglary, grand larceny, trafficking in 

drugs, preparation for sale, and possession of cocaine. 

{¶21} The trial court further noted that in the past Upkins has been placed 

on probation or community control and has been sent to WORTH, a drug 

treatment and rehabilitation center. However, the trial court observed that Upkins’ 

record showed that he violated the terms and conditions of his community control 

and was sent to prison. Finally, the trial court also noted that the offenses for 

which Upkins was now being sentenced occurred as a result of four separate 

incidents, which demonstrated that Upkins has engaged in a continuing course of 

conduct. Notably, all of the trial court’s observations are supported by the record. 

{¶22} In addition, it was also apparent from his statements at sentencing 

that Upkins lacks any accountability for his actions comprising the current offense. 

Moreover, his failure to show any remorse does not support his contentions on 

appeal that he is unlikely to recidivate and that his continuing course of conduct 

does not pose a danger to the public. This combined with the fact that Upkins had 

demonstrated that he is not amenable to community control all support the trial 

court’s conclusion that consecutive sentences are warranted in this case. 

{¶23} For these reasons, we conclude that the trial court properly imposed 

consecutive sentences by making the required statutory findings under R.C. 

2929.14(C)(4), that the trial court’s imposition of consecutive sentences is 
Case No. 17-13-02 

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consistent with the purposes and principles of felony sentencing as expressed in 

R.C. 2929.11 and 2929.12, and that the sentence is supported by the record. 

Accordingly, Upkins’ assignment of error is overruled and the judgment and 

sentence of the Shelby County Court of Common Pleas is affirmed. 

 Judgment Affirmed 

WILLAMOWSKI and ROGERS, J.J., concur. 

/jlr