[Cite as State v. Foster,
2025-Ohio-836.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114148
v. :
TERRY FOSTER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 13, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-670220-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carson Strang, Assistant Prosecuting
Attorney, for appellee.
Brian D. Kraft, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Terry Foster (“Foster”), appeals the trial court’s
imposition of consecutive sentences following resentencing. Upon review, we
affirm.
I. Facts and Procedural History
Foster previously appealed his guilty pleas and sentences in State v.
Foster, 2024-Ohio-2075 (8th Dist.) (“Foster I”). Therein, this court made the
following factual findings:
Foster, and a codefendant whose case proceeded separately, were each
indicted on 26 counts arising from the murder of victim Napoleon
Abrams (“N.A.”), attempted murders of Jacqueline Jones (“J.J.”) and
Joseph Armstrong (“J.A.”) on November 16, 2021, and the murder of
Latrice Burks (L.B.”) on November 22, 2021. Counts 1 through 5
carried one-year, three-year, or five-year firearm specifications.
Counts 6 through 19 carried one-year or three-year firearm
specifications. Counts 20 through 26 were drug related.
On February 1, 2023, represented by counsel, Foster pleaded guilty to
(1) Count 2, murder of L.B. under R.C. 2903.02(A), an unclassified
felony, with a three-year firearm specification under R.C. 2941.145(A);
(2) an amended Count 8, murder to the lesser included offense of
involuntary manslaughter of N.A., a felony of the first-degree under
R.C. 2903.04, with all firearm specifications deleted; and (3) Count 22,
trafficking, a felony of the third-degree, in violation of R.C.
2925.03(A)(2), with cell phone and cash forfeitures.
On February 24, 2023, Foster was sentenced to 21 years to life as
follows: (1) Count 2: 15 years to life for murder with a three-year gun
specification served prior and consecutive to the underlying sentence;
(2) Count 8: three years for involuntary manslaughter to be served
consecutive to Count 2; and (3) Count 22: 12 months for drug
trafficking with cash and cell phone forfeitures to be served
concurrently with Count 2.
(Footnotes omitted.) Id. at ¶ 4-6. In Foster I, Foster argued that the trial court erred
in imposing consecutive sentences without making any of the findings required by
R.C. 2929.14(C)(4) at the sentencing hearing or in the sentencing entry. Id. at ¶ 31.
The State conceded that the proper findings were not made. Id. at ¶ 33. Accordingly,
we vacated Foster’s consecutive sentences and remanded the matter to the trial
court for resentencing. Id. at ¶ 34.
Foster’s resentencing hearing was held in June 2024. The State
incorporated the sentiments expressed at Foster’s original sentencing hearing by
reference and advised that it spoke to N.A and L.B.’s families, who asked that the
prior sentence be reinstated or increased. The State also briefly revisited the facts
of the case:
As I’m sure you remember, Your Honor, in the first homicide, in
[N.A.’s], [Foster’s] codefendant, Charnisha Wilson, called Foster over
as she got into some sort of an altercation at the house. Terry Foster
then kicked in the door, came in and began shooting, striking [N.A.]
and killing him. Charnisha Wilson and Terry Foster fled the scene in
Foster’s vehicle. Realtime crime cameras tracked his vehicle from that
street all the way back to his apartment. Five days later, the killing of
[L.B.], Realtime crime cameras captured Foster’s vehicle literally
leaving the apartment building and lot there that he lived at all the way
to the crime scene where [L.B.] was shot and killed. Part of the
Realtime crime center footage actually showed Foster’s vehicle
travelling past Charnisha Wilson, turning around to catch up with her
again. As [L.B.] approached the vehicle, she was shot and killed from
the passenger’s side of that vehicle. It’s the State’s supposition that
Charnisha Wilson was the individual in that second homicide who shot
and killed [L.B.]. Obviously, the State was proceeding on a complicity
theory in that case, Your Honor.
I know we’re here specifically for the consecutive sentencing findings.
The State would like to just place on the record that pursuant to R.C.
2929.14(C)(4), the offender was indicted for the prior case, that
felonious assault, on October 4, 2021, and these offenses were
committed in November 2021. So consecutive sentences are necessary
to protect the public from future crime or to punish the offender and
they’re not disproportionate to the seriousness of the offender’s
conduct; and then under that little (a) section would be that the
offender was under indictment at the time.
(Cleaned up.) (Tr. 5-7.) The defense responded, requesting that Foster’s
involuntary manslaughter sentence be run concurrent to the underlying life
sentence.
The trial court then made the following findings on the record:
The Court has reviewed the principles and purposes of felony
sentencing, listened to what’s been said today by the State, listened to
what’s been said by [Foster’s] relative to the resentencing hearing,
which is the only matter that’s before the Court at this time. The Court
has listened and recalled the victim impact statements where the
prosecutor indicated that they would like to get more time for [Foster],
and I have to formulate my decision based upon the overriding
principles and purposes of felony sentencing, namely, to protect the
public from future crime by this defendant or others, and to punish the
offender using the minimum sanctions that the Court determines
accomplish those purposes without imposing an unnecessary burden
on the state or local government resources. To achieve these purposes,
the Court has considered the need for incapacitation, deterrence,
rehabilitation, and providing for restitution. The Court has also
considered the seriousness and recidivism factors relevant to the
offense and [Foster] pursuant to R.C. 2929.12. The Court must, and
will, ensure that the sentence being imposed does not demean the
seriousness of the crime, the impact it has on the victims and is
consistent with other similar offenses committed by like offenders.
Finally, the sentence is not based on any impermissible purposes,
namely, the race, ethnic background, gender, or religion of Foster.
...
The Court, having reviewed the principles and purposes of felony
sentencing, would indicate that the Court imposes prison terms
consecutively finding that it is necessary to protect the public from
future crime or to punish [Foster]; that consecutive sentences are not
disproportionate to the seriousness of [Foster’s] conduct and to the
danger [he] poses to the public; and that [Foster] committed one or
more of the multiple offenses while [he] was awaiting trial or
sentencing or was under a community control or was under post-release control for a prior offense. It’s my recollection that he had been
under indictment for felonious assault [on October 4, 2021] and was
presently on bond.
Id. at 20-23.
The State noted that the trial court could also make findings under R.C.
2929.14(C)(4)(b) and (c), emphasizing that “we do have the death of two individuals,
that being [N.A.] and [L.B.], and I don’t think there’s anything greater or more
serious that the taking of another person’s life, much less two other people’s lives.”
Id. at 26-27. The trial court advised that the death of two people was a basis for its
imposition of consecutive sentences and further found:
[I]n an abundance of caution, the Court will indicate that the
consecutive finding is necessary to protect the public from future crime
and to punish [Foster] and that consecutive sentences are not
disproportionate to the seriousness of [his] conduct and to the danger
[he] poses to the public; and that at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the
harm caused by said multiple offenses 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 [Foster’s]
conduct.
Id. at 27-28.
The trial court sentenced Foster as follows:
The court imposes a prison sentence at the Lorain Correctional
Institution of 21 years to life. Foster is sentenced to 15 years to life as
to Count 2. Three-year gun specification to be served prior to and
consecutive to underlying sentence as to Count 2. Foster advised of
Reagan Tokes sentencing. . . . Foster is sentenced to the aggregate
minimum sentence of 3 years and a maximum sentence of 4.5 years as
to Count 8 to be served consecutively to Count 2. Foster is sentenced
to 12 months as to Count 22 to be served concurrently with the other
counts.
...
The court imposes prison terms consecutively finding that consecutive
service of the prison term is necessary to protect the public from future
crime or to punish Foster; that the consecutive sentences are not
disproportionate to the seriousness of Foster’s conduct and to the
danger he poses to the public; and that Foster committed one or more
of the multiple offenses while he was awaiting trial or sentencing, was
under a community control, or was under post-release control for a
prior offense, at least two of the multiple offenses were committed in
this case as part of one or more courses of conduct and the harm caused
by said multiple offenses 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 Foster’s conduct, or
Foster’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by him.
(Cleaned up.) (Nunc Pro Tunc Sentencing Entry, 06/25/24.)
Foster appeals, raising a single assignment of error for review.
Assignment of Error
The record does not support the trial court’s imposition of consecutive
sentences.
II. Law and Analysis
In his sole assignment of error, Foster challenges his consecutive
sentences, arguing that the trial court did not engage in any meaningful analysis and
the record does not support its findings under R.C. 2929.14(C)(4).
R.C. 2929.14(C)(4) provides that in order to impose consecutive
sentences, the trial court must find that (1) consecutive sentences are necessary to
protect the public from future crime or to punish the offender; (2) such sentences
would not be disproportionate to the seriousness of the conduct and to the danger
the offender poses to the public; and (3) one of the following applies:
(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 postrelease 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.
Moreover, R.C. 2929.14(C)(4) and Crim.R. 32(A)(4) require the trial court to make
statutory findings at the sentencing hearing prior to imposing consecutive
sentences: “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has
considered the statutory criteria and specifie[d] which of the given bases warrants
its decision.’” State v. Bonnell, 2014-Ohio-3177, ¶ 26, quoting State v. Edmonson,
86 Ohio St.3d 324, 326 (1999).
On appeal, a reviewing court must be able to ascertain evidence
supporting the trial court’s findings from the record before it. State v. Wells, 2021-
Ohio-2585, ¶ 71, citing Bonnell at ¶ 29. “A trial court is not, however, required to
state its reasons to support its findings, nor is it required to [recite verbatim] the
statutory language, ‘provided that the necessary findings can be found in the record
and are incorporated in the sentencing entry.’” State v. Sheline,
2019-Ohio-528,
¶ 176 (8th Dist.), quoting
Bonnell at ¶ 37. When evaluating a trial court’s imposition
of consecutive sentences, an appellate court must “review the record, including
findings underlying the sentence” and may modify or vacate the sentence only “if it
clearly and convincingly finds . . . that the record does not support the sentencing
court’s findings under R.C. 2929.14(C)(4) or “the sentence is otherwise contrary to
law.” R.C. 2953.08(G)(2).
On appeal, Foster challenges the trial court’s R.C. 2929.14(C)(4)
findings and does not claim his sentence is otherwise contrary to law. Our review of
the record reveals that the trial court made each of the three required R.C.
2929.14(C)(4) findings during Foster’s sentencing hearing after considering the
principles and purposes of sentencing, parties’ arguments, seriousness of Foster’s
conduct, and wishes of N.A and L.B.’s families. The trial court specifically found
that (1) consecutive sentences are “necessary to protect the public from future crime
or to punish [Foster]”; (2) “consecutive sentences are not disproportionate to the
seriousness of [Foster’s] conduct and to the danger the defendant poses to the
public”; and (3) “that [Foster] committed one or more of the multiple offenses while
[he] was awaiting trial or sentencing,” noting that Foster had been indicted for
felonious assault in October 2021 and was on bond. Emphasizing the death of two
people, the trial court further found “that at least two of the multiple offenses were
committed as part of one or more courses of conduct, and the harm caused by said
multiple offenses 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 [Foster’s] conduct.” These findings were also included in the trial
court’s sentencing entry, which mirrored the language of R.C. 2929.14(C)(4).
Based on the foregoing, we find that the trial court engaged in the proper
analysis, considered the required statutory criteria, and made the necessary findings
before imposing consecutive sentences. Moreover, the record clearly and
convincingly supports the trial court’s findings that consecutive sentences were
appropriate in Foster’s case: N.A and L.B. were killed within days of each other as a
result of Foster’s conduct and he was awaiting trial or sentencing in another case
when that conduct occurred. Since we cannot clearly and convincingly conclude that
the record does not support the trial court’s R.C. 2929.14(C)(4) findings, Foster’s
single assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, J.
EILEEN A. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
