[Cite as State v. Bass, 2017-Ohio-7059.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

WASHINGTON COUNTY 

STATE OF OHIO, : 

 : Case No. 16CA32 

Plaintiff-Appellee, : 

 : 

vs. : DECISION AND JUDGMENT 

 : ENTRY 

MARTY L. BASS, : 

 : 

 Defendant-Appellant. : Released: 07/25/17 

_____________________________________________________________ 

APPEARANCES: 

Brian A. Smith, Brian A. Smith Law Firm, LLC, Akron, Ohio, for 

Appellant. 

Kevin A. Rings, Washington County Prosecuting Attorney, and Alison L. 

Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, 

Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J. 

{¶1} Marty Bass appeals from the trial court’s judgment sentencing 

him to maximum and consecutive prison terms after he pleaded guilty to two 

counts of trafficking in cocaine in violation of R.C. 2925.03(A)(1) and 

(C)(4)(a), both felonies of the fifth degree. On appeal, Appellant contends 

that 1) his consecutive sentences were contrary to law; and 2) his sentences 

were not supported by the record. Because we have concluded that the 

sentences imposed by the trial court were supported by the record and were 
Washington App. No. 16CA32 2

not contrary to law, both of Appellant’s assignments of error are overruled. 

Accordingly, the judgment of the trial court is affirmed. 

FACTS 

{¶2} Appellant, Marty Bass, was indicted for six felony counts on 

March 24, 2016 as follows: 1) count one – trafficking in heroin, in the 

vicinity of a school, a fourth degree felony in violation of R.C. 

2925.03(A)(1) and (C)(6)(b); 2) count two – aggravated trafficking in drugs 

(fentanyl), in the vicinity of a school, a third degree felony in violation of 

R.C. 2925.03(A)(1) and (C)(1)(b); 3) count three – trafficking in cocaine, in 

the vicinity of a school, a fourth degree felony in violation of R.C. 

2925.03(A)(1) and (C)(4)(b); 4) count four – trafficking in cocaine, a fifth 

degree felony in violation of R.C. 2925.(A)(1) and (C)(4)(a); 5) count five – 

breaking and entering, a fifth degree felony in violation of R.C. 2911.13(B) 

and (C); and 6) count six – possession of cocaine, a fifth degree felony in 

violation of R.C. 2925.11(A) and (C)(4)(a). Appellant initially entered pleas 

of not guilty to the charges contained in the indictment. 

{¶3} A change of plea hearing was held on August 19, 2016 at which 

Appellant entered pleas of guilt to count three, which was amended to a fifth 

degree felony, and count four, in exchange for the dismissal of counts one, 

two, five and six. Appellant was subsequently sentenced to twelve-month 
Washington App. No. 16CA32 3

prison terms on each count, to be served consecutively. It is from the trial 

court’s imposition of consecutive sentences that Appellant now brings his 

timely appeal, assigning the following errors for our review. 

ASSIGNMENTS OF ERROR 

“I. APPELLANT’S CONSECUTIVE SENTENCES WERE 

CONTRARY TO LAW. 

II. THE TRIAL COURT’S SENTENCE OF APPELLANT WAS 

NOT SUPPORTED BY THE RECORD.” 

LEGAL ANALYSIS 

{¶4} As both of Appellant’s assignments of error challenge the trial 

court’s imposition of consecutive prison terms, we address them in 

conjunction with one another. In his first assignment of error, Appellant 

contends that his consecutive sentences were contrary to law, arguing that 

although the trial court made the necessary findings for imposition of 

consecutive sentences on the record during the sentencing hearing, it failed 

to include the necessary findings in the sentencing entry. The State agrees 

the required statutory findings for imposition of consecutive sentences were 

omitted from the sentencing entry and suggests this matter should be 

remanded to correct the clerical error with a nunc pro tunc order. In his 

second assignment of error, Appellant contends that the record does not 

support the imposition of consecutive sentences. 
Washington App. No. 16CA32 4

{¶5} R.C. 2953.08(G)(2) defines appellate review of felony sentences 

and provides, in relevant part, as follows: 

“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 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.” 

{¶6} “[A]n appellate court may vacate or modify a felony sentence on 

appeal only if it determines by clear and convincing evidence that the record 
Washington App. No. 16CA32 5

does not support the trial court's findings under relevant statutes or that the 

sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 

516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 1. This is a deferential standard. 

Id. at ¶ 23. Furthermore, “appellate courts may not apply the abuse-ofdiscretion standard in sentencing-term challenges.” Id. at ¶ 10. Additionally, 

although R.C. 2953.08(G) does not mention R.C. 2929.11 or 2929.12, the 

Supreme Court of Ohio has determined that the same standard of review 

applies to findings made under those statutes. Id. at ¶ 23 (stating that “it is 

fully consistent for appellate courts to review those sentences that are 

imposed solely after consideration of the factors in R.C. 2929.11 and 

2929.12 under a standard that is equally deferential to the sentencing court,” 

meaning that “an appellate court may vacate or modify any sentence that is 

not clearly and convincingly contrary to law only if the appellate court finds 

by clear and convincing evidence that the record does not support the 

sentence”). 

“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 
Washington App. No. 16CA32 6

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; Id. at ¶ 22. 

{¶7} Further, as noted by the Eighth District Court of Appeals: 

“It is important to understand that the ‘clear and convincing’ 

standard applied in R.C. 2953.08(G)(2) is not discretionary. In 

fact, R.C. 2953.08(G)(2) makes it clear that ‘[t]he appellate 

court's standard for review is not whether the sentencing court 

abused its discretion.’ As a practical consideration, this means 

that appellate courts are prohibited from substituting their 

judgment for that of the trial judge. 

It is also important to understand that the clear and convincing 

standard used by R.C. 2953.08(G)(2) is written in the negative. 

It does not say that the trial judge must have clear and 

convincing evidence to support its findings. Instead, it is the 

court of appeals that must clearly and convincingly find that the 

record does not support the court's findings. In other words, the 

restriction is on the appellate court, not the trial judge. This is 

an extremely deferential standard of review.” State v. Venes, 8th 
Washington App. No. 16CA32 7

Dist. Cuyahoga No. 98682, 2013–Ohio–1891, ¶ 20–21, 992 

N.E.2d 453. 

Here, it appears the sentences Appellant received on counts three and four, 

although maximum sentences, were within the statutory range for each 

offense. Thus, it cannot be said that the length of either sentence is contrary 

to law. Further, “[m]aximum sentences do not require specific findings. 

State v. Sawyer, 4th Dist. Meigs No. 16CA2, 2017-Ohio-1433, ¶ 16; citing 

State v. McClain, 4th Dist. Pickaway No. 13CA17, 2014–Ohio–4192, ¶ 36; 

State v. Lister, 4th Dist. Pickaway No. 13CA15, 2014–Ohio–1405, ¶ 10; 

citing State v. White, 2013–Ohio–4225, 997 N.E.2d 629, ¶ 7 (1st Dist.). 

{¶8} Additionally, with respect to the trial court’s decision to order 

the sentences be served consecutively, under the tripartite procedure set forth 

in R.C. 2929.14(C)(4) for imposing consecutive sentences, the trial court 

had to find that (1) consecutive sentences are 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) that one of three 

circumstances specified in the statute applies. See generally State v. Baker, 

4th Dist. Athens No. 13CA18, 2014–Ohio–1967, ¶ 35–36. The three 

circumstances are as follows: 
Washington App. No. 16CA32 8

“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 postrelease 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.” 

{¶9} The trial court is required to make these findings at the 

sentencing hearing and to incorporate its findings in its sentencing entry. 

State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659, 

syllabus. “The trial court need not use talismanic words to comply with 

R.C. 2929.14(C)(4), but it must be clear from the record that the trial court 
Washington App. No. 16CA32 9

actually made the required findings.” State v. Campbell, 4th Dist. Adams 

No. 13CA969, 2014–Ohio–3860, at ¶ 25. 

{¶10} Although the trial court must make the required findings before 

imposing consecutive sentences, the court is under no obligation to make 

specific findings under the various factors in these statutes. See State v. 

Kulchar, 4th Dist. Athens No. 10CA6, 2015–Ohio–3703, ¶ 47. Nor did the 

trial court have any obligation under R.C. 2929.14(C)(4) to state reasons to 

support its findings to impose consecutive sentences. Bonnell at syllabus 

(“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”). 

{¶11} We reject Appellant’s assertion that consecutive sentences are 

contrary to law and unsupported by the record. Here, the trial court’s 

judgment entry stated that it had considered the principles and purposes of 

sentencing under R.C. 2929.11 through 2929.19, as well as the record, oral 

statements and a pre-sentence report. The trial court’s sentencing entry 

further expressly balanced and weighed the seriousness and recidivism 

factors, and determined Appellant was not amenable to any available 
Washington App. No. 16CA32 10

community control sanctions. The trial court further expressly stated in the 

sentencing entry, contrary to the arguments of both parties, as follows: 

“(1) Imposition of consecutive sentences is necessary to protect 

the public from future crime or to punish the offender; 

(2) Imposition of consecutive sentences is not disproportionate 

to the seriousness of the offenders [sic] conduct and to the 

danger the offender poses to the public; and 

(3) Offender’s criminal history shows that consecutive terms 

are needed to protect the public.” 

Thus, the required findings were made by the trial court before imposing 

consecutive sentences and further, the trial court was under no obligation to 

state its reasons for making its findings. 

{¶12} In State v. Campbell, 4th Dist. Adams No. 15CA1012, 2016-

Ohio-415, ¶ 15, we recently noted that courts have upheld the imposition of 

consecutive sentences that even included a life sentence as long as the trial 

court makes the required findings. Citing State v. Peak, 8th Dist. Cuyahoga 

No. 102850, 2015-Ohio-4702, ¶ 8-14 (affirming the imposition of two 

consecutive life sentences with the possibility of parole after ten years on 

each of the two counts for rape of a victim less than thirteen years old.). In 

light of that reasoning, we concluded Campbell had “failed to establish that 
Washington App. No. 16CA32 11

the trial court clearly and convincingly imposed a sentence that was either 

not supported by the record or otherwise contrary to law.” Id. at ¶16. The 

same reasoning applies herein and leads to the same result. 

{¶13} Here, Appellant pleaded guilty to two felony drug offenses 

involving trafficking in cocaine, one of which was amended as part of the 

plea deal from a fourth degree felony to a fifth degree felony, in exchange 

for the dismissal of four other felony counts. While Appellant argues on 

appeal that he simply trafficked to support his own drug use, the resultant 

harm to the community is still the same. The trial court considered all of the 

pertinent statutes, balanced all of the pertinent factors and made all of the 

necessary findings before imposing consecutive sentences. And, again, 

despite the arguments of both parties, these findings were made on the 

record during the sentencing hearing, and were also expressly included on 

pages five and six of the sentencing entry. As such, we cannot conclude that 

the imposition of consecutive sentences was contrary to law or unsupported 

by the record. Accordingly, both of Appellant’s assignments of error are 

overruled. 

JUDGMENT AFFIRMED. 
Washington App. No. 16CA32 12

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and costs be 

assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Washington County Common Pleas Court to carry this judgment into 

execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Harsha, J. & Abele, J.: Concur in Judgment and Opinion. 

For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.