[Cite as State v. Smith, 2018-Ohio-3702.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Craig R. Baldwin, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

JONATHAN Q. SMITH : Case Nos. CT2017-0062 

 : CT2017-0063 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case Nos. CR2016-0391 and 

CR2017-0022 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: September 13, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

GERALD V. ANDERSON, II ERIC J. ALLEN 

27 North Fifth Street 4605 Morse Road 

P.O. Box 189 Suite 201 

Zanesville OH 43702-0189 Gahanna, OH 43230 
Muskingum County, Case Nos. CT2017-0062 and CT2017-0063 2 

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Jonathan Q. Smith, appeals his May 16, 2017 

sentencing by the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-Appellee 

is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} On March 28, 2017, appellant pled guilty to two counts of trafficking in drugs 

in violation of R.C. 2925.03, one count of illegal manufacture of drugs in violation of R.C. 

2925.04, and one count of having weapon while under disability in violation of R.C. 

2923.13 (Case No. CR2016-0391). By entry filed May 16, 2017, the trial court sentenced 

appellant to an aggregate term of eleven years in prison as the prison terms imposed 

were ordered to be served concurrently. 

{¶ 3} Also on March 28, 2017, appellant pled guilty to one count of trafficking in 

drugs in violation of R.C. 2925.03 (Case No. CR2017-0022). By entry filed May 16, 2017, 

the trial court sentenced appellant to ten years in prison, to be served consecutively to 

the prison term imposed in Case No. CR2016-0391, for an aggregate term of twenty-one 

years in prison. 

{¶ 4} Appellant filed an appeal in each case and this matter is now before this 

court for consideration. The assignments of error are identical in each case: 

I 

{¶ 5} "THE RECORD IN THIS MATTER DOES NOT SUPPORT THE 

IMPOSITION OF CONSECUTIVE SENTENCES PURSUANT TO STATE LAW R.C. 

2929.14." 
Muskingum County, Case Nos. CT2017-0062 and CT2017-0063 3 

II 

{¶ 6} "THE IMPOSITION OF CONSECUTIVE SENTENCES VIOLATES THE 

APPELLANT'S EIGHTH AMENDMENT RIGHT AGAINST CRUEL AND UNUSUAL 

PUNISHMENT APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH 

AMENDMENT." 

{¶ 7} At the outset, we note the trial court imposed concurrent sentences in Case 

No. CR2016-0391. Therefore, Assignment of Error I does not pertain to App. No. 

CT2017-0062 and is denied. We will proceed with a review of the imposition of 

consecutive service under Case No. CR2017-0022, App. No. CT2017-0063, and the 

claim of cruel and unusual punishment as a result of the consecutive nature of the two 

cases. 

I 

{¶ 8} Appellant claims the record does not support the imposition of consecutive 

service under R.C. 2929.14. We disagree. 

{¶ 9} R.C. 2953.08 governs appeals based on felony sentencing guidelines. 

Subsection (G)(2) sets forth this court's standard of review as follows: 

(2) 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. 

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 
Muskingum County, Case Nos. CT2017-0062 and CT2017-0063 4 

appellate court's standard for 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: 

(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; 

(b) That the sentence is otherwise contrary to law. 

{¶ 10} "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 

established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph 

three of the syllabus. 

{¶ 11} R.C. 2929.14(C)(4) governs consecutive sentencing and states the 

following: 

(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 
Muskingum County, Case Nos. CT2017-0062 and CT2017-0063 5 

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. 

{¶ 12} In its May 16, 2017 entry on sentencing in Case No. CR2017-0022, the trial 

court noted that it considered the factors under R.C. 2929.11 and 2929.12, and sentenced 

appellant to ten years in prison. The trial court ordered that the ten year sentence be 

served consecutively to the sentence imposed in CR2016-0391 (aggregate eleven years), 

for a total aggregate term of twenty-one years in prison. The trial court went on to state 

the following: 
Muskingum County, Case Nos. CT2017-0062 and CT2017-0063 6 

Pursuant to ORC §2929.14(C)(4), the Court further found that the 

imposition of consecutive sentences are necessary to protect the public 

from future crime or to punish the Defendant, 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. 

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 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 Defendant's conduct. 

The Defendant's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶ 13} During the sentencing hearing held on May 15, 2017, the trial court noted 

the following (T. at 17-19): 

In 1994, you were convicted of felonious assault when you and 

another gentleman got in a fight and you ended up shooting him in the leg. 

In 2014, you were convicted in Federal Court of two counts of conspiracy to 

possess with intent to distribute cocaine, Class C felony, which carries up 

to 20 years of imprisonment and a one million dollar fine. 
Muskingum County, Case Nos. CT2017-0062 and CT2017-0063 7 

You were still on probation for that case at the time you committed 

the offenses in this case. 

* * * 

It's your history. You haven't corrected your history since then. 

{¶ 14} Upon review, we find the trial court properly considered the mandates of 

R.C. 2929.14(C)(4) and did not err in imposing consecutive sentences. 

{¶ 15} Assignment of Error I is denied. 

II 

{¶ 16} In his second assignment of error, appellant claims the imposition of 

consecutive service violates his Eighth Amendment right against cruel and unusual 

punishment. We disagree. 

{¶ 17} The Eighth Amendment to the United States Constitution states: "Excessive 

bail shall not be required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted." Accord Article I, Section 9, Ohio Constitution. The Eighth 

Amendment "prohibits not only barbaric punishments, but also sentences that are 

disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 

3001, 77 L.Ed.2d 637. It is well established that sentences do not violate the 

constitutional provisions against cruel and unusual punishment unless the sentences are 

"so disproportionate to the offense as to shock the moral sense of the community." 

McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 282 N.E.2d 46 (1972). "As a general rule, a 

sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual 

punishment." Id. Accord State v. Stevens, 5th Dist. Stark No. 2017CA00024, 2017-Ohio-
Muskingum County, Case Nos. CT2017-0062 and CT2017-0063 8 

8692, ¶ 10. In State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, 

syllabus, the Supreme Court of Ohio held: "Where none of the individual sentences 

imposed on an offender are grossly disproportionate to their respective offenses, an 

aggregate prison term resulting from consecutive imposition of those sentences does not 

constitute cruel and unusual punishment." 

{¶ 18} In both of these cases, each of appellant's individual sentences is within the 

range authorized under R.C. 2929.14. We reach the same conclusion as the Hairston 

court did at ¶ 23: "Because the individual sentences imposed by the court are within the 

range of penalties authorized by the legislature, they are not grossly disproportionate or 

shocking to a reasonable person or to the community's sense of justice and do not 

constitute cruel and unusual punishment." 

{¶ 19} Assignment of Error II is denied. 

 
Muskingum County, Case Nos. CT2017-0062 and CT2017-0063 9 

{¶ 20} The judgments of the Court of Common Pleas of Muskingum County, Ohio 

are hereby affirmed. 

By Wise, Earle, J. 

Hoffman, P.J. and 

Baldwin, J. concur. 

 

 

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