[Cite as State v. Price, 2016-Ohio-8417.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

EARL A. PRICE, 

 DEFENDANT-APPELLANT. 

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CASE NO. 15 MA 0206 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 15 CR 146 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St. 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Timothy J. Cunning 

940 Windham Court, Suite 4 

Boardman, Ohio 44512 

Attorney J. Gerald Ingram 

Attorney Desirae DiPiero 

7330 Market Street 

Youngstown, Ohio 44512 

JUDGES: 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Hon. Carol Ann Robb 

 

 

 Dated: December 23, 2016 
[Cite as State v. Price, 2016-Ohio-8417.]

DONOFRIO, P.J. 

{¶1} Defendant-appellant, Earl Price, appeals from a Mahoning County 

Common Pleas Court judgment convicting him of voluntary manslaughter with a 

firearm specification and a repeat violent offender specification and also convicting 

him of having a weapon while under a disability. 

{¶2} On February 19, 2015, a Mahoning County Grand Jury indicted 

appellant on one count of aggravated murder, a first-degree felony in violation of R.C. 

2903.01(A)(F) that included both a firearm specification and a repeat violent offender 

specification, and one count of having a weapon while under a disability, a thirddegree felony in violation of R.C. 2923.13(A)(2)(B). These charges stemmed from 

the shooting death of DeJuan Thomas. Appellant initially pleaded not guilty to the 

charges. 

{¶3} Appellant retained counsel to represent him. Appellant engaged in 

pretrial negotiations with plaintiff-appellee, the State of Ohio, but the parties did not 

reach a plea deal during that time. The matter was ultimately set for trial on July 6, 

2015. 

{¶4} A pretrial was held on July 1, 2015, in preparation of the July 6 trial 

date. On July 7, which was the day the case was ultimately called for trial, appellant 

orally motioned for the court to remove his counsel. Appellant’s counsel informed the 

court that appellant had “professional mistrust” in him. (Plea Tr. 6). Appellant told 

the court there was “pertinent evidence that needs to be further investigated that was 

overlooked” and he did not feel his counsel was “vested in my innocence right now.” 

(Plea Tr. 8). Appellant told the court he believed it was in his best interest to retain 

other counsel. (Tr. Plea Tr. 8). The court overruled appellant’s motion and was set 

to proceed with picking a jury. 

{¶5} After a further discussion with his counsel, appellant decided to accept 

the plea deal that had been previously offered by the state. Pursuant to the terms of 

the plea deal, the state reduced the aggravated murder charge to a voluntary 

manslaughter charge. This reduced the possible penalty appellant faced on that 

charge from life in prison to eleven years in prison. The firearm and repeat violent 
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offender specifications and the having a weapon while under a disability charge were 

not altered. 

{¶6} Appellant entered a guilty plea to the amended indictment. The trial 

court accepted his plea and set the matter for a sentencing hearing. The court 

sentenced appellant to eleven years on the voluntary manslaughter count, three 

years on the repeat violent offender specification, three years on the firearm 

specification, and three years on the having weapons while under a disability count. 

The court ordered appellant to serve the sentences consecutively for a total of 20 

years in prison. 

{¶7} Appellant filed a timely notice of appeal on November 13, 2015. This 

court found appellant to be indigent and appointed counsel to represent him on this 

appeal. Appointed counsel filed a brief raising one assignment of error. Appellant 

was then later able to retain counsel. Appointed counsel withdrew. Appellant’s 

retained counsel filed a supplemental brief raising two additional assignments of 

error. We will consider all three assignments of error. 

{¶8} Appellant’s first assignment of error states: 

 TRIAL COURT ERRED WHEN IT DENIED TRIAL COUNSEL’S 

MOTION TO WITHDRAW SO THAT APPELLANT COULD RETAIN 

NEW COUNSEL. 

{¶9} Appellant argues the trial court should have granted him a 

continuance so he could retain new counsel. He asserts this case had only been on 

the court’s docket for approximately three months (it was actually five months). 

Moreover, he asserts his request was for a legitimate purpose because he believed 

his counsel did not believe in his innocence. 

{¶10} A trial court's decision to deny a substitution of counsel and require a 

trial to proceed with the assigned counsel is reviewed on appeal for abuse of 

discretion. State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d 298, 1999-Ohio-250. 

Abuse of discretion connotes more than an error of law or judgment; it implies that 
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the trial court's attitude was unreasonable, arbitrary, or unconscionable. State v. 

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 

{¶11} The Sixth Amendment provides for a defendant to have the assistance 

of counsel for his or her defense. In determining whether to grant a request for 

substitute counsel, the court must balance the defendant’s right to counsel of his 

choice against the public’s interest in the prompt administration of justice. State v. 

Davis, 7th Dist. No. 05-MA-235, 2007-Ohio-7216, at ¶ 37, quoting United States v. 

Jennings, 83 F.3d 145, 148 (6th Circ. 1996). The court should deny the motion for 

new counsel if it finds the defendant made the motion simply to delay the trial, or did 

not make it in good faith. Id. 

{¶12} In this case, appellant retained his counsel. His counsel attended 

several pretrial hearings, engaged in discovery, and filed numerous pretrial motions 

including a motion to suppress, a motion in limine, and a motion for relief from 

prejudicial joinder. This process spanned five months. During the five months that 

the case was pending, appellant never indicated he was dissatisfied with his counsel. 

It was not until the morning the case was to proceed to trial that appellant moved the 

court for a continuance to secure new counsel. (Plea Tr. 6). Importantly, appellant 

had not secured new counsel at this time. 

{¶13} Appellant’s counsel stated that appellant had “professional mistrust” in 

whether he was completely on appellant’s side. (Plea Tr. 6). The court responded 

by noting this case had been set for trial for a long time, that it had nothing but the 

utmost respect for appellant’s counsel’s ability, and that it had no doubt that counsel 

had properly investigated and prepared this case for trial. (Plea Tr. 7-8). Appellant’s 

counsel stated that in preparation for trial, something came up regarding physical 

evidence having to do with the victim’s injuries. (Plea Tr. 10-11). Appellant’s counsel 

did not find it to be pertinent but he noted that another attorney had “kind of” agreed 

with appellant. (Plea Tr. 11). The trial court overruled appellant’s motion. (Tr. 12). 

{¶14} At appellant’s counsel’s request, the court took a brief recess. 

Appellant then decided to accept the state’s plea offer. Thus, the matter proceeded 
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to a change of plea hearing instead of to trial. At the change of plea hearing, the 

court asked appellant, “Are you satisfied with the legal representation and advice you 

received from your lawyer?” (Plea Tr. 16). Appellant responded, “Yes.” (Plea Tr. 

16). 

{¶15} This court previously discussed the right to counsel of one’s choice in 

situations where the defendant has appointed counsel versus when the defendant 

has retained counsel: 

An indigent defendant has a limited right to counsel of his choice, 

because the indigent defendant's options are limited by the fact that the 

court, not the indigent, ultimately controls the appointment of counsel. 

Due to the limitations on an indigent's autonomy in the selection of 

counsel, and the role the court plays in selecting counsel, when an 

indigent defendant makes a “timely and good faith motion requesting 

that appointed counsel be discharged and new counsel appointed, the 

trial court clearly has a responsibility to determine the reasons for the 

defendant's dissatisfaction with his current counsel.” Iles, supra at 

1130, quoting LaFave and Isreal, Criminal Procedure, 11.4 at 36 

(1984). The reasons for this enhanced responsibility for inquiry, 

however, do not extend to a defendant like Appellant, who has retained 

counsel: “it is clear that when an accused is financially able to retain an 

attorney, the choice of counsel to assist him rests ultimately in his 

hands and not in the hands of the State.” Wilson v. Mintzes, 761 F.2d 

275, 280 (1985). Moreover, * * * any request to change representation 

must be both timely and made in good faith, and is subject to the 

discretion of the trial court. There is simply no legal requirement that the 

trial court engage in any specific inquiry as to the reason a defendant 

wishes to seek other retained counsel. 

State v. Scott, 7th Dist. No. 13 MA 47, 2014-Ohio-2993, ¶ 22. 
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{¶16} In this case, appellant sought to continue the trial just as jury selection 

was about to begin. He was represented by retained counsel whom he had chosen. 

He had not secured new counsel. The trial court viewed appellant’s request as a 

delay tactic noting that appellant’s counsel was surely competent and well-prepared 

for trial. Moreover, when appellant was later asked if he was satisfied with his 

counsel’s performance, he stated that he was satisfied. Given these circumstances, 

the trial court did not abuse its discretion in denying appellant’s request for a 

continuance to secure new counsel. 

{¶17} Accordingly, appellant’s first assignment of error is without merit and is 

overruled. 

{¶18} Appellant’s second assignment of error states: 

 THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE 

REQUISITE FINDINGS PRIOR TO THE IMPOSITION OF 

CONSECUTIVE SENTENCES. 

{¶19} In this assignment of error appellant asserts the trial court failed to 

make the required findings at the sentencing hearing before imposing consecutive 

sentences. Specifically, he asserts the court failed to find that consecutive sentences 

were not disproportionate to the seriousness of the offender’s conduct and to the 

danger the offender posed to the public. 

{¶20} The trial court sentenced appellant to eleven years on his voluntary 

manslaughter conviction. This count also carried with it a firearm specification and a 

repeat violent offender specification. The court sentenced appellant to three years 

on the firearm specification and three years on the repeat violent offender 

specification. The court then sentenced appellant to three years on his having a 

weapon while under a disability conviction. The court ordered all of the sentences to 

be served consecutively. 

{¶21} This assignment of error only deals with the consecutive nature of the 

sentences for voluntary manslaughter and having a weapon under a disability. This 
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is because R.C. 2929.14(B)(2)(d) requires a sentence that is imposed on a repeat 

violent offender specification to be served “consecutively to and prior to the prison 

term imposed for the underlying offense.” And R.C. 2929.14(C)(1)(a) requires a 

sentence that is imposed on a firearm specification to be served “consecutively to 

and prior to any prison term imposed for the underlying felony pursuant to division 

(A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and 

consecutively to any other prison term or mandatory prison term previously or 

subsequently imposed upon the offender.” 

{¶22} R.C. 2929.14(C)(4) requires a trial court to make specific findings when 

imposing consecutive sentences: 

(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 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 
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consecutive sentences are necessary to protect the public from future 

crime by the offender. 

{¶23} It has been held that although the trial court is not required to recite the 

statute verbatim or utter “magic” or “talismanic” words, there must be an indication 

that the court found (1) that consecutive sentences are necessary to protect the 

public from future crime or to punish the offender, (2) that consecutive sentences are 

not disproportionate to the seriousness of the offender's conduct and to the danger 

posed to the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), 

(b), or (c). State v. Bellard, 7th Dist. No. 12-MA-97, 2013-Ohio-2956, ¶ 17. However, 

the court need not give its reasons for making those findings. State v. Power, 7th 

Dist. No. 12 CO 14, 2013-Ohio-4254, ¶ 38. 

{¶24} The Ohio Supreme Court has held that the trial court must make its 

findings at the sentencing hearing and not simply in the sentencing judgment entry: 

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 

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, 16 N.E.3d 659, 2014-Ohio-3177, 16 N.E.3d 

659, syllabus. The court stressed the importance of making the findings at the 

sentencing hearing, noting this gives notice to the offender and to defense counsel. 

Id. at ¶ 29. The trial court should also incorporate its statutory findings into the 

sentencing entry. Id. at ¶ 30. 

{¶25} The transcript of the sentencing hearing must make it “clear from the 

record that the trial court engaged in the appropriate analysis.” State v. Hill, 7th Dist. 

No. 13 CA 82, 2014-Ohio-1965, ¶ 27. 

{¶26} At the sentencing hearing, the court stated: 

The court orders these sentences to be served consecutively to one 
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another. I am required to make certain findings when consecutive 

sentences are imposed. The court finds that the harm is great and 

unusual and that a single term does not adequately reflect the 

seriousness of the conduct and that your criminal history shows that 

consecutive prison terms are necessary to protect the public. 

(Sentencing Tr. 26-27). 

{¶27} An appellate court “may liberally review the entire sentencing transcript 

to discern whether the trial court made the requisite findings.” State v. Fleeton, 7th 

Dist. No. 15 MA 180, 2016-Ohio-5484, ¶ 17. 

{¶28} While the trial court could have elaborated on its findings, there is 

enough in the record for us to conclude that the court made the required findings. 

{¶29} The trial court found that a single prison term would not adequately 

reflect the seriousness of appellant’s conduct. This satisfies the first requirement. 

Pursuant to the first requirement, the court was required to find that consecutive 

sentences are necessary either to protect the public from future crime or to punish 

the offender. The court’s finding that a single prison term would not adequately 

reflect the seriousness of appellant’s conduct demonstrates that it found consecutive 

sentences were necessary to punish appellant due the seriousness of his conduct. 

{¶30} In addressing the consecutive nature of appellant’s sentences, the trial 

court also found that the harm appellant caused was great and unusual. This 

satisfies the second requirement. Pursuant to the second requirement, the court was 

required to find that consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct and to the danger posed to the public. The 

court’s finding that appellant caused great and unusual harm, while discussing 

consecutive sentences, demonstrates that the court found appellant’s conduct to be 

so serious that it necessitated consecutive sentences and, therefore, consecutive 

sentences were not disproportionate to the seriousness of appellant’s conduct and 

the danger he posed to the public. 

{¶31} Finally, the court found appellant’s criminal history demonstrated that 
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consecutive prison terms were necessary to protect the public. This satisfied the 

third requirement. Pursuant to the third requirement, the court was required to find 

that the offender’s history of criminal conduct demonstrates consecutive sentences 

are necessary to protect the public from future crime by the offender. The court’s 

finding as to the third requirement was nearly identical to the consecutive sentencing 

statutory language. 

{¶32} Thus, given that the trial court was not required to recite any “magic 

words” in making the consecutive sentencing findings, Bellard, 2013-Ohio-2956, ¶ 

17, and given that we may liberally review the sentencing transcript to determine 

whether the trial court made the requisite findings, Fleeton, 2016-Ohio-5484, ¶ 17, 

we conclude that the trial court made the findings at the sentencing hearing required 

to impose consecutive sentences. 

{¶33} Accordingly, appellant’s second assignment of error is without merit and 

is overruled. 

{¶34} Appellant’s third assignment of error states: 

 THE TRIAL COURT ERRED WHEN IT IMPOSED SENTENCE 

ON THE REPEAT VIOLENT OFFENDER SPECIFICATION WITHOUT 

MAKING THE REQUISITE FINDINGS PURSUANT TO O.R.C. 

§2929.14(B)(2)(a). 

{¶35} Appellant contends here that the trial court was required to make the 

repeat violent offender findings, regardless of his guilty plea, before sentencing him 

on the repeat violent offender specification. He contends that because the trial court 

did not make the required findings, we must conclude that the record does not 

support the enhanced sentence and vacate the sentence on the repeat violent 

offender specification. 

{¶36} R.C. 2929.14(B)(2)(a) authorizes the court to impose an additional 

prison term of one, two, three, four, five, six, seven, eight, nine, or ten years on 

certain repeat violent offenders if five criteria are met: 
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(i) The offender is convicted of or pleads guilty to a specification 

of the type described in section 2941.149 of the Revised Code that the 

offender is a repeat violent offender. 

(ii) The offense of which the offender currently is convicted or to 

which the offender currently pleads guilty is * * * any felony of the first 

degree that is an offense of violence and the court does not impose a 

sentence of life imprisonment without parole, * * *. 

(iii) The court imposes the longest prison term for the offense 

that is not life imprisonment without parole. 

(iv) The court finds that the prison terms imposed pursuant to 

division (B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or 

(3) of this section are inadequate to punish the offender and protect the 

public from future crime, because the applicable factors under section 

2929.12 of the Revised Code indicating a greater likelihood of 

recidivism outweigh the applicable factors under that section indicating 

a lesser likelihood of recidivism. 

(v) The court finds that the prison terms imposed pursuant to 

division (B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or 

(3) of this section are demeaning to the seriousness of the offense, 

because one or more of the factors under section 2929.12 of the 

Revised Code indicating that the offender's conduct is more serious 

than conduct normally constituting the offense are present, and they 

outweigh the applicable factors under that section indicating that the 

offender's conduct is less serious than conduct normally constituting the 

offense. 

{¶37} Pursuant to R.C. 2929.14(B)(2)(e), when imposing a sentence for a 

repeat violent offender specification, the court shall state its findings explaining the 

imposed sentence. 

{¶38} In this case, there is no dispute that appellant meets the first three 
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criteria. Appellant pleaded guilty to a repeat violent offender specification, voluntary 

manslaughter is a first-degree felony that is an offense of violence, and the trial court 

imposed the maximum term of eleven years for that offense. The dispute here 

concerns the fourth and fifth criteria. 

{¶39} This court has found that the judicial fact-finding set out in R.C. 

2929.14(B)(2)(a)(iv) and (v) is not required before imposing a sentence for a repeat 

violent offender specification. In State v. Smith, 7th Dist. No. 11 MA 120, 2013-Ohio756, cause dismissed, 137 Ohio St.3d 1470, 2014-Ohio-176, 2 N.E.3d 266, the 

appellant raised an argument that the trial court did not make the required findings 

under R.C. 2929.14(B)(2)(a)(iv) and (v) to sentence him on the repeat violent 

offender specification. In overruling his argument, this court stated: 

However, subdivisions (iv) and (v), which were previously 

contained in (D)(2)(b)(i) and (ii), have been excised and severed from 

the statute by the Ohio Supreme Court. See State v. Foster, 109 Ohio 

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 74-78, 99. The Court 

concluded that from there on, judicial fact-finding was not required 

before imposing the additional penalty for a repeat violent offender 

specification. Id. at ¶ 99. 

In making it clear that a repeat violent offender specification still 

exists after Foster, the Court later restated that they eliminated the factfinding requirements for repeat violent offender sentencing. State v. 

Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, 915 N.E.2d 292, ¶ 25-27, 

citing State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-Ohio-855. 

Thus, the trial court need not make findings of fact before imposing 

penalty enhancements for repeat violent offenders. Id. at ¶ 26. 

Smith, 2013-Ohio-756, at ¶ 77-78. 

{¶40} More recently the Tenth District came to the same conclusion citing 

our decision in Smith and stating that the statutory language in R.C. 2929.14(B)(2)(a) 
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that the appellant relied on was stricken in Foster, 109 Ohio St.3d 1, and had not 

been specifically reenacted by the General Assembly. State v. Fillmore, 10th Dist. 

No. 15AP-509, 2015-Ohio-5280, ¶ 7. 

{¶41} Thus, the trial court was not required to make the findings set out in 

R.C. 2929.14(B)(2)(a)(iv) and (v) before sentencing appellant on the repeat violent 

offender specification. 

{¶42} Accordingly, appellant’s third assignment of error is without merit and is 

overruled. 

{¶43} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

DeGenaro, J., concurs. 

Robb, J., concurs.