[Cite as State v. Haynes, 2022-Ohio-4464.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- vs -

ROBERT C. HAYNES,

Defendant-Appellant.

CASE NO. 2022-L-009

Criminal Appeal from the

Court of Common Pleas

Trial Court No. 2021 CR 001319

O P I N I O N

Decided: December 12, 2022

Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, 

Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 

44077 (For Plaintiff-Appellee).

Daniel J. Williams and Jerome Emoff, Dworken & Bernstein Co., LPA, 60 South Park 

Place, Painesville, OH 44077 (For Defendant-Appellant). 

MARY JANE TRAPP, J.

{¶1} Appellant, Robert C. Haynes (“Mr. Haynes”), appeals the judgment of the 

Lake County Court of Common Pleas sentencing him to an aggregate prison term of 144 

months (i.e., 12 years) following his guilty pleas to four counts of unlawful sexual conduct 

with a minor and one count of attempted sexual battery.

{¶2} Mr. Haynes presents three assignments of error, contending that (1) his 

“sentence” is contrary to law; (2) the trial court erred in imposing consecutive sentences; 

and (3) the statute that governs appellate review of felony sentences, i.e., R.C. 

2953.08(G)(2), is unconstitutional as applied to him.
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{¶3} After a careful review of the record and pertinent law, we find as follows:

{¶4} (1) Mr. Haynes has not clearly and convincingly established that his 

“sentence” is contrary to law. Mr. Haynes’ argument relates to the length of his aggregate

sentence, while R.C. 2929.11 and 2929.12 both apply only to individual sentences. Even 

if Mr. Haynes had properly challenged his individual sentences, there would be no basis 

to conclude that they are contrary to law.

{¶5} (2) Mr. Haynes has not established that the trial court erred in imposing 

consecutive sentences. The trial court expressly made the required statutory findings at 

the sentencing hearing and incorporated them into its sentencing entry; thus, there is no 

basis to conclude that the consecutive sentences are contrary to law. In addition, the 

premise underlying Mr. Haynes’ “support-in-the-record” argument is legally flawed. 

{¶6} (3) Mr. Haynes did not present an existing set of facts under which the 

statute could be found unconstitutional. This court’s application of R.C. 2953.08(G)(2), 

as recently interpreted by the Supreme Court of Ohio, is not dispositive of Mr. Haynes’ 

assignments of error.

{¶7} Thus, we affirm the judgment of the Lake County Court of Common Pleas.

Substantive and Procedural History

{¶8} In November 2021, the state filed an information charging Mr. Haynes with 

four counts of unlawful sexual conduct with a minor, third-degree felonies, in violation of 

R.C. 2907.04(A) (counts 1 through 4), and one count of attempted sexual battery, a fourthdegree felony, in violation of R.C. 2923.02 (count 5). The minor victim was 15 years old 

at the time of the alleged offenses. 
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{¶9} Mr. Haynes waived his right to a grand jury and pleaded guilty to all counts 

in the information. The trial court held a plea hearing and engaged in a colloquy with Mr. 

Haynes pursuant to Crim.R. 11. As a factual basis, the state indicated as follows:

{¶10} “[Mr. Haynes] met the victim * * * as a result of a voluntary coaching position 

he had at a private gym. He was a Muay Thai coach and the minor female victim took 

his class. As a result of that initial encounter and her taking that class they became friends 

along with other folks in the class and that friendship eventually evolved into him giving 

her rides, picking her up, things like that, going for coffee, going to movies in groups and 

ultimately it turned into a situation where they began spending time alone.

{¶11} “During that time alone[,] [Mr. Haynes] would supply alcohol to the minor 

female victim and ultimately their relationship turned into an intimate relationship. 

{¶12} “And the evidence the state would have brought forth demonstrating that 

intimate relationship is contained in some very detailed Facebook communication 

between [Mr. Haynes] and the victim. And what would have been the testimony of the 

minor female victim in this situation and those pieces of evidence * * * would have 

demonstrated that there were various forms of sexual conduct that took place between 

the victim and the defendant, a digital penetration, oral sex performed on the victim, oral 

sex performed by the victim on [Mr. Haynes] and in one instance intercourse. That 

particular evidence is what is offered to support Counts 1 through 4, the unlawful sexual 

conduct with a minor * * * based on the various forms of sexual activity that have just been 

outlined.

{¶13} “With respect to Count 5, the attempted sexual battery, this was the last 

occasion that the relationship between [Mr. Haynes] and the minor female victim occurred 

on an intimate basis. [Mr. Haynes] attempted sexual conduct, the victim objected, there 
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was no consent. She alleges that she attempted to vocalize her objection and that was 

stopped. She had been supplied with alcohol and was impaired so [Mr. Haynes] didn’t 

want to immediately return her to her home until she was less upset, calmed down and 

for lack of a better term sobered up at that time. * * *

{¶14} “As I outlined in the charge[,] [Mr. Haynes] was ten or more years older than 

the minor victim, I believe he was 26 years of age at the time that these offenses took 

place.”

{¶15} Mr. Haynes agreed that the state’s factual basis was accurate.

{¶16} The trial court accepted Mr. Haynes’ guilty pleas and found him guilty. It 

ordered a presentence investigation (“PSI”) report, a psychological evaluation, and a 

victim impact statement and set the matter for sentencing.

{¶17} In January 2022, the trial court held a sentencing hearing. Mr. Haynes 

addressed the court, and his mother and two friends spoke regarding his good character 

and remorse. The victim spoke about the effects Mr. Haynes’ conduct had on her life, 

which included a diagnosis of PTSD and extensive therapy. Counsel for Mr. Haynes and 

the state also presented arguments regarding the statutory sentencing factors.

{¶18} Prior to announcing sentence, the trial court stated that it considered the 

PSI report, the psychological evaluations, the letters in support of Mr. Haynes, Mr. 

Haynes’ letter, the victim impact statement, all statements made in court, as well as “all 

aspects of 2929.11, 2929.12, 2929.13, and 2929.14.” The trial court also made extensive 

findings on the record.

{¶19} The trial court sentenced Mr. Haynes to prison terms of 48 months on each 

of counts 1 through 4 and 12 months on count 5. It ordered Mr. Haynes to serve counts 
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1 through 3 consecutively to one another and counts 4 and 5 concurrently to count 3, for 

an aggregate prison term of 144 months (i.e., 12 years).

{¶20} In ordering consecutive sentences, the court found, “consecutive sentences 

are necessary to protect the public from future crime by you and to punish the offender”; 

“consecutive sentences are not disproportionate to the seriousness of your conduct and 

the danger that you pose”; and “at least two of these offenses were committed as part of 

one or more courses of conduct and the harm caused to [the victim] by at least two of 

these offenses committed was so great or unusual that no single prison term for any of 

these offenses committed as part of this course of conduct adequately reflects the 

seriousness of the conduct.”

{¶21} The trial court filed a judgment entry memorializing Mr. Haynes’ sentences, 

which it subsequently amended.

{¶22} Mr. Haynes appealed and raises the following three assignments of error:

{¶23} “[1.] Clear And Convincing Evidence Affirmatively Demonstrates That The 

Trial Court Failed To Consider The Principles And Purposes Of Felony Sentencing 

Mandated In R.C. 2929.11 And The Sentencing Factors Found In R.C. 2929.12 And/Or 

That Appellant’s Sentence Was Not Reasonably Calculated To Achieve The Principles 

And Purposes Of Sentencing And/Or That The Trial Court’s Sentence Was Otherwise 

Contrary To Law.

{¶24} “[2.] The Trial Court Erred In Imposing Consecutive Sentences.

{¶25} “[3.] R.C. 2953.08(G)(2) Is Unconstitutional As Applied to Appellant.”

Individual Felony Sentences

{¶26} In his first assignment of error, Mr. Haynes contends that his “sentence” is 

contrary to law. Specifically, Mr. Haynes contends that the trial court failed to consider 
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the purposes and principles of felony sentencing; that his 12-year prison sentence was 

not “consistent with sentences imposed for similar crimes committed by similar offenders”; 

that the public does not require 12 years of protection from him; and that it is unlikely that 

he will be rehabilitated by serving a 12-year prison sentence.

{¶27} The standard of review for felony-sentencing appeals is governed by R.C. 

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, 

¶ 21. That provision states:

{¶28} “The court hearing an appeal under division (A), (B), or (C) of this section 

shall review the record, including the findings underlying the sentence or modification 

given by the sentencing court. 

{¶29} “The appellate court may increase, reduce, or otherwise modify a sentence 

that is appealed under this section or may vacate the sentence and remand the matter to 

the sentencing court for resentencing. The appellate court’s standard of review is not 

whether the sentencing court abused its discretion. The appellate court may take any 

action authorized by this division if it clearly and convincingly finds either of the following:

{¶30} “(a) That the record does not support the sentencing court’s findings under 

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or 

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

{¶31} “(b) That the sentence is otherwise contrary to law.” 

{¶32} “‘Clear and convincing evidence is that measure or degree of proof which is 

more than a mere “preponderance of the evidence,” but not to the extent of such certainty 

as is required “beyond a reasonable doubt” in criminal cases, and which will produce in 

the mind of the trier of facts a firm belief or conviction as to the facts sought to be 
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established.’” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 

118 (1954), paragraph three of the syllabus.

{¶33} We conclude that Mr. Haynes has not clearly and convincingly established 

that his “sentence” is contrary to law. 

{¶34} R.C. 2929.11 and 2929.12 apply as a general judicial guide for every 

sentencing. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 36, 

abrogated on other grounds by Oregon v. Ice, 555 U.S. 160, 172 L.Ed.2d 517, 129 S.Ct. 

711 (2009). R.C. 2929.11(A) provides that the trial court “shall be guided by the overriding 

purposes of felony sentencing,” which are “[1] to protect the public from future crime by 

the offender and others, [2] to punish the offender, and [3] to promote the effective 

rehabilitation of the offender using the minimum sanctions that the court determines 

accomplish those purposes without imposing an unnecessary burden on state or local 

government resources.” To “achieve those purposes,” the trial court “shall consider the 

need for incapacitating the offender, deterring the offender and others from future crime, 

rehabilitating the offender, and making restitution to the victim of the offense, the public, 

or both.” Id. A felony sentence “shall be reasonably calculated to achieve the three 

overriding purposes of felony sentencing * * *, 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.” R.C. 

2929.11(B).

{¶35} R.C. 2929.12(A) grants the sentencing court “discretion to determine the 

most effective way to comply with the purposes and principles of sentencing * * *.” In 

exercising that discretion, the court shall consider, along with any other “relevant” factors, 

the seriousness factors in R.C. 2929.12(B) and (C) and the recidivism factors in R.C. 
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2929.12(D) and (E). Foster at ¶ 37. There is no mandate for judicial fact-finding in the 

general guidance statutes; rather the court is merely to “consider” the statutory factors. 

Id. at ¶ 42.

{¶36} Mr. Haynes’ argument relates to his aggregate prison sentence of 12 years, 

which resulted from the trial court’s decision to run Mr. Haynes’ prison sentences on 

counts 1 through 3 consecutively. The Supreme Court of Ohio has held that “R.C. 

2929.11 and 2929.12 both clearly apply only to individual sentences. R.C. 2929.11 

speaks in terms of a court’s imposing ‘a sentence’ for ‘a felony.’ Likewise, R.C. 

2929.12(A) speaks in terms of a court’s imposing ‘a sentence’ for ‘a felony.’” (Emphasis 

sic.) State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 17; see 

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph one of 

the syllabus (“A sentence is the sanction or combination of sanctions imposed for each 

separate, individual offense.”) For that reason alone, Mr. Haynes’ first assignment of 

error lacks merit.

{¶37} Even if Mr. Haynes had properly challenged his individual sentences, there 

would be no basis to conclude that the trial court did not consider the purposes and 

principles of felony sentencing. A sentencing court fulfills its duty when it states that it 

has considered the factors under R.C. 2929.11 and R.C. 2929.12. State v. DeLuca, 11th 

Dist. Lake No. 2020-L-089, 2021-Ohio-1007, ¶ 18. Here, the trial court expressly stated 

that it “considered * * * the principles and purposes of sentencing under R.C. 2929.11” 

and “balanced the seriousness and recidivism factors under R.C. 2929.12.”

{¶38} Further, to the extent Mr. Haynes sought to challenge the trial court’s 

application of R.C. 2929.11 and 2929.12, it would be outside the scope of our review. 

The Supreme Court of Ohio has held that R.C. 2953.08(G)(2)(b) “does not provide a basis 
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for an appellate court to modify or vacate a sentence based on its view that the sentence 

is not supported by the record under R.C. 2929.11 and 2929.12.” State v. Jones, 163 

Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. According to the court, “[n]othing 

in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in 

the record and substitute its judgment for that of the trial court concerning the sentence 

that best reflects compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42. As we have 

observed, “the competing factors in R.C. 2929.11 and 2929.12 are for the sentencing 

court to weigh, not the court of appeals.” State v. Stanley, 11th Dist. Trumbull No. 2020-

T-0039, 2021-Ohio-549, ¶ 12.

{¶39} Although Mr. Haynes asks us to find that Jones was wrongly decided, we 

have no authority to do so. “‘As an intermediate appellate court, we are bound to follow 

precedent set by the Supreme Court of Ohio[,] and we cannot issue a decision in conflict 

with a decision of the Supreme Court that has not been reversed or overruled.’” State v. 

Bruce, 10th Dist. Franklin No. 21AP-376, 2022-Ohio-909, ¶ 40, appeal not accepted, 167 

Ohio St.3d 1527, 2022-Ohio-3322, 195 N.E.3d 163, quoting State v. Tatom, 10th Dist. 

Franklin No. 17AP-758, 2018-Ohio-5143, ¶ 24. Rather, the authority to examine previous 

decisions is vested in the Supreme Court itself. See Westfield Ins. Co. v. Galatis, 100 

Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 43 (“[A] supreme court not only has 

the right, but is entrusted with the duty to examine its former decisions and, when 

reconciliation is impossible, to discard its former errors.”).

{¶40} Mr. Haynes’ first assignment of error is without merit.

Consecutive Sentences

{¶41} In his second assignment of error, Mr. Haynes contends that the trial court 

erred in imposing consecutive sentences. 
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{¶42} An appellate court reviews the trial court’s imposition of consecutive 

sentences pursuant to R.C. 2953.08(G)(2), which permits us to modify or vacate 

consecutive sentences if we clearly and convincingly find that (a) the record does not 

support the trial court’s findings under R.C. 2929.14(C)(4) or (b) the sentence is otherwise 

contrary to law.

{¶43} R.C. 2929.41 creates a statutory presumption in favor of concurrent 

sentences, providing, in pertinent part, that “[e]xcept as provided in * * * division (C) of 

section 2929.14, * * * a prison term * * * or sentence of imprisonment shall be served 

concurrently with any other prison term * * * or sentence of imprisonment imposed by a 

court of this state * * *.” R.C. 2929.41(A). R.C. 2929.14(C)(4), in turn, provides that “[i]f 

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 it finds that (1) 

“the consecutive service is necessary to protect the public from future crime or to punish 

the offender”; (2) “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) any of 

the following: 

{¶44} “(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.

{¶45} “(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 
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committed as part of any of the courses of conduct adequately reflects the seriousness 

of the offender’s conduct.

{¶46} “(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime by the 

offender.”

{¶47} The Supreme Court of Ohio has held that “[i]n order to impose consecutive 

terms of imprisonment, a trial court is required to make the findings mandated by R.C. 

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing 

entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell, 

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The trial court is not required 

“to give a talismanic incantation of the words of the statute, provided that the necessary 

findings can be found in the record and are incorporated into the sentencing entry.” Id. 

Otherwise, “the imposition of consecutive sentences * * * is contrary to law.” Id. 

{¶48} In addition, “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. In other 

words, “If the court has properly made the required findings in order to impose 

consecutive sentences, we must affirm those sentences unless we ‘clearly and 

convincingly’ find ‘[t]hat the record does not support the court’s findings[.]’” State v. 

Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 19 (8th Dist.), quoting R.C. 2953.08(G)(2)(a).

{¶49} Here, the trial court expressly made the required statutory findings at the 

sentencing hearing and incorporated them into its sentencing entry. Thus, there is no 

basis to conclude that the trial court’s imposition of consecutive sentences is contrary to 

law. 
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{¶50} In addition, the premise underlying Mr. Haynes’ “support-in-the-record” 

argument is legally flawed. According to Mr. Haynes, the trial court “emphasized” nine 

particular facts in its “2929.14(C)(4) analysis,” and those facts do not support a “12-year 

consecutive sentence.” However, there is no indication that those particular facts formed 

the basis of the trial court’s consecutive sentence findings, and a review of the hearing 

transcript demonstrates that the trial court discussed those facts in the context of 

considering the principles and purposes of felony sentencing. Further, Mr. Haynes’ 

argument misunderstands the proper standard of review. The relevant inquiry under R.C. 

2953.08(G)(2)(a) is not whether the record supports Mr. Haynes’ aggregate prison 

sentence but whether there is evidence in the record supporting the trial court’s 

consecutive sentence findings.

{¶51} Accordingly, Mr. Haynes has not established that the trial court erred in 

imposing consecutive sentences.

{¶52} Mr. Haynes’ second assignment of error is without merit. 

Constitutional Challenge

{¶53} In his third and final assignment of error, Mr. Haynes contends that R.C. 

2953.08(G)(2), i.e., the statute that governs appellate review of felony sentences, is 

unconstitutional as applied to him. According to Mr. Haynes, the statute, as interpreted 

by the Supreme Court of Ohio in Jones, fails to provide him with a right of review of a final 

order or judgment from a trial court in violation of Article IV, Section 3(B)(2) of the Ohio 

Constitution. He submits that unless an appellate court “can review a trial court’s 

consideration of the sentencing mandates in R.C. 2929.11 and R.C. 2929.12,” he is 

denied a “complete determination” of his assignments of error on appeal. 
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{¶54} Mr. Haynes acknowledges that he did not raise this constitutional challenge 

at sentencing. “Failure to raise at the trial court level the issue of the constitutionality of 

a statute or its application, which issue is apparent at the time of trial, constitutes a waiver 

of such issue and a deviation from this state’s orderly procedure, and therefore need not 

be heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 

(1986), syllabus. The waiver doctrine in Awan, however, is discretionary. In re M.D., 38 

Ohio St.3d 149 (1988), syllabus (“Even where waiver is clear, this court reserves the right 

to consider constitutional challenges to the application of statutes in specific cases of 

plain error or where the rights and interests involved may warrant it.”)

{¶55} Even if a plain error analysis was warranted in this case, we find it 

unnecessary to reach the merits of Mr. Haynes’ constitutional argument. State v. Talty, 

103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9 (courts should avoid 

answering constitutional questions unless it is absolutely necessary). In an as-applied 

constitutional challenge, the challenging party “bears the burden of presenting clear and 

convincing evidence of a presently existing set of facts that make the statute[] 

unconstitutional and void when applied to those facts.” (Emphasis added.) Harrold v. 

Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 38. “A person to whom 

a statute may be constitutionally applied may not be heard to challenge the statute on the 

ground that it may conceivably be applied unconstitutionally to others, in other situations 

not before the court.” (Emphasis added.) State v. Taubman, 78 Ohio App.3d 834, 845, 

606 N.E.2d 962 (2d Dist.1992).

{¶56} As explained above, Mr. Haynes’ first assignment of error challenges the 

length of his aggregate sentence, while R.C. 2929.11 and 2929.12 apply only to individual 

sentences. Mr. Haynes’ second assignment of error challenges the trial court’s imposition 
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of consecutive sentences, which does not involve R.C. 2929.11 or 2929.12. Thus, this 

court’s application of R.C. 2953.08(G)(2), as interpreted in Jones, is not dispositive of Mr. 

Haynes’ assignments of error. Accordingly, Mr. Haynes did not present an existing set of 

facts under which the statute could be found unconstitutional.

{¶57} Mr. Haynes’ third assignment of error is without merit.

{¶58} For the foregoing reasons, the judgment of the Lake County Court of 

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J., concurs,

JOHN J. EKLUND, P.J., concurs with a Concurring Opinion.

____________________

JOHN J. EKLUND, P.J., concurs with a Concurring Opinion.

{¶59} For the following reasons, I concur in the judgement. 

{¶60} Within his first assignment of error, Haynes makes three arguments: (1) that 

the trial court failed to consider the purposes and principals of felony sentencing set forth 

in R.C. 2929.11 and the sentencing considerations in R.C. 2929.12; (2) that his sentence 

is not reasonably calculated to achieve his effective rehabilitation; and (3) that his 

sentence is otherwise contrary to law because his sentence is not consistent with 

sentences imposed for similar crimes committed by similar offenders. The majority 

opinion mischaracterizes the second and ignores the third.

{¶61} The majority addresses Haynes’ argument that his sentence is not 

reasonably calculated to promote his effective rehabilitation by stating that a “sentencing 

court fulfills its duty when it states that it has considered the factors under R.C. 2929.11 
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and R.C. 2929.12.” State v. DeLuca, 11th Dist. Lake No. 2020-L-089, 2021-Ohio-1007, 

¶ 18. That principle bears upon Appellant’s first argument. It has nothing to do with his 

second. The “duty” to which DeLuca and its ilk refer is for the sentencing court to “be 

guided by” the purposes of felony sentencing (R.C. 2929.11(A)) and to “consider” certain 

factors (R.C. 2929.12 (A) – (F)). However, the “duty” set forth in R.C. 2929.11(B) (which 

is what Appellant invokes) is for the sentencing court, having been “guided” and after 

“considering,” to impose a sentence that is (“shall be”) “reasonably calculated to achieve” 

the purposes of felony sentencing. Properly framed, we would review the record (as R.C. 

2953.08(F) and (G) command) and analyze Appellant’s second argument to determine 

whether his sentence is reasonably calculated “to promote his effective rehabilitation,” 

and if not whether it is “clearly and convincingly” contrary to law under R.C. 

2953.08(G)(2)(b). Nevertheless, I agree with the majority’s judgment because, on the 

record before us, I cannot find clearly and convincingly that Haynes’ sentence was not 

reasonably calculated to promote his effective rehabilitation. 

{¶62} I next address Haynes’ third argument within his first assignment of error: 

That his sentence is not consistent with sentences imposed for similar crimes committed 

by similar offenders. R.C. 2929.11(B) mandates that felony sentences shall be 

“consistent with sentences imposed for similar crimes committed by similar offenders.” 

The majority gives less than short shrift to this argument; they ignore it.

{¶63} I acknowledge that this court has long held that “sentencing consistency is 

not derived from the trial court’s comparison of the current case to prior sentences for 

similar offenders and similar offenses,” but, rather, it is the “proper application of the 

statutory sentencing guidelines that ensures consistency.” (Citations omitted.) State v. 

Phifer, 11th Dist. Trumbull No. 2020-T-0010, 2020-Ohio-4694, ¶ 35. However, if 
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“consistency” is simply a matter of following the dictates of R.C. 2929.12, 2929.13, and 

2929.14, the “consistency” mandate in R.C. 2929.11(B) would be entirely superfluous. 

No wonder, then, that R.C. 2929.11(B) makes no reference to R.C 2929.12, 2929.13, or 

2929.14.

{¶64} Other appellate districts have held that reviewing the record to ensure 

compliance with the statutory sentencing guidelines is not the only avenue to review 

whether a sentence is “consistent.” The Tenth, First, and Fifth District Appellate Courts 

have held alternatively that:

Consistency * * * does not necessarily mean uniformity. Instead, 

consistency aims at similar sentences. Accordingly, consistency accepts 

divergence within a range of sentences and takes into consideration a trial 

court’s discretion to weigh relevant statutory factors [as provided in R.C. 

2929.12(A)]. The task of an appellate court is to examine the available data, 

not to determine if the trial court has imposed a sentence that is in lockstep 

with others, but to determine whether the sentence is so unusual as to be 

outside the mainstream of local judicial practice. Although offenses may be 

similar, distinguishing factors may justify dissimilar sentences.

State v. Battle, 10th Dist. Franklin. No. 06AP–863, 2007-Ohio-1845, ¶ 24, quoting State 

v. King, 5th Dist. Muskingum No. CT06–0020, 2006-Ohio-6566, ¶ 23, quoting State v. 

Ryan, 1st Dist. Hamilton App. No. C–020283, 2003-Ohio-1188, ¶ 10. 

{¶65} I would take this opportunity to have this court adopt that approach as an 

additional analytic tool. Whether under that approach or under our current precedent, I 

believe we should address Appellant’s contention.

{¶66} Here, Haynes plead guilty to five offenses. Four were felonies of the thirddegree and one was a fourth-degree felony. It is not so unusual as to be outside the 

mainstream of local judicial practice for an offender to be sentenced to 12 years 

imprisonment after pleading guilty to five sexual offenses with a minor. I would not have 
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found clearly and convincingly that Haynes’ sentence is contrary to law as being 

inconsistent with sentences imposed for similar crimes committed by similar offenders.

{¶67} Lastly, I would find that this court should fully address Haynes’ third 

assignment of error, in which he contends that “R.C. 2953.08(G)(2) Is Unconstitutional 

As Applied To Appellant.” Justice Fischer’s concurring opinion in Jones provides a more 

expansive and apt discussion of this issue and states that:

There is also no reason to believe that a trial court’s 

consideration under R.C. 2929.11 and 2929.12 is wholly 

unreviewable. First, although, as the majority opinion 

explains, R.C. 2929.11 and 2929.12 do not require a trial court 

to make any specific findings on the record, those statutes are 

not optional. Both statutes use the term “shall” multiple times 

in relation to other matters. For example, R.C. 2929.11(A) and 

2929.12(A) through (F) set forth matters that a sentencing 

court “shall consider,” and R.C. 2929.11(A) provides that the 

trial court “shall be guided by” the three overriding purposes 

of felony sentencing. R.C. 2929.11(B) further states that the 

sentence imposed by the trial court “shall” meet certain 

specific criteria. * * * Second, R.C. 2953.08(G)(2) expressly 

requires an appellate court to “review the record, including the 

findings underlying the sentence.” The breadth of this 

statutory provision necessarily means that if a trial court does 

make findings under R.C. 2929.11 and 2929.12, the appellate 

court may review those findings for certain limited purposes. 

Third, R.C. 2953.08(G)(2)(b) provides that an appellate court 

can modify or vacate a sentence on the ground that it is 

“otherwise contrary to law.” This court’s holding today 

specifies what an appellate court may not do under this 

provision: it may not conduct an independent review of 

whether the record supports the sentence and substitute its 

own judgment regarding the appropriate sentence.

{¶68} State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 

N.E.3d 649 ¶ 46 (Fischer J., concurring).

{¶69} I find Justice Fisher’s analysis compelling, and would hold that R.C. 

2953.08(G)(2) is constitutional as applied to Haynes because Jones is limited to the 

holding that a court may not conduct an independent review of whether the record 
18

Case No. 2022-L-009

supports the sentence and substitute its own judgment regarding the appropriate 

sentence, but does not render the results of the trial court’s consideration wholly 

unreviewable. Id.

{¶70} I otherwise agree with the majority’s analysis, and I concur in the judgment.