[Cite as State v. Johnson,
2024-Ohio-5274.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JOSHUA A. JOHNSON, : Case No. CT2024-0056
: CT2024-0057
Defendant - Appellant :
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case Nos.
CR2023-0345 and CR2023-0456
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 1, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. PALMER CHRIS BRIGDON
27 N. Main Street 8138 Somerset Road
Zanesville, Ohio 43702 Thornville, Ohio 43076
Muskingum County, Case No. CT2024-0056,0057 2
Baldwin, J.
{¶1} The appellant appeals the trial court’s decision to impose consecutive
sentences. The appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On May 25, 2023, the appellant was indicted in Muskingum County Court
of Common Pleas Case Number CR2023-0345 on the following charges: Count One,
Burglary in violation of R.C. 2911.12(A)(1) and (D), a second degree felony; Count Two,
Telecommunications Fraud in violation of R.C. 2913.05(A), (B), and (C), a fourth degree
felony; Count Three, Theft in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree
felony; Count Four, Theft in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree
felony; Count Five, Theft in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree
felony; Count Six, Identity Fraud in violation of R.C. 2913.49(B)(2) and (I)(2), a fourth
degree felony; Count Seven, Theft in violation of R.C. 2913.02(A)(3) and (B)(2), a fifth
degree felony; and, Count Eight, Possessing Criminal Tools in violation of R.C.
2923.24(A) and (C), a fifth degree felony.
{¶3} On July 20, 2023, the appellant was indicted in Muskingum County Court of
Common Pleas Case Number CR2023-0456 on the following charges: Count One,
Burglary in violation of R.C. 2911.12(A)(3) and (D), a third degree felony; Count Two,
Theft in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree felony; Count Three,
Theft in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree felony; Count Four, Theft
in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree felony; Count Five, Theft in
violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree felony; Count Six, Possession
Criminal Tools in violation of R.C. 2923.24(A) and (C), a fifth degree felony; and, Count
Muskingum County, Case No. CT2024-0056,0057 3
Seven, Possession Criminal Tools in violation of R.C. 2923.24(A) and (C), a fifth degree
felony. The appellant was incarcerated at the time of the indictments. He was appointed
counsel, and on April 2, 2024, pleaded not guilty to all charges in both cases.
{¶4} On April 22, 2024, the appellant changed his plea, and executed “Plea of
Guilty” forms in both cases. In Case Number CR2023-0345, he pleaded guilty to Count
Three, Theft in violation of R.C. 2923.02(A)(1), a fifth degree felony. The appellee
dismissed the remaining charges. The Plea of Guilty form set forth a stated minimum
prison term of 6, 7, 8, 9, 10, 11, or 12 months on said count.
{¶5} In Case Number CR2023-0456, the appellant pleaded guilty to Count Two,
Theft in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree felony; Count Three,
Theft in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree felony; Count Four, Theft
in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree felony; and, Count Five, Theft
in violation of R.C. 2913.02(A)(1) and (B)(2), a fifth degree felony. The appellee dismissed
the remaining charges. The Plea of Guilty form set forth a stated minimum prison term of
6, 7, 8, 9, 10, 11, or 12 months on each count.
{¶6} In addition, a change of plea hearing took place on April 22, 2024. The
appellee summarized the facts of both cases, as well as the plea agreements, stating that
“[t]here is a jointly recommended sentence to impose an aggregate total prison term of
60 months between this case and the other pending matter, 2023-456. The parties
stipulate for findings of consecutive sentences.” The trial court asked the appellant’s
counsel if the appellee’s summary was accurate, to which he replied “[t]hat’s correct, Your
Honor.”
Muskingum County, Case No. CT2024-0056,0057 4
{¶7} The trial court engaged in the requisite Crim.R. 11(C) colloquy, and
proceeded to sentence the appellant. The appellant, who has an extensive criminal
record, had served time in prison on five separate occasions. The trial court sentenced
the appellant in Case Number 2023-0345 to 12 months on the theft charge to which he
pleaded guilty. The trial court sentenced the appellant on the charges to which he pleaded
guilty in Case Number 2023-0456 as follows: on Count Two, 12 months in prison; on
Count Three, 12 months in prison; on Count Four, 12 months in prison; and, on Count
Five, 12 months in prison, all to run consecutively in both cases for an aggregate term of
48 months. The trial court ordered that the appellant’s 48-month sentence would run
consecutively to the 12-month sentence in Case Number 2023-0345, for an overall
aggregate sentence of 60 months, which was what the parties had jointly recommended.
{¶8} The trial court specifically found that consecutive sentences were
necessary to protect the public and punish the appellant, and were not disproportionate
to the seriousness of the appellant’s conduct and the danger he posed to the public. The
court stated further that the appellant’s history of criminal conduct demonstrated that
consecutive sentences were necessary to protect the public from future crime.
{¶9} At the time of sentencing, the appellant had four-and-one-half years
remaining on a prison sentence in two unrelated prior theft cases in Franklin County,
Ohio, and Delaware County, Ohio.1 The trial court considered the appellant’s numerous
criminal matters in Ohio, as well as his lengthy criminal history, stating:
1
In addition, at the time of sentencing the appellant had a pending criminal case in
Kentucky, where he had been charged as a persistent felony offender and was facing a
consecutive 10-year sentence.
Muskingum County, Case No. CT2024-0056,0057 5
THE COURT: And you’re very much so a repeat offender, you would
agree; right?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You’ll be 42 this year?
THE DEFENDANT: Yes, Your Honor.
THE COURT: So how much time have you spent in prison so far of
your life?
THE DEFENDANT: Probably about 20 years.
THE COURT: Why were you - - why were you in Muskingum County?
THE DEFENDANT: Just passing through.
THE COURT: No, you weren’t passing through because you went to
Planet Fitness.2
THE DEFENDANT: I thought you was asking me like was I like in town
hanging out with anybody. And I don’t know nobody - - nobody here.
THE COURT: Did you just come here specifically to find a Planet
Fitness and go into the locker room, because you paid 10 bucks and you’re
able to get in?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Based upon the facts and circumstances and the
history of your history, I’m going to order this be consecutive to any time
you’re serving at this point.
2
A number of the theft charges herein involved the appellant stealing wallets from lockers
in Planet Fitness.
Muskingum County, Case No. CT2024-0056,0057 6
And, again, the Court finds consecutive sentences are necessary to
punish this offender and finding consecutive sentences are not
disproportionate to the seriousness of the conduct and danger posed to the
public.
Additionally, your history of criminal conduct demonstrates
consecutive sentences are necessary to protect the public from future crime
of this offender. So this is consecutive to any time you’re already serving in
that four - - four-and-one-half year sentence that - - I don’t know if it’s
Franklin County, whatever. I forget where it was.
MR. EDWARDS: Franklin and Delaware.
THE COURT: Franklin and Delaware….
Thus, the trial court addressed the imposition of consecutive sentences for case numbers
CR2023-0345 and CR2023-0456, as well as the prior Franklin and Delaware County
cases for which the appellant had four-and-one-half years remaining in prison.
{¶10} The appellant filed a timely appeal, in which he sets forth the following sole
assignment of error:
{¶11} “I. SHOULD THIS COURT REVERSE THE TRIAL COURT'S DECISION
TO IMPOSE CONSECUTIVE SENTENCES BETWEEN MUSKINGUM COUNTY CASES
2023 CR 345 AND 2023 CR 456, GIVEN THAT THE APPELLANT WAS ALREADY
SERVING A 4.5 YEAR PRISON SENTENCE FROM FRANKLIN COUNTY AND
DELAWARE COUNTY CASES AT THE TIME OF SENTENCING FOR THE
MUSKINGUM COUNTY CASES?”
Muskingum County, Case No. CT2024-0056,0057 7
{¶12} The appellant argues that the trial court erred in imposing consecutive
sentences, and in finding that his sentences should be consecutive to the four-and-one-
half year sentence he was serving on the Franklin and Delaware County cases. We
disagree.
STANDARD OF REVIEW
{¶13} Appellate review of felony sentences was addressed by this Court in State
v. Corbett, 2023-Ohio-556 (5th Dist.):
We review felony sentences using the standard of review set forth in
R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59
N.E.3d 1231, ¶ 22. In State v. Gwynne, a plurality of the Supreme Court of
Ohio held that an appellate court may only review individual felony
sentences under R.C. 2929.11 and R.C. 2929.12, while R.C. 2953.08(G)(2)
is the exclusive means of appellate review of consecutive felony sentences.
158 Ohio St.3d 279,
2019-Ohio-4761,
141 N.E.3d 169, ¶ 16-18.
R.C. 2953.08(G)(2) provides we may either increase, reduce,
modify, or vacate a sentence and remand for resentencing where we clearly
and convincingly find that either the record does not support the sentencing
court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or
2929.20(I), or the sentence is otherwise contrary to law. See, also, State v.
Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.2d 659, ¶ 28;
Gwynne, supra, ¶ 16.
Clear and convincing evidence is that evidence “which will provide in
the mind of the trier of facts a firm belief or conviction as to the facts sought
Muskingum County, Case No. CT2024-0056,0057 8
to be established.” Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118
(1954), paragraph three of the syllabus. “Where the degree of proof required
to sustain an issue must be clear and convincing, a reviewing court will
examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio
St. at 477, 120 N.E.2d 118.
Id. at ¶24-26.
{¶14} The issue of consecutive sentences was discussed by the Ohio Supreme
Court in the seminal case of State v. Bonnell, 2014-Ohio-3177:
On appeals involving the imposition of consecutive sentences, R.C.
2953.08(G)(2)(a) directs the appellate court “to review the record, including
the findings underlying the sentence” and to modify or vacate the sentence
“if it clearly and convincingly finds … [t]hat the record does not support the
sentencing court's findings under division … (C)(4) of section 2929.14 …
* of the Revised Code.” But that statute does not specify where the findings
are to be made. Thus, the record must contain a basis upon which a
reviewing court can determine that the trial court made the findings required
by R.C. 2929.14(C)(4) before it imposed consecutive sentences.
Id. at ¶ 28.
ANALYSIS
{¶15} R.C. 2929.14 addresses prison terms, and specifically addresses the
imposition of consecutive sentences at section (C)(4):
Muskingum County, Case No. CT2024-0056,0057 9
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
consecutive sentences are necessary to protect the public from future crime
by the offender.
This language was applied in Corbett, supra, in which this Court stated:
“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
Muskingum County, Case No. CT2024-0056,0057 10
it has no obligation to state reasons to support its findings.” State v.
Newman, 5th Dist. Fairfield No. 20-CA-44, 2021-Ohio-2124,
2021 WL
2628079, ¶ 100, citing State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, syllabus. In other words, the sentencing court does
not have to perform “a word-for-word recitation of the language of the
statute.” Id. at ¶ 29. Therefore, “as long as the reviewing court can discern
that the trial court engaged in the correct analysis and can determine that
the record contains evidence to support the findings, consecutive sentences
should be upheld.” Id. If a sentencing court fails to make the findings
required by R.C. 2929.14(C)(4), a consecutive sentence imposed is
contrary to law. Id. at ¶ 34. The trial court is not required “to give a talismanic
incantation of the words of the statute, provided that the necessary findings
can be found in the record and are incorporated into the sentencing entry.”
Id. at ¶ 37.
Id. at ¶28.
{¶16} The appellant argues that the imposition of consecutive sentences between
Muskingum, Franklin and Delaware Counties is in contravention of R.C. 2929.14(C)(4).
We disagree. Our review of the record confirms that the trial court engaged in the correct
analysis as required by R.C. 2929.14(C)(4) before it imposed consecutive sentences,
both with regard to the Muskingum County cases and the Franklin and Delaware County
cases, and we are able to determine that the record contains evidence to support the trial
court’s findings. As set forth by this Court in State v. Paskins, 2022-Ohio-4024 (5th Dist.):
Muskingum County, Case No. CT2024-0056,0057 11
In State v. Bates, the Ohio Supreme Court ruled the trial court may
impose a prison sentence to be served consecutively to a prison sentence
imposed on the same offender by another Ohio court. 118 Ohio St.3d 174,
2008-Ohio-1983,
887 N.E.2d 328. To overcome the presumption that
sentences run concurrently and impose consecutive sentences in an
unrelated case, the trial court must comply with R.C. 2929.14(C). State v.
Harmon, 7th Dist. Columbiana No. 21 CO 0015,
2022-Ohio-3617,
2022 WL
6677200, ¶7; State v. Irwin-Debraux, 2nd Dist. Montgomery No. 28308,
2019-Ohio-5013,
2019 WL 6652171, ¶12.
Id. at ¶ 92.
{¶17} The trial court specifically found that consecutive sentences were
necessary to protect the public and punish the appellant, and were not disproportionate
to the seriousness of the appellant’s conduct and the danger he posed to the public. The
trial court also considered the appellant’s history of criminal conduct, finding that it
demonstrated consecutive sentences were necessary to protect the public from future
crime. The trial court utilized this language with regard to the Muskingum County criminal
matters before it, as well as with regard to the Franklin and Delaware County cases,
stating that it found consecutive sentences “necessary to punish this offender and finding
consecutive sentences are not disproportionate to the seriousness of the conduct and
danger posed to the public.” Additionally, the trial court stated that the appellant’s “history
of criminal conduct demonstrates consecutive sentences are necessary to protect the
public from future crime of this offender,” and that it was consecutive to any time the
Muskingum County, Case No. CT2024-0056,0057 12
appellant was already serving in the four-and-one-half year sentence from Franklin and
Delaware Counties.
{¶18} “[A]s long as the reviewing court can discern that the trial court engaged in
the correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld.” Bonnell, supra, at ¶ 29. In the case
sub judice, the record establishes that the trial court made the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing, and incorporated its findings into its sentencing
entry. The record supports the findings of the trial court, and the appellant’s consecutive
sentences should be upheld. We therefore find the appellant’s assignment of error to be
without merit.
CONCLUSION
{¶19} Based upon the foregoing, the appellant’s sole assignment of error is
overruled, and the decision of the Muskingum County Court of Common Pleas is hereby
affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.
