[Cite as State v. Jacobs,
2015-Ohio-4559.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vsCase No. 15CA5
TERRY JACOBS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Case No. 14CR04-0071
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 29, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE W. JEFFREY MOORE
Knox County Prosecutor Moore & Yaklevich
117 East High Street, Suite 234 100 E. Main Street
Mount Vernon, Ohio 43050 Columbus, Ohio 43215
Knox County, Case No. 15CA5 2
Hoffman, J.
{¶1} Defendant-appellant Terry Jacobs appeals his conviction and sentence
entered by the Knox County Court of Common Pleas. Plaintiff-appellee is the state of
Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On April 21, 2014, Appellant was indicted on one count of engaging in a
pattern of corrupt activity, one count of aggravated funding of drug trafficking, and thirty-
five counts of trafficking in drugs. The indictment stemmed from allegations Appellant
acted in concert with other individuals in a scheme to travel to and from Florida and
other states during a period of time spanning from January 1, 2011 to February 7, 2014,
to obtain prescription medications and to use and/or sell those medications in Ohio.
{¶3} On January 6, 2015, Appellant entered a plea of guilty to one count of
engaging in a pattern of corrupt activity, in violation of R.C. 2923.32(A)(1), a felony of
the first degree; and one count of aggravated funding of drug trafficking, in violation of
R.C. 2925.05(A)(1), a felony of the first degree. Appellant also entered a plea of guilty
to a forfeiture specification to Count One, in the amount of $833.00 in U.S. currency, as
set forth in R.C. 2981.02.The state of Ohio then dismissed the remaining counts.
{¶4} On February 13, 2015, the trial court sentenced Appellant on Count One,
Engaging in a Pattern of Corrupt Activity, to a definite prison term of ten years in prison;
and on Count Two, Aggravated Funding of Drug Trafficking, to a mandatory seven year
prison term, to be served concurrently with the sentence imposed on Count One. The
trial court also imposed a five year term of post-release control.
{¶5} Appellant appeals, assigning as error:
Knox County, Case No. 15CA5 3
{¶6} "I. THE TRIAL COURT ERRED IN SENTENCING MR. JACOBS TO 10
YEARS ON THE CHARGE OF ENGAGING IN A PATTERN OF CORRUPT ACTIVITY.
{¶7} "II. THE TRIAL COURT ERRED IN SENTENCING MR. JACOBS TO 10
YEARS ON COUNT 1 AND 7 YEARS ON COUNT 2.
{¶8} "III. THE TRIAL COURT ERRED IN NOT MERGING FOR SENTENCING
THE TWO CHARGES MR. JACOBS WAS CONVICTED OF."
I.
{¶9} In the first assignment of error, Appellant maintains the trial court erred in
sentencing Appellant pursuant to House Bill 86 revisions to sentencing.
{¶10} At no time during the plea hearing did Appellant request the trial court
sentence him under pre-House Bill 86 sentencing statutes, nor did he file any motions to
that effect. Therefore, this Court reviews the argument only for plain error. State v.
Long (1978), 53 Ohio St.2d 91; Crim. R. 52(B).
{¶11} House Bill 86 became effective on September 30, 2011. The General
Assembly made the prospective operation clear in Section 4 of the Act, which states:
"The amendments to...division (A) of section 2929.14 of the Revised Code that are
made in this act apply to a person who commits an offense specified or penalized under
those sections on or after the effective date of this section." (Emphasis added.)
{¶12} The section does not provide the act applies to those who commit their
offenses during the effective date of the section. Therefore, although Appellant's course
of criminal conduct began prior to the effective date of H.B. 86, his conduct did occur
on, during and after the effective date; therefore, the trial court did not err in sentencing
Knox County, Case No. 15CA5 4
Appellant according to the provisions of H.B. 86. We reject Appellant's argument he is
entitled to elect under which provision he is to be sentenced.
{¶13} The first assignment of error is overruled.
II.
{¶14} In the second assigned error, Appellant maintains his sentence is contrary
to law.
{¶15} Appellant is a first-time felony offender and argues his sentence is
contrary to law because it does not comply with the overriding purposes of felony
sentencing, to wit, “to protect the public from future crime by the offender and others
and to punish the offender using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on state or local
government resources.” R.C. 2929.11(A). Appellant asserts he should have received
the minimum sentence of six years.
{¶16} In State v. Kalish, 120 Ohio St.3d 23,
896 N.E.2d 124, 2008–Ohio–4912,
the Ohio Supreme Court established a two-step procedure for reviewing a felony
sentence. The first step is to “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.”
Kalish at ¶ 4. If the first step is
satisfied, the second step requires the trial court's decision be reviewed under an
abuse-of-discretion standard.
Id. We have recognized that “[w]here the record lacks
sufficient data to justify the sentence, the court may well abuse its discretion by
imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.
Licking No.2006–CA–41, 2006–Ohio–5823, ¶ 52.
Knox County, Case No. 15CA5 5
{¶17} R.C. 2953.08(G)(2) provides two grounds for an appellate court to
overturn the imposition of a sentence: (1) the sentence is “otherwise contrary to law”; or
(2) the appellate court, upon its review, clearly and convincingly finds that “the record
does not support the sentencing court's findings ….”
{¶18} The Supreme Court held, in Kalish, the trial court's sentencing decision
was not contrary to law. “The trial court expressly stated it considered the purposes and
principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12. Moreover, it
properly applied post release control, and the sentence was within the permissible
range. Accordingly, the sentence is not clearly and convincingly contrary to law.” Kalish
at ¶ 18. The Court further held the trial court “gave careful and substantial deliberation
to the relevant statutory considerations” and there was “nothing in the record to suggest
that the court's decision was unreasonable, arbitrary, or unconscionable.” Kalish at ¶ 20
{¶19} In the instant case, the trial court found a prison term was consistent with
the purposes and principles of sentencing under R.C. 2929.11. The trial court found
Count Two, aggravated funding of drug trafficking, carried a mandatory prison sentence.
{¶20} R.C. 2925.05(C)(1) provides:
(C)(1) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or II, with the exception of
marihuana, whoever violates division (A) of this section is guilty of
aggravated funding of drug trafficking, a felony of the first degree, and,
subject to division (E) of this section, the court shall impose as a
mandatory prison term one of the prison terms prescribed for a felony of
the first degree.
Knox County, Case No. 15CA5 6
{¶21} Appellant entered a plea of guilty to trafficking of Schedule I or II drugs.
{¶22} Section 2929.13(A) states,
(A) Except as provided in division (E), (F), or (G) of this section and
unless a specific sanction is required to be imposed or is precluded from
being imposed pursuant to law, a court that imposes a sentence upon an
offender for a felony may impose any sanction or combination of sanctions
on the offender that are provided in sections 2929.14 to 2929.18 of the
Revised Code.
{¶23} On Count One, the trial court sentenced Appellant within the applicable
statutory ranges for a first degree felony. Appellant was sentenced to ten years, within
the statutory range of three to eleven years prescribed by R.C. 2929.14(A)(1). On
Count Two, Appellant was sentenced to a seven year mandatory term of imprisonment
pursuant to R.C. 2929.14(A)(1).
{¶24} Accordingly, we find Appellant's sentence herein is not contrary to law.
Further, we find the trial court did not abuse its discretion in sentencing Appellant.
{¶25} The second assignment of error is overruled.
III.
{¶26} In the third assignment of error, Appellant asserts the trial court erred in
failing to merge his convictions for engaging in a pattern of corrupt activity and
aggravated funding of drug trafficking. We disagree.
{¶27} R.C. 2923.32(A)(1), Engaging in a Pattern of Corrupt Activity, is Ohio's
equivalent of the federal RICO statute. In State v. Miranda, 138 Ohio St.3d 184, 2014-
Ohio-451, the Ohio Supreme Court held,
Knox County, Case No. 15CA5 7
“R.C. 2941.25, however, is not the sole legislative declaration in
Ohio on the multiplicity of indictments.” Childs at 561, 728 N.E.2d 379.
“While our two-tiered test for determining whether offenses constitute
allied offenses of similar import is helpful in construing legislative intent, it
is not necessary to resort to that test when the legislature's intent is clear
from the language of the statute.” State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569,
895 N.E.2d 149, ¶ 37. R.C. 2941.25 generally provides
the appropriate test to determine whether the court may impose multiple
punishments for offenses arising from the same conduct. However, in this
case, we find that the RICO statute evinces the General Assembly's intent
that a court may sentence a defendant for both the RICO offense and its
predicate offenses.
…
We hold that Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314,
942
N.E.2d 1061, is not applicable to a RICO violation, and a RICO offense
does not merge with its predicate offenses for purposes of sentencing. In
this case, the trial court sentenced Miranda for both RICO and the
predicate offense of trafficking in marijuana.
{¶28} Based upon the Ohio Supreme Court's holding in Miranda, Appellant's
third assigned error is overruled.
Knox County, Case No. 15CA5 8
{¶29} Appellant's conviction and sentence in the Knox Court of Common Pleas
is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur
