[Cite as State v. Dupler,
2024-Ohio-5721.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
DAKOTA A. DUPLER : Case No. 2024 CA 00035
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2023 CR 00111
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 6, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT BRIAN A. SMITH
20 South Second Street 123 South Miller Road
Newark, OH 43055 Suite 250
Fairlawn, OH 44333
Licking County, Case No. 2024 CA 00035 2
King, J.
{¶ 1} Defendant-Appellant Dakota Dupler appeals the March 27, 2024 judgment
of conviction and sentence of the Licking County Court of Common Pleas. Plaintiff-
Appellee is the State of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} A full recitation of the underlying facts is unnecessary for our resolution of
this appeal. The instant matter stemmed from two incidences, the first occurring on
January 14, 2023 at the Best Buy in Heath, Ohio where Dupler stole items totaling
$1,769.95. On May 23, 2022 members of the Central Ohio Drug Task Force initiated a
traffic stop on a Buick driven by Dupler. Drugs and drug paraphernalia were subsequently
found in the Buick as well as the hotel room where Dupler was living at the time.
{¶ 3} As a result of these events, Dupler was charged by indictment with one
count of theft, a felony of the fifth degree, possession of cocaine, a felony of the fifth
degree, aggravated possession of methamphetamine, a felony of the third degree,
possession of drug paraphernalia, a misdemeanor of the first degree, and falsification a
misdemeanor of the first degree.
{¶ 4} On March 27, 2024, Dupler entered pleas of guilty to each count of the
indictment. The trial court sentenced Dupler to nine months incarceration for theft and
possession of cocaine, two years incarceration for aggravated possession of
methamphetamine, and 30 days jail time for possession of drug paraphernalia and
falsification. The trial court ordered Dupler to serve the theft and drug possession charges
consecutively for an aggregate total of 42 months incarceration.
Licking County, Case No. 2024 CA 00035 3
{¶ 5} Dupler filed an appeal and the matter is now before this court for
consideration. He raises two assignments of error as follow:
I
{¶ 6} "THE TRIAL COURT'S SENTENCE OF APPELLANT WAS CONTRARY
TO LAW, BECAUSE THE TRIAL COURT IMPOSED CONSECUTIVE SENTENCES
WITHOUT MAKING THE FINDINGS REQUIRED UNDER R.C. 2929.14(C)(4) AT
APPELLANT'S SENTENCING HEARING."
II
{¶ 7} "THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES
WAS NOT SUPPORTED BY THE RECORD."
I, II
{¶ 8} Because they are interrelated, we elect to address Dupler's assignments of
error together. Dupler argues his sentence is contrary to law because the trial court failed
to make the findings required by R.C. 2929.14(C)(4) and further argues the imposition of
consecutive sentences is not supported by the record and based on improper
considerations. We disagree.
Applicable Law
{¶ 9} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 2016-Ohio-1002 ¶ 22; State v. Howell, 2015-Ohio-
4049, ¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's standard of review as
follows:
Licking County, Case No. 2024 CA 00035 4
(2) 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.
{¶ 10} R.C. 2929.14(C)(4) governs consecutive sentences. That section states:
(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
Licking County, Case No. 2024 CA 00035 5
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.
{¶ 11} "R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court's
consecutive-sentence findings, and the trial court's findings must be upheld unless those
findings are clearly and convincingly not supported by the record." State v. Gwynne, 2023-
Ohio-3851, ¶ 5. "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
Licking County, Case No. 2024 CA 00035 6
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 conviction as to the facts sought to
be established." Cross v. Ledford, 161 Ohio St. 469, (1954), paragraph three of the
syllabus.
{¶ 12} When imposing consecutive sentences, a trial court must state the required
findings at the sentencing hearing. State v. Bonnell, 2014-Ohio-3177, ¶ 29. Because a
court speaks through its journal, the court should also incorporate its statutory findings
into the sentencing entry.
Id. However, a word-for-word recitation of the language of the
statute is not required.
Id. As long as the reviewing court can discern the trial court
engaged in the correct analysis and can determine the record contains evidence to
support the findings, consecutive sentences should be upheld.
Id.
Dupler's Sentence is Not Contrary to Law and is Supported by the Record
{¶ 13} We first note Dupler did not object during the sentencing hearing to the
imposition of consecutive sentences, thereby forfeiting all but plain error. State v. Wilson,
2013-Ohio-1520 (10th Dist.) ¶ 8. An error not raised in the trial court must be plain error
for an appellate court to reverse. State v. Long,
53 Ohio St.2d 91 (1978) at paragraph
one of the syllabus; Crim.R. 52(B). In order to prevail under a plain error analysis,
appellant bears the burden of demonstrating that the outcome of the proceeding clearly
would have been different but for the error.
Id. at paragraph two of the syllabus. Notice of
plain error "is to be taken with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice."
Id. at paragraph three of the syllabus.
{¶ 14} Dupler has failed to raise or argue plain error and additionally argues plain
error is inapplicable. Upon review of the record, however, we find no error plain or
Licking County, Case No. 2024 CA 00035 7
otherwise. We find the trial court engaged in the correct analysis. It found consecutive
sentences were not disproportionate to the seriousness of Dupler's conduct, the danger
he poses to the public, and were further necessary because Dupler was on community
control in Perry Country when he committed the instant offenses, was not complying with
orders in that matter, and had two outstanding warrants in Franklin County. Transcript of
March 27, 2024 sentencing (T.) 16-17. As mentioned above, a word-for-word recitation
of the applicable factors is unnecessary. We are able to discern from the record before
us that the trial court engaged in the correct analysis. Upon review of the record we
further find it contains ample evidence to support the trial court's consecutive sentence
findings.
The Imposition of Consecutive Sentences was not Based on Improper Considerations
{¶ 15} Dupler also argues the trial court based its imposition of consecutive
sentences on his inability to pay restitution. He directs us to the trial court's comments
during sentencing pointing out that Dupler's prior record and history of non-compliance
with previously ordered community control sanctions alongside Dupler's declaration prior
to sentencing that he was fully taking "responsibility for all these charges." Transcript of
sentencing at 16. Based on Dupler's declaration of taking responsibility, the trial court
asked if Dupler had with him the restitution he owed for the theft charge. Dupler stated
he did not. The trial court then made it clear that it found Dupler's claims insincere:
What kind of crap is that you are taking responsibility. The only thing
you've done is be caught and stuck in jail, and now you want
released. We're going to judge you by your actions, and it is bad
Licking County, Case No. 2024 CA 00035 8
enough that you're stealing from the business people here, and then
you return to sell drugs to people at hotels. What kind of -- what good
is that doing the community? I don't see any. You are only
encouraging people to steal so they can get more money to buy stuff
from you. I don't see any redeeming qualities here, Mr. Dupler.
{¶ 16} T. 18.
{¶ 17} As the State points out, when read in their entirety it is clear that the trial
court's comments simply reflect its belief that Dupler was feigning remorse, not that it
was basing consecutive sentences on his inability to pay restitution the day of
sentencing. We therefore reject Dupler's claim that the trial court based its imposition of
consecutive sentences on his inability to pay restitution the day of sentencing.
Conclusion
{¶ 18} The trial court's imposition of consecutive sentences is supported by the
record and is neither contrary to law, nor based on improper considerations. Accordingly,
the first and second assignments of error are overruled.
{¶ 19} The judgment of the Licking County Court of Common Pleas is affirmed.
By King, J.,
Hoffman, P.J. and
Baldwin, J. concur.
