[Cite as State v. Biddle,
2025-Ohio-568.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MATTHEW BIDDLE,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 BE 0035
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 24 CR 33
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, for Plaintiff-Appellee and
Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, for Defendant-Appellant.
Dated: February 20, 2025
–2–
HANNI, J.
{¶1} Defendant-Appellant, Matthew Biddle, appeals from a Belmont County
Common Pleas Court judgment sentencing him to seven to nine years in prison on his
convictions for aggravated trafficking in drugs and having a weapon while under disability,
following his guilty plea. Appellant argues the trial court did not make the findings required
to sentence him to consecutive sentences, consecutive sentences were not supported by
the record, and the court failed to provide him with his right of allocution. Appellant’s
arguments lack merit. The trial court made the required consecutive sentencing findings,
which are supported by the record, and afforded Appellant his right of allocution. Hence,
the trial court’s judgment is affirmed.
{¶2} The charges in this case stem from a traffic stop on November 11, 2023,
where Appellant was the driver and he had one passenger. Methamphetamine and a
gun were found in Appellant’s vehicle.
{¶3} On February 8, 2024, a Belmont County Grand Jury indicted Appellant on
charges of aggravated trafficking in drugs, a second-degree felony in violation of R.C.
2925.03(A)(2) and (C)(1)(d) (Count 1); aggravated possession of drugs, a second-degree
felony in violation of R.C. 2925.11(A) and (C)(1)(c) (Count 2); and having a weapon while
under disability, a third-degree felony in violation of R.C. 2923.13(A)(3) and (B) (Count
3). The drug charges both carried specifications for forfeiture of money in a drug case.
Appellant initially entered a not guilty plea and the matter was set for a jury trial.
{¶4} On July 16, 2024, the parties informed the trial court that they had reached
a plea agreement. Appellant agreed to plead guilty to the charges in the indictment. In
exchange, Plaintiff-Appellee, the State of Ohio, agreed to recommend a three-year
sentence. The trial court held a change of plea hearing, accepted Appellant’s guilty plea,
ordered a presentence investigation (PSI), and set the matter for sentencing.
{¶5} On July 29, 2024, the court proceeded with the sentencing hearing. The
court found that Counts 1 and 2 merged for purposes of sentencing. It then sentenced
Appellant to a minimum of four years on Count 1, with a maximum of six years, and three
years on Count 3. It ordered Appellant to serve his sentences consecutively for a total
Case No. 24 BE 0035
–3–
sentence of seven to nine years. It also ordered him to forfeit $1,756.50 pursuant to the
specification.
{¶6} Appellant filed a timely notice of appeal on August 2, 2024. He now raises
three assignments of error for our review.
{¶7} Appellant’s first assignment of error states:
THE TRIAL COURT’S SENTENCE WAS CONTRARY TO LAW BECAUSE
THE TRIAL COURT IMPOSED CONSECUTIVE SENTENCES ON
APPELLANT WITHOUT MAKING THE REQUIRED FINDINGS UNDER
R.C. 2929.14(C)(4), EITHER AT APPELLANT’S SENTENCING HEARING
OR IN THE TRIAL COURT’S SENTENCING ENTRY.
{¶8} Appellant argues that the trial court failed to make one of the three required
findings under R.C. 2929.14(C)(4)(a)(b) or (c). He claims the court made this error at
both the sentencing hearing and in the sentencing judgment entry. Thus, he contends
his sentence is contrary to law.
{¶9} When reviewing a felony sentence, an appellate court must uphold the
sentence unless the evidence clearly and convincingly does not support the trial court's
findings under the applicable sentencing statutes or the sentence is otherwise contrary to
law. State v. Marcum, 2016-Ohio-1002, ¶ 1.
{¶10} In this case, the trial court sentenced Appellant to four to six years for
aggravated trafficking in drugs and three years for having a weapon while under disability.
Both of these sentences are within the applicable statutory ranges. See R.C.
2929.14(A)(2)(3).
{¶11} As to the issue of consecutive sentences, R.C. 2929.14(C)(4) requires a
trial court to make specific findings:
(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 disproportionate to the seriousness
Case No. 24 BE 0035
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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.
{¶12} It has been held that although the trial court is not required to recite the
statute verbatim or utter “magic” or “talismanic” words, there must be an indication that
the court found (1) that consecutive sentences are necessary to protect the public from
future crime or to punish the offender, (2) that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger posed to
the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State
v. Bellard, 2013-Ohio-2956, ¶ 17 (7th Dist.). The court need not give its reasons for
making those findings however. State v. Power,
2013-Ohio-4254, ¶ 38 (7th Dist.). A trial
court must make the consecutive sentence findings at the sentencing hearing and must
additionally incorporate the findings into the sentencing entry. State v. Williams, 2015-
Ohio-4100, ¶ 33-34 (7th Dist.), citing State v. Bonnell,
2014-Ohio-3177, ¶ 37.
{¶13} The trial court clearly made the first two required consecutive sentencing
findings, both at the sentencing hearing and again in its judgment entry. As to the first
finding, at the hearing, the court found that “consecutive prison terms are necessary in
this action to protect the public from future crime and to punish the defendant.”
Case No. 24 BE 0035
–5–
(Sentencing Tr. 14). And as to the second finding, the court said “[c]onsecutive sentences
are not disproportionate to the seriousness of defendant’s conduct and to the danger he
poses the public.” (Sentencing Tr. 14). The court restated these findings in its judgment
entry. (August 1, 2024 JE, p. 2).
{¶14} Appellant takes issue with the third required finding. The trial court relied
on the R.C. 2929.14(C)(4)(c) finding for consecutive sentences, which provides: “The
offender's history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.” The trial court did in
fact make this finding at the hearing by stating, “the Court also finds that . . .
nonconsecutive sentences . . . will not adequately punish the defendant and protect the
public from future crime[.]” (Sentencing Tr. 15). It made this statement after it had already
detailed Appellant’s extensive criminal history, noting his felony convictions for
possession of cocaine, attempted robbery, possession of drugs, bank robbery with force
or violence, attempted grand theft, trafficking, endangering children, having weapons
under disability, illegal manufacture of drugs, and aggravated possession of drugs.
(Sentencing Tr. 12-13). Also, the trial court repeated its finding in its judgment entry.
(August 1, 2024 JE, p. 2).
{¶15} As the State points out, the only words the court did not use here were “the
offender's history of criminal conduct demonstrates”. As set out above, the trial court is
not required to recite the statute verbatim or utter “magic” or “talismanic” words as long
as there is an indication that it made the three statutorily-required findings. Bellard, 2013-
Ohio-2956, ¶ 17 (7th Dist.). The court indicated here that it was making the finding
regarding Appellant’s history of criminal conduct. The court took the time to detail
Appellant’s extensive record and found that nonconsecutive sentences would not
adequately punish Appellant and protect the public from future crime. Thus, the trial court
made the required R.C. 2929.14(C)(4) findings before sentencing Appellant to
consecutive sentences.
{¶16} Accordingly, Appellant’s first assignment of error is without merit and is
overruled.
Case No. 24 BE 0035
–6–
{¶17} Appellant’s second assignment of error states:
THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES
WAS NOT SUPPORTED BY THE RECORD.
{¶18} Here, Appellant argues that consecutive sentences are not supported by
the record.
{¶19} The trial court relied heavily on Appellant’s criminal record. It cited to
Appellant’s felony convictions for possession of cocaine, attempted robbery, possession
of drugs, bank robbery with force or violence, attempted grand theft, trafficking,
endangering children, having weapons under disability, illegal manufacture of drugs, and
aggravated possession of drugs. (Sentencing Tr. 12-13). It noted Appellant has been to
prison four different times and also has a juvenile record. (Sentencing Tr. 9). Additionally,
the court pointed out that Appellant has violated his probation six times. (Sentencing Tr.
9). And the court emphasized that Appellant already had a prior conviction for having a
weapon while under disability and knew better than to do it again. (Sentencing Tr. 9).
The court found Appellant did not respond favorably to prior sanctions in the past and he
has continued to engage in the same criminal behavior, which demonstrated a likelihood
of recidivism. (Sentencing Tr. 13). And the court noted that while Appellant blames drugs
for many of his problems, he has not sought treatment. (Sentencing Tr. 10). The trial
court’s findings are all supported by the presentence investigation.
{¶20} Appellant asserts that while the trial court relied on his criminal history to
impose consecutive sentences, it was required to have another basis on which to find
that consecutive sentences were needed to protect the public from future crime or to
punish the offender. Appellant seems to claim that in State v. Ray, 2023-Ohio-2375, ¶ 61
(7th Dist.), this Court held that the trial court must have some evidentiary basis, other than
an offender’s criminal history, to sentence him to consecutive sentences. But this Court
never made such a ruling. In fact, in Ray, we found that the appellant’s criminal history
and the violent nature of his offense supported consecutive sentences. Id. at ¶ 64.
{¶21} Appellant also contends the trial court was “scraping the bottom of the
barrel” by citing to his juvenile record. The trial court did mention Appellant’s juvenile
detention, but it was just one of the many aspects of Appellant’s criminal history that the
Case No. 24 BE 0035
–7–
court mentioned. (Sentencing Tr. 9). It was not stretching for a reason to impose
consecutive sentences as Appellant suggests.
{¶22} Additionally, Appellant argues that because another person was in the car
with him when the drugs were discovered, it is questionable whether the drugs even
belonged to him. But as the State points out, Appellant pleaded guilty in this case. Thus,
he admitted his guilt and cannot now claim perhaps someone else was to blame.
{¶23} Finally, Appellant points to his positive family and employment history as
weighing against consecutive sentences. And Appellant asserts that while the trial court
also relied on his drug abuse, it did not consider that perhaps Appellant did not have the
resources for treatment. The court, however, did consider Appellant’s relationship with
his family and friends. (Sentencing Tr. 8). But the court then stated it struggled to
reconcile this picture of Appellant with his extensive criminal record. (Sentencing Tr. 8-
9).
{¶24} Given the above, we cannot find the evidence clearly and convincingly does
not support the trial court's findings or the sentence is otherwise contrary to law. See
Marcum, 2016-Ohio-1002, ¶ 1.
{¶25} Accordingly, Appellant’s second assignment of error is without merit and is
overruled.
{¶26} Appellant’s third assignment of error states:
BECAUSE THE TRIAL COURT DID NOT AFFORD APPELLANT HIS
RIGHT OF ALLOCUTION TO RESPOND TO STATEMENTS MADE BY
THE TRIAL COURT DURING SENTENCING, AS REQUIRED UNDER
CRIM.R. 32(A)(1), THE TRIAL COURT’S SENTENCE OF APPELLANT
WAS CONTRARY TO LAW AND A VIOLATION OF APPELLANT’S RIGHT
TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE
OHIO CONSTITUTION.
{¶27} In his final assignment of error, Appellant contends that the trial court did
not afford him a chance to address it after speaking to him. He acknowledges that the
court initially permitted him to speak at sentencing. But he contends he attempted to
Case No. 24 BE 0035
–8–
speak later in the hearing and the court would not allow him to do so. Appellant points to
the following exchange:
THE COURT: So asking for a chance at this point with this record - -
if you behaved like this person, you would not be sitting at that table. You
would not have a criminal record that goes on and on for page after page.
And it’s not the same crime. There is a host of different crimes,
felonies you have been convicted of.
THE DEFENDANT: Yes. And - - can I speak?
THE COURT: No. It’s not a time to respond. You had a time to
speak.
THE DEFENDANT: I know. I just wanted to tell you what it referred
to. That’s all.
THE COURT: Referred to what?
THE DEFENDANT: My criminal history. With drugs. Being on
drugs. I mean it’s not like - -
THE COURT: Then why did we get here today without you checking
yourself into a residential program?
You stood up and you complained that nobody gave you the chance
to go into treatment. When you were sent to prison all these times before,
you said the sentence was either too long or too short to qualify for the
programs.
You were released. Why not do it, yourself? If you were struggling
now prior to this charge, why not do it yourself?
THE DEFENDANT: Well - -
THE COURT: We’re done with discussions. That’s where I’m at.
Case No. 24 BE 0035
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(Sentencing Tr. 9-11).
{¶28} Appellant contends the trial court’s failure to allow him to speak at this point
violated his right to allocution pursuant to Crim.R. 32(A)(1), rendering his sentence
contrary to law.
{¶29} Pursuant to Crim.R. 32(A)(1), at the time of sentencing, the trial court shall:
“Afford counsel an opportunity to speak on behalf of the defendant and address the
defendant personally and ask if he or she wishes to make a statement in his or her own
behalf or present any information in mitigation of punishment.”
{¶30} This Court has discussed what the right of allocution pursuant to Crim.R.
32(A)(1) entails:
Before sentencing, trial courts must strictly adhere to Crim.R. 32,
which guarantees the right to allocution. State v. Jones, 7th Dist. No.
02BE65, 2003-Ohio-3285. A Crim.R. 32 inquiry is “much more than an
empty ritual; it represents a defendant's last opportunity to plead his case
or express remorse.” Id. citing State v. Green,
90 Ohio St.3d 352, 359-60,
738 N.E.2d 1208,
2000-Ohio-182. Before sentencing, trial judges must
unambiguously address themselves to the defendant and should leave no
room for doubt that the defendant has been issued a personal invitation to
speak prior to sentencing. Green, 90 Ohio St.3d at 359,
738 N.E.2d 1208,
citing Green v. U.S. (1961), 365 U.S. 301,
81 S.Ct. 653,
5 L.Ed.2d 670.
State v. Crable,
2004-Ohio-6812, ¶ 19 (7th Dist.).
{¶31} Prior to the above exchange cited to by Appellant, the trial court listened to
a statement by Appellant’s counsel, read a letter submitted by Appellant’s friend on his
behalf, and asked Appellant if he wished to speak. (Sentencing Tr. 4-7). The court then
invited Appellant to “speak freely.” (Sentencing Tr. 7). Appellant took the opportunity to
speak to the court on his own behalf. (Sentencing Tr. 7-8). He took responsibility for his
criminal record, he explained the circumstances surrounding him having a weapon, he
acknowledged a drug problem, he said he has never been offered treatment, and he
asked for leniency from the court. (Sentencing Tr. 7-8). The court thanked Appellant for
his statement. (Sentencing Tr. 8). It then went into a discussion of its findings, including
Case No. 24 BE 0035
– 10 –
Appellant’s criminal history. (Sentencing Tr. 9-10).
{¶32} Appellant claims the court should have given him an opportunity to address
his criminal record after the court discussed it. Appellant relies on the following in support:
“Thus, ‘[a] trial court can violate a defendant's right of allocution if it does not allow the
defendant to respond after new information is introduced and considered by the court at
the sentencing hearing.’” State v. Brill, 2023-Ohio-404, ¶ 15 (3d Dist.), quoting State v.
Fowler,
2022-Ohio-3499, ¶ 17 (6th Dist.). Appellant claims that when the trial court
discussed his criminal record, this was “new information” that the court introduced and
considered, which would have required that the court provide him with a chance to
respond.
{¶33} Appellant’s citation to this proposition of law is misleading. In Brill, the Third
District did not find the trial court had violated Brill’s right of allocution. The appellate court
noted that the “new” information put forth by the trial court was already in the record and
was not actually “new.” Id. at ¶ 18. And in Fowler, while the Sixth District did find the trial
court violated Fowler’s right of allocution, this was based on the trial court judge putting
forth facts regarding what the judge’s wife had noticed regarding the crime that were not
part of the record. Fowler, at ¶ 17-18.
{¶34} In this case, Appellant’s criminal history was not “new” information to
Appellant. Appellant would be aware of his own criminal history. Moreover, at the
beginning of the sentencing hearing, defense counsel stated that he had the opportunity
to review the PSI with Appellant. (Sentencing Tr. 5). The PSI contains Appellant’s
criminal history. So Appellant was not faced with “new” information after the trial court
provided him his right of allocution.
{¶35} Accordingly, Appellant’s third assignment of error is without merit and is
overruled.
{¶36} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, J., concurs.
Robb, P.J., concurs.
Case No. 24 BE 0035
[Cite as State v. Biddle, 2025-Ohio-568.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
