[Cite as State v. Martin,
2020-Ohio-291.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-19-026
Appellee Trial Court No. 18 CR 644
v.
Brian K. Martin DECISION AND JUDGMENT
Appellant Decided: January 31, 2020
…
Joseph H. Gerber, Sandusky County Assistant Prosecuting Attorney,
for appellee.
Brett A. Klimkowsky, for appellant.
…
SINGER, J.
{¶ 1} Appellant, Brian Martin, appeals from the Sandusky County Court of
Common Pleas judgment imposing consecutive sentences. For the following reasons, we
affirm the trial court’s judgment.
{¶ 2} Appellant sets forth one assignment of error:
1. The Trial Court’s sentence of Brian K. Martin (“Appellant”) is
excessive and violates the law insofar as the Trial Court should have
sentenced Appellant’s incarceration to run concurrently.
Background
{¶ 3} On June 18, 2018, appellant was indicted on nine felony drug trafficking
charges. Appellant pled not guilty to the charges.
{¶ 4} On February 27, 2019, appellant pled guilty to two counts of trafficking in
cocaine (Counts 1 and 2 of the indictment) in violation of R.C. 2907.02(A)(1)(C)(4)(b),
each with the specification of trafficking in the vicinity of a school zone (“school
specification”), and two counts of trafficking in heroin (Counts 3 and 8 of the indictment)
in violation of R.C. 2925.03(A)(1)(C)(6)(b), each with a school specification. All of the
counts were felonies of the fourth degree.
{¶ 5} On May 2, 2019, a sentencing hearing was held and appellant was sentenced
to 18 months in prison on each of the four counts to which he pled guilty, with Counts 1
and 2 to run concurrently with each other, Counts 3 and 8 to run concurrently with each
other, and Counts 1 and 2 to run consecutively to Counts 3 and 8, for a total of 36 months
in prison, which were ordered to run consecutively to the sentence entered by the Seneca
County Court of Common Pleas in case Nos. 18-CR-0078 and 18-CR-0134. On May 22,
2019, the trial court filed a judgment entry of sentencing. Appellant timely appealed.
2.
Assignment of Error
{¶ 6} Appellant argues his 36-month prison sentence is excessive and contrary to
law, because he should have received concurrent sentences. Appellant asserts he had
horrible life circumstances, as he was conceived in rape when his mother was 14 years
old, he was abandoned by his mother shortly after birth and was raised by an aunt, then a
cousin. Appellant maintains he had issues with special education while in school.
{¶ 7} Appellant submits he is in his mid-40s and is currently incarcerated in
Seneca County, where he is a model prisoner. Appellant recognizes he has a drug
problem and is now ready to deal with it. Appellant contends he is genuinely remorseful
and is a changed person.
Law
{¶ 8} The standard of appellate review of felony sentences is set forth in R.C.
2953.08. In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11,
this court defined that standard of review as whether there is clear and convincing
evidence to support the trial court’s findings and whether the sentence is otherwise
contrary to law.
{¶ 9} A sentence is not clearly and convincingly contrary to law “where the trial
court considers the purposes and principles of sentencing under R.C. 2929.11 as well as
the seriousness and recidivism factors listed in R.C. 2929.12, properly applies post-
release control, and sentences a defendant within the permissible statutory range.” State
v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. In felony cases it is
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unnecessary for the trial court to articulate its consideration of each factor, so long as it is
obvious from the record that the principles of sentencing were considered by the court.
State v. Gonzalez, 8th Dist. Cuyahoga No. 102579,
2015-Ohio-4765, ¶ 6.
{¶ 10} When sentencing an offender for a felony, the trial court is to be guided by
the overall purposes of sentencing which are to “protect the public from future crime by
the offender and others, to punish the offender, and to promote the effective rehabilitation
of the offender using the minimum sanctions … without imposing an unnecessary
burden on state or local government resources.” R.C. 2929.11(A). The felony sentence
must be “reasonably calculated to achieve” these goals, “commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact upon the victim,”
and “consistent with sentences imposed for similar crimes committed by similar
offenders.” R.C. 2929.11(B).
{¶ 11} Before a trial court imposes consecutive sentences, the court is required to
make three findings: (1) consecutive sentences are “necessary to protect the public from
future crime or to punish the offender …”; (2) the imposition of consecutive sentences
is not “disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public …”; and (3) one of the factors in R.C. 2929.14(C)(4)(a)-
(c) applies. R.C. 2929.14(C)(4). R.C. 2929.14(C)(4)(c), which relates to this case,
provides: “[t]he offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.”
4.
Analysis
{¶ 12} The record shows at the May 2, 2019 sentencing hearing, the trial court
listened to the state’s position, appellant’s counsel’s arguments and appellant’s statement,
including that he is a changed person. The court observed it was cognizant of the
overriding purposes of sentencing pursuant to R.C. 2929.11, including to protect the
public from future crime by the offender and others, and to punish the offender using
minimum sanctions, without imposing an unnecessary burden on the state or local
government resources. To achieve those purposes, the court considered the rehabilitation
of the offender, providing restitution to the victim and/or public, the need to incapacitate
the offender and to deter the offender and others.
{¶ 13} In imposing the sentence, the court tried to achieve the purposes of R.C.
2929.11(B) and (C), have the sentence reflect the seriousness of the offender’s conduct
and its impact on society, and be consistent with sentences imposed for similar crimes
committed by similar offenders, and not based on race, gender, ethnicity and religion.
{¶ 14} The court noted appellant had prior felony convictions dating back to 1997,
2002, 2003, 2005, 2013, 2016, and two in 2018. The court believed no available
community control sanctions would adequately fulfill the overriding purposes and
principles of sentencing. The court considered the factors indicating appellant’s conduct
is more serious or less serious, under R.C. 2929.12(B), and found none applied.
{¶ 15} In considering recidivism factors, under R.C. 2929.12(D), that appellant is
more likely to commit further crimes, the court reviewed appellant’s history of criminal
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convictions and juvenile adjudications in the PSI (presentence investigation report),
including a finding of delinquency in 1992 for a third-degree felony, the felony
convictions previously referenced and misdemeanor cases, too many to mention.
{¶ 16} The court remarked appellant has not responded favorably to sanctions
previously imposed, as he has been placed on community control sanctions at least five
times and was terminated unsuccessfully four times. The successful termination occurred
about 20 years ago and the last, unsuccessful termination happened in 2016.
{¶ 17} The court then sentenced appellant to 18 months in prison on each of the
four counts, with Counts 1 and 2 to be served concurrently with each other, Counts 3 and
8 to be served concurrently with each other, and Counts 1 and 2 to run consecutively to
Counts 3 and 8, which shall run consecutively to the sentence appellant is serving out of
Seneca County, for a total period of incarceration of 36 months. The court found
consecutive sentences were necessary to protect the public from future crime and punish
appellant, were not disproportionate to the seriousness of appellant’s conduct and the
danger he poses to the public, and appellant’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future crime by him.
{¶ 18} The court addressed appellant and informed him that his trial counsel “did
the best that he could to try to convince this Court that this Court shouldn’t impose
consecutive sentences, but, quite frankly, your record speaks for itself.” The court noted
“you got picked up on this charge … they didn’t arrest you, and you continued to deal
drugs, which accumulated more counts in this indictment.” The court also mentioned
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“you can’t with a straight face, say you’ve seen the light of day when you were charged
with this [but] you continued to pick up charges from other counties.”
{¶ 19} In the written judgment entry of sentencing, the trial court set forth it
considered the record, oral statements, presentence reports as well as the principles and
purposes of sentencing under R.C. 2929.11, and it balanced the seriousness and
recidivism factors under R.C. 2929.12. The court set forth appellant was not amenable to
community control, it would demean the seriousness of appellant’s conduct and its
impact on the victim, and a prison sentence was commensurate with the seriousness of
appellant’s conduct and its impact on the victim, and it did not place an unnecessary
burden on the state governmental resources. The court set forth, pursuant to R.C.
2929.13(D), it is presumed that a prison term is necessary to comply with the principal
and purposes of sentencing under R.C. 2929.11.
{¶ 20} The court further set forth consecutive sentences were necessary to protect
the public from future crime or to punish appellant, were not disproportionate to the
seriousness of appellant’s conduct and the danger he poses to the public, and appellant’s
history of criminal conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by him.
{¶ 21} A review of the record, including the PSI, as well as the relevant law shows
the trial court properly considered all relevant statutory factors prior to sentencing, and
complied with all of the applicable rules and laws, including R.C. 2929.11 and 2929.12,
when it imposed a sentence within the permissible statutory sentencing range for
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fourth-degree felonies. See R.C. 2929.11(A)(4). We therefore find the 36-month prison
sentence imposed by the trial court is supported by the record, is not excessive, and is not
clearly and convincingly contrary to law. Accordingly, appellant’s assignment of error is
not well-taken.
{¶ 22} The judgment of the Sandusky County Court of Common Pleas is hereby
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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