[Cite as State v. Jones , 2020-Ohio-149.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

NOAH JONES, Appellant. :

:

:

:

:

: CASE NO. CA2019-05-087

O P I N I O N

1/21/2020

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-11-2080

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Rodriguez & Porter, Ltd., Paul W. Shonk, 5103 Pleasant Avenue, Fairfield, Ohio 45014, for appellant

PIPER, J. {¶ 1} Appellant, Noah Jones, appeals his sentence in the Butler Count y Court of Common Pleas after pleading guilty to two counts of felonious a ssault and their accompanying firearm specifications. {¶ 2} Jones, who was upset about a possible drug-related theft of $90 0, spent the day watching the home of the man he believed stole from him. A fter the occupants returnedButler CA2019-05-087

- 2 - to the home, Jones drove by and fired a shot into the house. H e then drove around again, firing another shot into the home. This second bullet struck a two-year-old child in the face and another child in her leg. Both children survived, but suff ered ongoing physical and psychological repercussions from being shot. {¶ 3} Jones was indicted on multiple counts of felonious assault, imp roperly discharging a firearm into a habitation, and several accompanyi ng firearm specifications. Jones agreed to plead guilty to two counts of felonious assault with one-year and five-year firearm specificati ons, and the remaining charges and specifica tions were dismissed. During the plea hearing, the trial court informed Jones of his possibl e maximum sentence. {¶ 4} The trial court later sentenced Jones to seven years on the fir st count of felonious assault and five years on the second count. The tria l court ordered the sentences to run consecutively and also im posed the two firearm specifica tions for an aggregate sentence of 18 years. Jones now appeals his sentence, raising the following assignments of error, which we will address together. {¶ 5} Assignment of Error No. 1: {¶ 6} THE TRIAL COURT ERRED BY IMPOSING A CONSECUTIVE SENTENCE UNDER R.C. § 2914(C)(4)(b) BECAUSE IT WAS BASED IN CENTRAL PART ON

CONDUCT UNDERLYING A D ISMISSED CHARGE. {¶ 7} Assignment of Error No. 2: {¶ 8} THE TRIAL COURT ERRED BY IMPOSING A CONSECUTIVE SENTENCE UNDER R.C. § 2914(C)(4)(c) BECAUSE THE FINDING WAS NOT SUPPORTE D BY THE RECORD. {¶ 9} Jones challenges his sentence within his two assignments of err or. {¶ 10} An appellate court reviews the imposed sentence according to R. C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum , 146 Ohio St.3d 516,Butler CA2019-05-087

- 3 - 2016-Ohio-1002, ¶ 1. R.C. 2953.08(G)(2) provides that an appel late court can modify or vacate a sentence only if the appellate court finds by clear an d convincing evidence that the record does not support the trial court's findings under releva nt statutes or that the sentence is otherwise contrary to law. {¶ 11} A sentence is not clearly and convincingly contrary to law wher e the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrel ease control, and sentences th e defendant within the permissible statutory range." State v. Ahlers , 12th Dist. Butler No. CA2015-06-100, 2016- Ohio-2890, ¶ 8. Thus, this court may increase, reduce, or othe rwise modify a sentence only when it clearly and convincingly finds that the sentence is eit her contrary to law or unsupported by the record. Marcum at ¶ 7. {¶ 12} A consecutive sentence is contrary to law where the trial court fails to make the consecutive sentencing findings required by R.C. 2929.14(C)(4). State v. Marshall , 12th Dist. Warren No. CA2013-05-042, 2013-Ohio-5092, ¶ 8. Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step analysis and make certain fin dings before imposing

consecutive sentences. State v. Smith , 12th Dist. Clermont No. CA2014-07-054, 2015-Ohio1093, ¶ 7. Specifically, the trial court must find that (1) th e consecutive sentence 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 of fender's conduct and to the danger the offender poses to the public, and (3) one of the fol lowing applies: (a) The offender committed one or more of the multiple offense s 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 pa rt of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great orButler CA2019-05-087

- 4 - 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 th at consecutive sentences are nece ssary to protect the public from future crime by the offender. R.C. 2929.14(C)(4). {¶ 13} "In 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 sent encing hearing and incorporate its findings into its sentencing entry." State v. Bonnell , 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 37. While the trial court is not required to give reasons explaining these findings, it must be clear from the record that the court engag ed in the required sentencing analysis and made the requisite findings. Smith at ¶ 8. {¶ 14} The record clearly indicates that the trial court's sentence wa s within the statutory range for the enumerated felony designations, support ed by the required considerations of R.C. 2929.11 and 2929.12, and included the pr oper postrelease control notifications. Moreover, the trial court made consecutive sent ence findings at the sentencing hearing when it imposed sentence, as well as in its judgment en try of sentence. The trial court specifically found that cons ecutive sentences were necess ary to protect the public from future crime, as well as to punish Jones for his crimes. It al so found that the consecutive nature of the sentence was not disproportionate to the seriousn ess of Jones' conduct and to the danger he posed to the public. {¶ 15} The trial court also determined that Jones' crimes were committ ed as a course of conduct and that the harm was so great and unusual that a si ngle term could not adequately reflect the seriousness of Jones' conduct. While no t required to do so, the trial court made an additional finding that Jones' criminal history d emonstrated that consecutive sentences were necessary to prot ect the public from Jones' futu re crime. Given the trialButler CA2019-05-087

- 5 - court's adherence to the statutor y requirements, Jones consecut ive sentences were not contrary to law. {¶ 16} We also find that the trial court's findings in relation to the sentence were supported by the record. The record indicates that Jones drove by the victims' home and shot twice into the occupied structure because of a disagreemen t regarding $900 of drug money. With his second shot, Jones' bullet struck a two-year-o ld child in the face, and then struck another child in the leg. Both children suffered seriou s physical injury from the bullet. The younger child, who was placed in a medically-induced coma, required multiple facial surgeries and ongoing medical care. The child also suffered fr om withdrawal symptoms related to her prescription pain medication. The older child c ontinues to have problems with her knee where she was shot, including her knee popping out of the socket on occasion. The children and their family continue to live with fear and su ffer from physical and emotional scars of the shooting. {¶ 17} The court also considered that J ones watched the victims' house on the day of the shooting and waited until they returned before shooting int o the home. Despite having a day to consider his actions, Jones followed through on his inte nt to shoot into the home. Jones was aware of who lived in the home, including that multip le children could be there at any time. {¶ 18} The trial court also considered that Jones had a history of dru g addiction and committing crimes while under the influence of narcotics, inclu ding weapons and assault related misdemeanors. Jones asserts the trial court overemphas ized his criminal history given that his convictions were misdemeanors. While the trial court noted the overall minimal nature of Jones' criminal history, it also noted that the natur e of the misdemeanor offenses was "significant." We agree with the trial court because Jones ' crimes, despite their misdemeanor classifications, were associated with violence and weapons and demonstratedButler CA2019-05-087

- 6 - a pattern of Jones' violent tendencies and weapons use. As suc h, we find the trial court's findings related to sentencing are fully supported by the recor d. {¶ 19} Jones asserts that the trial court erred in determining his act ions were part of a

course of conduct because he was never convicted of the felonio us assault charge associated with his first shot into the house. However, the st atute is specific to the

defendant's conduct when committing his or her crimes and does not limit the sente ncing court to consider only the defendant's convictions. {¶ 20} The record clearly indicates, and Jones never denied, that he f irst drove by the home, shooting once into the house. He then drove by again, sh ooting once more into the home, this time, striking two children. While Jones was not co nvicted of a crime related to his first shot, the trial court was permitted to consider what Jones did on the night of the drive-by shooting and all his actions associated with the commi ssion of the crimes for which he was ultimately convicted. {¶ 21} The trial court properly considered the entire set of facts tha t led to Jones' crimes, and did so within the proper context to understand Jone s' intent and state of mind on the day of the shooting. The fact that the state dismissed cha rges related to the first shot as part of its plea negotiations did not negate the fact that Jone s shot into the home twice, and the trial court was not precluded in any manner from considerin g that fact before sentencing

Jones. {¶ 22} After reviewing the record, we find the trial court's sentence proper. As such, Jones' two assignments of error are overruled. {¶ 23} Judgment affirmed.

RINGLAND, P.J., and M. POWELL, J., concur.